*1 SEARCY, R. as Trustee Jason Trust, Exempt Assets
Petitioner,1 RESOURCES,
PAREX
INC., Respondent Searcy, R. as Trustee
Jason Exempt Assets
Trust, Petitioner, (Bermuda),
Parex Resources
Ltd., Respondent 14-0293,
No. No. 14-0295
Supreme Court Texas. 10, 2015
Argued December June
OPINION DELIVERED: September
Rehearing Denied convenience, to refer bankruptcy vent. For we continue party 1. This is a trustee and suc- Resources, predecessor-in-interest’s of ERG LLC cessor to the claims trustee via its to the ("ERG”) originally company ("ERG”). that was name —the us, before but which since become insol- has *4 Kubin, Jeffrey Kaim, Anthony C. N. An- Dodson, gus Absmeier, Joseph R. Michael Gibbs, LLP, Robin C. Gibbs & Bruns TX; Houston for Petitioner. Nettles, attenuated Falcon, Texas were too fortuitous and Eugene M. Jim
Amy C. Harris, Jr., Lauren Beck Mark for Aycock D. the exercise Runions, Porter Stamey, Richard Harris entity over the be consistent due TX, O’Neill, L.L.P., Har- Hedges, Houston Indeed, considering the ex- even process. PC, O’Neill, riet, Office of Harriet Law tent of the communications between TX, Intrn’l for Ramshorn Ltd. Austin share- entity and the Bermudian Canadian in Texas—communica- holder’s executives Falcon, Nettles, Eugene M. Jim Amy C. and, voluminous, certainly Harris, tions that Jr., Aycock Lauren Beck Mark D. Runions, Stamey, days, Porter is usual these electronic—the Ca- Harris Richard TX, L.L.P., Houston Hedges, entity nadian had no control where Resources, Inc. employees share- Bermudian Moreover, happened holder to be located. delivered JUSTICE WILLETT company not desire Canadian did Court, in CHIEF opinion of the which ongoing relationship create HECHT, GREEN, JUSTICE JUSTICE laws, profit enjoy of our the benefits n JOHNSON, JUSTICE JUSTICE economy. Bermu- thriving from our LEHRMANN, and JUSTICE DEVINE shareholder shares relat- dian who owned joined. it does ed the Colombian assets—and in- complicated jurisdiction This case *5 Colombian, matter those assets countries, multiple corporations, volves not Texan—could located employees have continents. and world; the location of its anywhere summary. A SparkNotes is the Here Texas, correspond- executives in and their entity was the sole shareholder Bermudian en- ing communications with the Canadian of another of Class A shares Bermudian totally This coinci- tity, were fortuitous. oil and entity that owns certain Colombian jurisdiction is insufficient confer dence The Bermudian share- gas operations. entity. over Canadian shares and sought holder to sell these hold, however, also that Texas We agreement, purchase into a share entered specific although gener- not courts have entity. negotiated in with a Texan — jurisdiction over Bermudian owner through, and so the Bermudi- The deal fell al— gas operations. oil the Colombian and buyers. searched other shareholder owner against The claims the Bermudian entity pursued After Canadian alleged shares, turn its executives’ entity Texan sued both the Texas-based entity misrepresentations the Bermudian share- in Texas to a Texas Canadian authority in Texas for tortious interference entity. holder These executives had the purchase agreement. shares, with share themselves out sell the and held entity also sued the Bermudian Texan years. entangle- such over many Such gas opera- of the Colombian oil and owner thus ment with Texas substantial tions in Texas for fraud. enough specific jurisdiction, to confer trial court to so had sufficient evidence entity hold that when the Canadian
We relationship this between hold. But while sought purchase shares of Bermudian alleging malfeasance Texas and the claims entity assets that owns Colombian stemming from the actions of the execu- Bermudian shareholder and did not intend here, they gave of those to business, tives whom develop a Texas did orders, marching is relevant jurisdic- purposefully avail itself Texas’s in- these contacts are entity’s analysis, tion. The Canadian contacts general sufficient confer that focuses on Latin American as- Bermudian owner. sets. judgment thus We affirm the court of (cid:127) Industries, (“Na- Limited appeals. bors”) is company a Bermudian operations in Houston. Background. I. Factual (cid:127) International, Ramshorn corporate Several Limited entities are involved (“Ramshorn”) in this case: is a Bermudian com- pany (cid:127) gas maintained oil op- company ERG is a based Hous- ton.2 erations Colombia. Nabors’ sub- (cid:127) (“Parex sidiary all Resources, owned the Class A Inc. shares Cana-
da”) is a energy company Canadian of Ramshorn. Nabors decided to divest its stake with a company, different Ener- Columbus Ramshorn, requested for its (“Columbus”). bids gy Limited Class A during shares Fall 2011. ERG Later in January Dunne and vari- expressed an in purchasing interest *6 ous colleagues from ERG attended a meet- Arango, shares. gen- Claudia Ramshorn’s ing with representatives Nabors in Hous- Colombia, manager in prepared eral a Peterson, ton. A attorney, Nabors Scott presentation company’s about opera- allegedly claimed that Ramshorn had clean presentation tions there. The indicated title to the operations, Colombian and that rights explore Ramshorn had to Columbus. controlled ERG then sent portion certain of the outer continental shelf off Nabors formal letter of intent Colombia via the waters so- dated “Jag-A called block.” February offering purchase to the shares for million. On the road $31.5 early Dunne, Edgar ERG’s deal, to a to continued conduct due Operating Officer, Chief and Jordan diligence, part by in reviewing documents Smith, Explora- Nabors’ Head of Global in a by virtual data room that tions, was hosted went to Colombia where Ramshorn Texas During ongoing server. negoti- allegedly represented that it per- a 95 had ations, of global exploration, Nabors’ head block, Jag-A subject interest cent to Smith, approval by Jordan made government. representa- the Colombian various allegedly assets; Ramshorn claimed that it ac- tions about the Colombian Nabors’ this quired through agreement interest diligence due materials identified him as above, 2. As noted we refer to Petitioner bankrupt. bankruptcy as The trustee of the es- tate, "ERG” for convenience since ERG Re- style, as reflected in this case’s and who sources, claims, initially LLC assignee was before the Court. acts as the of ERG's is Jason liability company Searcy. That limited has become R. people you ap- Q: ... Arango Who were president; Ramshorn’s RBC contact? wanted to to him be her Smith think to boss. peared critical previously instrumental Ramshom’s was that had been people A: The Arango required decision-making, and during the 2010 effort sell. contacted large many capi- permission to seek his Well, were those— Q: who had—who Moreover, Smith was expenditures. tal people? who those shares charge of divestment of Nabors’ Oh, I think that all told gee A: whiz. shares, and worked like the Ramshorn con- probably 2010 we ... had back Arango to sell them. companies. tacted 50 Q: it include Parex? Okay. Did began to progress falter. But the deal’s A: Parex. Included an- publicly had Back in Nabors RBC, by being After contacted the Ramshorn nounced desire sell intent, it to a letter sent shares, Canada drafted Royal Bank of and had retained RBC, formally engaged RBC is, thus (RBC), course Canadi- Canada which then facilitate sent the the deal. Wirzba an, as its financial adviser. Smith on of Parex Colom- letter to Nabors behalf Calgary-based RBC em- contacted then bia, wholly which owned one Wirzba, facil- Bevin who worked ployee, subsidiaries, wholly Canada’s owned ultimately which did itating prior sale Parex Colombia has its own Barbados. fearing the ERG not occur. Now officers, corporate board directors and close, again transaction would Smith of Parex Canada. distinct those Wirzba, indicated reached out Smith million. purchase price Nabors was $40 in his deposition ERG: confi- into a and Parex Colombia entered Okay. come a later Q: And did there dentiality agreement after which Nabors you when point time in 2011 gave Parex Colombia access to data if asked them back RBC and went in- confidentiality agreement room. The help you asso- they sell shares and could clause, choice law but cluded in that ciate sense? requested that it be Parex Colombia any A: Once ERG had declined Yes. changed to New York instead. any pursuing project fur-
interest began entertaining multiple then ther, Royal I Bank of Canada contacted shares, purchase for the bids they go them if wanted and asked *7 higher higher.3 Although prices went and companies we back to various the that bidder, Colombia the named the Parex was if they to 2010 and see had talked in bidding by Parex process was orchestrated buying in they if were interested knew During process, the Canada’s executives. the shares.... exchanged nu- Parex Canada’s executives emails, calls, and voicemails with merous request that As a result Smith’s Wirz- counterparts. Nabors The Parex their prior ba to reinitiate contact these with that knew the Nabors Canada executives that putative buyers, RBC—aware Parex in Texas. worked executives expand to its Colombian Canada wanted on March Nabors portfolio Eventually, Parex Canada about —notified subsidiary, arranged for its Bermudian to sell the shares: Nabors’ desire renewed million, to price sequen- $30 $39 offers upped creased its from Colombia its bid Parex million, million, million, tially $50 $40 $55 $45 to to million. to million, $75 ERG in- to million. Meanwhile (Na- II, Holdings Global nature in ownership Jag-A Nabors Limited the its the Global),. result, pur- to into As enter a share block. the to bors deal failed close (ERG SPA). for a time. agreement second Nabors notified chase with a Pa- ERG rex Canada that agreement, the executive deal the terms of ERG Under failed, so and Parex shares, Colombia renewed its to million for agreed pay the $45 offer, million negotiations began. $75 to close on the deal set at a.m. to provided March 15. million be ERG $3 filed this in seeking ERG suit in escrow. Nabors did not make held SPA, performance of the ERG SPA, party to the but it Ramshom a ERG alleging tortious interference contract diligence to provide continued ERG with against Nabors Global Parex Canada. day On the materials. the was ERG SPA sought ERG also a temporary restraining executed, tell Nabors emailed Wirzba order that would bar the sale the Rams- him purchaser, that had found another horn shares. The trial court denied the not men- expressly but did name ERG request, and so suit ERG filed Bermu- Nonetheless, the tion ERG SPA. da. The Bermudian temporarily court en- keep continued to its data room for open joined sale of the shares the while Nabors diligence other bidders to the mate- access court, was yet'before but lifted the It rials. was after that this Parex Colom- restraining appeared. order after Nabors increased its million. bia bid Wirz- $55 dispute The parties exactly when Parex ba told Parex Canada that “if is a there Canada’s executives know came about hiccup closing you’ll ... first SPA. ERG claims this Canada this, After know.” Parex Canada and Na- only point occurred when it was bors contact seis- concerning remained in However, sued Texas. ERG contends relating mic data to the proper- Ramshom Wirzba, email to sent Nabors’ after ties. signed, conveyed SPA was ERG existence because the email ERG Nabors Global failed to close contract used deal the word “deal.” their on time. Pursuant to Wirzha’s “[they’d] assurances be the first event, In any arranged Parex Canada if through, know” deal fell Parex Cana- wholly Barbados to own a new da thereafter inquired executives as to entity Bermudian that was created or- shares, they status interested —as acquire der to the shares: Parex Bermu- years had been for a acquiring few 12,.2012, April. —in day da. On the same Colombian oil This is gas assets. created, which Parex Bermuda was Na- again Parex Colombia increased its when duly bors and Parex Bermuda exe- Global bid, this time to million. On March $75 (Parex purchase agreement cuted a share 2012, however, and Nabors Global SPA). agreement Bermuda agreed closing their extend date 72 signed Bermudian Bermuda resi- hours. Nabors informed Parex Canada using dents funds located Bermuda. it was out an working extension to the guarantor *8 Canada acted for the date, closing of and included a draft pay. amount that Parex Bermuda was to purchase agreement proposed share guaran- The Parex and the Bermuda SPA Parex in this Colombia communication. both tee contained New York forum selec- tion choice of and law clauses. attempt
But the second close failed diligence final During phase, well. subsequently ERG sued Bermuda allegedly contract, learned that for Ramshorn had tortious interference with financial misrepresentations made about also sued Ramshorn for fraud. Parex 66 potential all bases Bermuda, negating of
Canada, the burden and Ramshorn that exist personal jurisdiction for contesting the appearances special filed plaintiffs pleadings.6 over them. jurisdiction trial court’s it The trial court concluded jurisdic personal of The exercise over Parex Canada personal jurisdiction on both tion in Texas state courts turns Ramshorn, Bermu- but not over Parex per law. and state Courts have federal as to appeals court of reversed da. The jurisdiction over a defendant when sonal Canada, undisputed that it noting is (1) the Texas criteria are satisfied: two RBC, contact with but initiated Smith grant jurisdiction;7 long arm statute must judgment with the trial court’s sustained (2) jurisdiction of must the exercise and Ramshorn. respect to Parex Bermuda and state constitu comport with federal process.8 of The guarantees tional due appeal Ramshorn now Both ERG and provides per long contends arm statute for reversal. ERG Texas this Court limits jurisdiction that extends to the sonal that Texas courts have Constitution, so and Parex Bermuda. United States over Parex Canada meanwhile, Ramshorn, process requirements shape argues Texas due federal jurisdictional of Texas the contours courts’ jurisdiction no over it. courts have reach.9 right. Texas appeals got of The court Ramshorn, jurisdiction courts have of Due Process Clause “The Canada and Parex
but not over Parex Amendment constrains Fourteenth Bermuda. authority to bind a nonresident [s]tate’s judgment of its to a courts.”10 defendant II. The Constitutional Contours jurisprudential per lodestar for Under the Personal Jurisdiction jurisdiction, International Shoe sonal a trial Washington,11 v. Company in this whether jurisdictional The issue law, consistent court’s exercise presents question and we case on process requirements turns special with due a trial court’s decision review (1) the must requirements: two defendant plaintiff de bears appearances novo.4 minimum contacts with allegations have established pleading initial burden (2) state; forum the assertion permit a court’s exercise that suffice no cannot offend traditional nonresident personal jurisdiction over the justice.12 play tions of fair and substantial plaintiff has met Once defendant.5 case, analysis to our in this burden, As relevant then assumes this Assurance, Collection, Royal Exch. Ltd. v. En- Type v. 9. Guardian 4. Am. Inc. Cole- Culture 223, P.L.C., Clays, glish 815 S.W.2d man, 801, (Tex.2002). China 805-06 83 S.W.3d (Tex.1991). 226 Republic Drilling Operating, 5. Retamco Inc. v. — -, Fiore, v. 134 S.Ct. 10. Walden U.S. Co., 333, (Tex.2009). 278 S.W.3d 337 (2014). 188 L.Ed.2d Co, 310, Washington, 326 U.S. 11. Int'l Shoe Id.', Belgium, see also BMC N.V. v. Software 154, (1945). L.Ed. 95 Marchand, (Tex.2002). 83 S.W.3d (quoting Id. at 66 S.Ct. Milliken v. See, Expeditions e.g., Mac Mold River Meyer, 311 U.S. 61 S.Ct. (Tex.2007). Drugg, 221 (1940)); Belgium, BMC L.Ed. 278 Software (Tex. Marchand, 83 S.W.3d N.V. v. *9 2002)). 8. Id.
67 contacts sufficient minimum exist when the claims “arise out of’ or are “related to” the “purposefully avails nonresident defendant defendant’s contact with the forum.”16 of activi- privilege conducting itself the Heitner,17 In v. and on Shaffer [s]tate, invoking ties within the forum thus since, several occasions the United States protections the benefits and of its laws.”13 Supreme emphasized Court has the purposeful analy- The nub the availment relationship, not the plaintiff’s defendant’s sis is whether nonresident defendant’s relationship, with the forum state is the conduct and connection with Texas are proper focus the anticipate such that it could reasonably is, analysis; that courts must consider the being court Purposeful haled into here. relationship defendant, between the availment involves contacts that defen- state, forum and the litigation.18 As we dant “purposefully directed” into the fo- explained Michiana Easy Livin’ Coun rum state.14 Holten,19 try, Inc. v. there are three fea provides International Shoe strains two “purposeful tures of the inquiry availment” personal jurisdiction: specific gen- applied personal jurisdic 20 eral. Because both strains are at issue (1) tion: the relevant contacts are those case, this provide we defendant, overview and the unilateral activi governing jurisprudence as to each. ty person of another or a party third is not (2) pertinent;21 contacts establish Specific
A.
Jurisdiction: Contacts
purposeful
availment
must
Out of
the Cause of
Which
fortuitous,
random,
isolated,
rather than
or
Action Arises
attenuated;22
(3)
the defendant must
type
personal
benefit,
first
jurisdic
advantage,
profit by
seek some
specific jurisdiction,
tion is
which is based
itself of
“availing”
jurisdiction.23
vein,
on whether
“minimum-contacts
the defendant’s activities
the same
“give
forum
analysis
state themselves
rise
quality
is focused
and na
stated,
contacts,
Broadly
spe
liabilities sued on.”15
ture of the defendant’s
rather
Thus,
cific
exists when
than
plaintiffs
their number.”24
“the mere
-
Denckla,
235, 253,
-,
1115, 1121,
13. Hanson v.
357 U.S.
78
134 S.Ct.
U.S.
188
1228,
(1958) (citations
(2014).
S.Ct.
fact that
a
to the forum
of which harmed
magazine,
with connections
the content
plaintiffs
jurisd
to authorize
does
suffice
reputation.30
[s]tate
plaintiffs
nonresident
a plain
The
happenstance
iction.”25
words,
defendant has
where the
other
Texas, then, will not
tiffs connection to
deliberately exploited
“continuously and
specific jurisdiction
suffice to confer
alone
market,” specific juris-
state’s]
the [forum
merely
who
deals with a
over a defendant
diction exists.31
during
some
resident
the course
Texas
context, we
Outside
the defamation
result, a
As
endeavor.
defen
unrelated
buyer
in
that where
held Michiana
may
its transactions in such
dant
structure
the fo
profit
from
seller that does
way
foreign
“neither
reaches out to
jurisdic
subject
laws nor
itself to
rum’s
agrees
fully
in
not do business
there,
“pur
which we have
tion”
termed
arising out of the
disputes
all
resolve
poseful[ avoid[ance].”26
]
state,
agreement
in a
the mere
different
allegedly
buyer brings
that
the
fact
the
Applying
principles,
these
Su
to Texas
insuf-
problematic product back
is
pub
preme Court has held that where
confer
ficient to
contemplates
as the
lisher
a forum state
applied
The Court
the seller
Texas.32
any
printed
of its
material and
de
locus
defendant’s
principles
three
—that
seeking
profit
famatory harm causes—
matter,
that
are
ones that
contacts
million
extensively
several
circulating
from
not ran-
purposeful,
contacts must be
spe
copies
magazine
of its
there —there is
fortuitous,
dom, isolated, or
that the
case
jurisdiction.27
cific
This was the
benefit, advan-
must seek some
defendant
Calder,
allegedly
where
fallout
itself of the
tage,
profit
availing
defamatory
involved was
statements
tied
The
holding.33
so
Court
magazine
had its
the state which
—in
largest
Similarly,
unpersuasive
argument
circulation.28
where a
also found
publisher
tens of
circulates
a tort
had somehow “directed”
the seller
copies
magazine
of its
in a
thousands
communicating
phone
into
on the
state,
plaintiffs lack
resi
particular
with a Texas resident.34
state is insufficient
defeat
dence
out,
interpreted Calder
As it turns
we
in a defa
jurisdiction over the defendant
recently
way
Supreme
Court
the same
Supreme
empha
Court
mation suit.29
knowledge that the
Mere
did Walden:
Keeton, holding
point
this
sized
harm
alleged
“brunt” of the
would
into
magazine publisher could be haled
the forum state
profit
in a
it looked to
felt—or have effects—in
state where
court
S.Ct,
—Fiore,
776-77,
-,
1473.
30.
Id.
S.Ct.
U.S.
Walden
25.
1126,
(2014).
L.Ed.2d 12
(emphasis add-
31.
insufficient
knew
Nevada connec-
Colder,
reasoning
of
tions.
at-
improperly
In
the circulation
the defen-
Such
plaintiffs
enough
was
tributes
article
to create
sub-
forum connections
dant’s
to the
“presence” in
forum
defendant and makes
con-
the
state.36
those
stantial
in
Michiana,
jurisdictional
nections
the
in
decisive
like the law en-
seller
Walden,
analysis....
Calder,
Relying on
no no
[the
forcement officer in
gamblers] emphasize that they
suffered
such link
Texas.37 The Michiana court
the “injury” caused
al-
[the
expressly rejected
officer’s]
thus
the “directed-a-
(ie.,
legedly tortious conduct
the de-
from
theory
jurisprudence
tort”
the
sur-
layed
funds)
return of their gambling
rounding
jurisdiction.38 Even if a
they
residing
while
in the forum.
nonresident defendant knows that the ef-
emphasis
This
likewise misplaced.39
its actions
fects of
will be felt
a resident
plaintiff,
knowledge alone is insuffi-
reasons,
For the same
held that a
we
personal jurisdiction
cient to confer
operator,
tour
Utah
about which a Texan
Walden,
Indeed,
nonresident.
the
Jus-
learned via
word mouth
a Texan
point
tice Thomas made a
for
similar
party,
third
into
haled
cannot
Court:
unanimous
on
just
court
the
alleging
basis of
tour
the
Court of
Appeals looked
operator’s
[T]he
[the
for
oc
liability
a death that
knowledge
curred Arizona.40 The
officer’s]
[the
Moki Mac Court
gamblers’]
plaintiff
forum connec-
strong
reviewed
options
analyzing
various
the
view,
In the
tions.
court’s
that knowl-
relatedness between a
con
nonresident’s
edge, combined with its conclusion that
litigation
tacts and the
itself.41 We consid
gamblers]
[the
suffered foreseeable
ered “but-for” relatedness and criticized
Nevada,
analysis
being
harm
the “minimum
satisfied
“too broad
con
inquiry.
approach
contacts”
ceptually
scope.”42
This
the
A proxi
unlimited
analysis impermis-
“minimum contacts”
mate
cause standard
the
hand
other
sibly
plaintiffs
allows a
contacts with
A
presented
inquiry.”43
“too narrow
juris-
sliding
examining
defendant and forum to drive
scale that
involved
analysis.
relationship
[The officer’s]
dictional
actions
between forum
contacts
Georgia
litigation
sufficient con-
problematic
did
create
because
tacts
because
simply
archetypal
Nevada
he
severs
framework of there
allegedly
being
plain-
personal juris
directed his conduct at
two distinct kinds
—Fiore,
—,
Walden,
(citations
See Walden
35.
U.S.
134 39.
at 1124-25
S.Ct.
(2014);
omitted).
L.Ed.2d
cf.
Michiana,
(rejecting
168 S.W.3d
at 788
proposition that
a tortfeasor knows
"[i]f
Expeditions Drugg,
40. Moki Mac River
injury
by partic
the brunt
be felt
will
(Tex.2007).
re-
The dissent
state,
resident
he
ular
the forum
must
note,
theory,
lies on this defunct
as we
mak-
reasonably anticipate being
into
haled
court
ing
validity
on the
turn
actions”).
answer for
there to
his
merits of a tortious interference claim.
Walden,
36.
diction, tacts between the third general.44 specific and ties) the forum State.”48 laid requirement that we adopted we Royal. nonresi “[F]or out in Guardian support contacts to that “if broadly forum states
dent defendant’s
The dissent
there
activ
specific jurisdiction,
an exercise
a nonresident defendant’s
*12
between
the tort
a substantial connection
are the crux of
must be
ities within Texas
operative
claim,
facts
over
jurisdiction”
those contacts and the
have
Texas courts
Therefore,
Supreme
because
Court
litigation.”45
the
tort claim.49 But the
that
advertising
operator’s
plain
the tour
nature of a
Moki Mac
has
clear that the
made
release,
it sent
control
by
and
which
claim
brochures
tiffs
does not
itself
substantially connected to
not
specific
courts have
whether
litigation
against
facts of the
the
operative
the
over the
which
defendants
—al
Colder,
during the
which occurred
the Court
leged events
claims are levied.
not have
“large
Texas court did
circula
trip
magazine’s
Arizona
the
emphasized
—the
operat
California,”50
the tour
specific
tion” in
and noted that
Supreme
600,000
Court
States
...
almost twice
copies,
or.46
United
“[a]bout
State,
process
highest
clarified that
the due
[were]
has since
the level
the next
in
jurisdiction do
specific
also ob
constraints
sold California.”51 The Court
con
of “substantial
require
question
this kind
article in
deed
served
the
nection,”
sources,
empha
concept
that the Court
and [that]
from California
“drawn
harm,
of ...
sized Walden.47
brunt of the
in terms both
the
...
injury
distress and
emotional
short,
reputation, was suffered
jurisdiction,
professional
does
Specific
sum,
Indeed, “in
California
to California.”52
plaintiff happens
on where a
not turn
story
point
the focal
both
be,
where
defen
[was]
does not exist
As we noted
are
of the harm suffered.”53
the forum state
dant’s contacts with
Michiana,
roles
alleged
we must not confuse “the
to the
substantially
not
connected
jurisdic
judge
jury
equating
no of
case. There is
operative facts of the
underlying mer
inquiry
tional
Supreme
as the
points,
on these
debate
rein
emphasized that
rejected attempts
“[to]
its.”
Colder
“consistently
Court has
jurisdictional
at the
‘minimum troduce those concerns
satisfy
the defendant-focused
count-
stage would
a form
double
by demonstrating con-
inquiry
contacts’
"[i]mportantly, Parex
Post at 82. See also
49.
44.
id.
negotiation
bidding activities in
Canada's
Mac,
(citing
Business contacts are
a matter
Perkins’
even
fact,
physical
liability
of
tort
...
though
while
no claims
to any
related
of Ben-
said,
parties
what the
thought,
turns on
guet’s Ohio conduct.63
Supreme
The
judges
intended. Far better
that
critically
Benguet’s
Court
relied on
presi-
jurisdictional
limit
should
their
decisions dent's
of the company’s
maintenance
files
involving
to the former
than
rather
oversight
in Ohio
of
from
business
in trying the
themselves
latter.58
state,64
that
which led
the Court’s later
good
we said then
What
remains
law and
clarification
that
touchstone of
Per-
today.
binds us
analysis
kins
was that Benguet’s principal
place of
was in
business
Ohio.65
B. General Jurisdiction:
So
Contacts
Systematic
Continuous and
a De-
that
case,
A subsequent
v.
Helicópteros
“Essentially
Home”
fendant
Hall,66
general jurisdiction
concerned
over
a
corporation
Colombian
that
went
contemplates
International
Shoe also
meeting,
Houston for
money
a
drew
from a
suits where
“continuous ...
defendant’s
operations
through
bought
within
New York
thought
a state
so
bank
[are]
helicopter-related equipment
substantial and
as to
such
nature
a Texan
justify
against
suit
it on
action
personnel
causes of
company,
sent
trained
Jones,
790,
783,
437,
413,
55. Calder
465
104
U.S.
61. 342
72
U.S.
S.Ct.
58.
Id.
64.
Id.
310,
Washington,
59.
Shoe Co. v.
U.S.
Int’l
Inc.,
154,
Magazine,
(1945).
Keeton v. Hustler
U.S.
66 S.Ct.
Helicópteros were Texas; Thus, the claims with nonresident ration’s contacts defendant.73 when helicopter accident subsidiary, instead related an in-state corporation owns cor- Supreme Court held Peru.68 The ownership ipso is not sufficient this facto contacts, though some poration’s even jurisdiction the nonresident to confer over made, insufficient were periodically general not have owner itself.74 do Courts it.69 to confer general corporate jurisdiction over defendants incorporated in the forum state are neither these cases as a back With principal place business nor have their critical distinc drop, we mindful are relatively there, some substantial absent general jurisdic specific tion between the forum state.75 contacts Although the likelihood tion. step any jurisdiction may increase the assert substantial connection between law, pertinent Having out the we laid state, the ties claims the forum ed the facts this case. apply now it to and the forum litigation itself
between the
question of
are
state
irrelevant
Ill, Application of Personal
general
exists. Rath
whether
Principles
Jurisdiction
*14
er,
jurisdiction
on the defen
general
relies
entangled
being
up
dant
tied
itself
—almost
A. No
Jurisdiction
General
Thus,
forum
state.70
a web—with
over Parex Canada
to
totally
that
unrelated
are
subsidiaries
begin
general jurisdiction over
with
We
state,
laws,
economy,
its
its
forum
summarily,
itwith
Parex Canada and deal
courts
into that state’s
be haled
cannot
lack of con-
given
relatively
extreme
ownership,
merely
their
virtue
Canada and Texas.
nection between Parex
alone,71
ownership
their
held,
appeals
plain,
It is
as the court
Supreme
recent
And more
general
not have
that Texas courts do
general
Court cases have clarified that
over Parex Canada.
jurisdiction
a
bar.
analysis
high
jurisdiction
entails
gen
clear
makes
that
Daimler
Indeed,
general
a court has
a
only present
is
eral
when
only if
“affiliations
over a defendant
its
sys
only
not
has continuous and
sys
so continuous and
with the
are
[s]tate
state,
forum
but
tematic contacts with
essentially
it
at home
tematic
to render
as
to
of contacts
also has these kinds
such
Continuous
the forum [s]tate.”72
at
they
essentially
that
render
to
to this
extent
systematic contacts that fail
rise
—
Bauman,
U.S.-,
416,
AG
134
72. Daimler
at
104
1868.
67.
Id.
S.Ct.
761,
(2014)
746,
(citing
624
S.Ct.
L.Ed.2d
S.Ct,
410,
1868.
68.
Id. at
Goodyear Dunlop
Operations,
Tires
SA. v.
Brown,
131 S.Ct.
564 U.S.
418,
82. v. 86. Id. 85 L.Ed.2d (1985). Indeed, opinion nowhere in this do we in-person highlight difference between a See, Easy Country, e.g., Livin’ Michiana electronic communications. Holten, (2005) Inc. 168 S.W.3d (highlighting that “a nonresident that directs Operating, Republic hope Inc. v. Drill- marketing to Texas in the of 88. Retamco efforts (Tex.2009). Co., ing soliciting subject here in dis- sales is to suit world, in anywhere publisher sought been based to its story sell salacious presumably would have in- Canada that in the readers lived state which way same they teracted with it in the as it was subsequently sued. employees did its here. Parex Cana- Not so here. displayed Parex Canada purposefully da did not avail itself of the ho interest in developing a Texas enter- benefits, profits of privileges, engaging nor it prise, specifically did seek a Texas Rather,
with Texas. the mere coincidence contrary, seller. To the Parex Canada presence Nabor’s completely out here — appears to purposefully have avoided Tex- of Parex Canada’s control—means that the It as. structured transaction so jurisdiction. trial court specific lacked neither benefit from law nor subject Our as much. caselaw confirms We held itself to jurisdiction. Texas courts’ More- in Retamco that when a even defendant over, guarantee the Parex Canada con- Texas, acceptance does not enter its clause, tained a New York selection forum allegedly that implicat- Texas interests are and so did the SPA. Parex Bermuda Those ed in fraud is sufficient confer agreements also contained New York jurisdiction, in part accep- because such choice law As we said Mic- clauses. tance ongoing relationship creates an hiana, “insertion of a clause designating Texas.89 Similarly, we noted Moncrief foreign suggests forum that no local avail- the defendants were interested es- tablishing long-term joint ment was And even venture in intended.”94 more Texas, and that fact was critical to our probatively, arranged for Parex Canada holding they and sub- subsidiary Bermudian to be the sole owner Similarly, stantial contacts with Texas.90 relating shares to Colombian assets. recognized we in Moki Mac that when put are thus to discern purpose- We hard to “get defendant has aimed extensive ful availment of or how Texas law in or from” it business is more Canada “would conducted its activi- have likely to purposefully have availed itself any ties if differently Texas had no law at jurisdiction.91 the Lone Star State’s As all.”95 Calder, Supreme juris- Court held if The dissent states the assets “intentional, diction present when Midland, were located rather than Co- allegedly tortious ... express- [is] conduct lombia, jurisdictional not alter would There, ly aimed at California.”92 as the analysis.96 struggle understand this We way state, Court went out of logic. If located in the assets were Mid- publisher knew that the brunt land, injury have been seek- maga- would be felt where the Canada would ing “its largest buy operations develop zine had circulation”93—the Texan Country, Easy Id. 94. Michiana Livin’ Inc. Hol- ten, (Tex.2005). Indeed, 168 S.W.3d *17 Gazprom, 90. Oil v. OAO Int'l Inc. Moncrief notes, agreement as the dissent itself the that (Tex.2013). 414 S.W.3d 153-54 starting point negotiations was to be for the provision contained a New York choice of law Drugg, Expeditions 91. Moki Mac River specified closing as the loca- (Tex.2007). Bermuda tion. Jones, 92. Calder v. U.S. (1984) (emphasis S.Ct. L.Ed.2d 95. Id. at 787. added). Id. at 1482. 96. Post at 90. al- the it defendants from which Indeed link with the Texas market Moncrief California, materially urged, in profit. legedly Those facts are Californian could from Parex Cana- the ones here. a Tex- entity agreement different to breach its with Colombian, not profit to from wanted ex- da even an plaintiff was as-based —-there Texan, certainly oil are business —the two plaintiff to that would press allusion the it to interchangeable when comes not Yet we held that this eventually sue.97 proper Texas whether is by a nonresi- of behavior sort nonresident courts. to the level does not rise dent defendant the connection to creating a substantial also not initiate the
Parex Canada did merely Texas forum.98 Canada eventually with interactions that in Colombia purchase RBC to sought It Nabors solicited assets Nabors. who banking entity, for its services or- which would investment from a Bermudian potential buyers to of its shares. impossible der find corollary making it have the and calls view Parex Canada’s emails simultaneously We to company for a Texas that light to Nabors in of the fact Nabors is own them. Such behavior insufficient RBC, out turn reached which in notified upon specific jurisdic- courts confer Texas opportunity to Canada, Parex Canada of the ac- tion over regarding Colombian assets— quire shares juris- concluding that is there Ramshorn, a by owned Bermudian assets Canada, fo- the dissent diction company. did not find out Parex Canada emails, calls, and on cuses the number potential counterparty ERG was executives voicemails Canadian for of the purchase relevant Global exchanged people they kneiv worked relatively stage in until a late assets operation.99 for Nabors’ Texas But Thus, not have a deal. Parex Canada did rejected the Supreme Court- Walden operative to the “substantial connection” a defendant simply idea that because litigation. of the facts of his actions will affect knows the effects Canada though claims that Parex ERG state, in a there is someone who lives dealings attempt- through its with Nabors over the Texas, wanted to ed to harm ERG Rather, question before that state.100 The mer- SPA. breach induce Canada’s communica- us is whether Parex above, claims, note are of these as we voluminous, con- tions with however position is fore- not at issue here. ERG’s hold stitute availment. We alleged —the direction closed Michiana they not. This about do case into Texas is not a basis a tort valid Pa- of communications between volume high- specific jurisdiction. As we have instead rex Canada and Nabors. What lighted in both Michiana and Moncrief oil that the controls is the fact Colombian Supreme emphasized in Court as gas that Parex Canada assets wanted Walden, quality proper focus is a Bermu- forum, buy happened be owned contacts the defendant’s oper- company which had some opposed plaintiff. to the residence dian Gazprom, The officer in that case seized cash OAO Oil Int’l Inc. v. 97. Moncrief Nevada, (Tex.2013). trip gamblers on their return 414 S.W.3d 156-57 allegedly his false knew that affidavit he people who lived in Nevada. would affect Id. at 158. — U.S.—, Fiore, 134 S.Ct. Walden *18 (2014). 1124-25, 188 L.Ed.2d 99.Post at 80. “for- spent It is hard to fathom a him Ramshorn large ations. more before sums of during money connection to the operations. Texas than the mere course of tuitous” firm, aof Bermudian who turned accident Moreover, argument Ramshom’s that assets, having out to own such Colombian the simply ATEs were of Na- creatures some Houstonian executives involved accounting sys- bors’ its subsidiaries’ and the sale. unpersuasive. Rather, Arango tems is re- as to president ferred Ramshorn’s Smith appeals affirm therefore the court of We him, in draft materials that sent she on this issue. trial court erred he merely forwarded these to Dunne with- it holding specific jurisdiction that had changing representation. out Such over Parex Canada. entanglement between Na- Ramshorn and bors the supports holding trial court’s Specific C. Jurisdiction it had over claims al- over Ramshorn misrepresentation leging by the Nabors court, agree with the trial We the who the to power executive had actual dissent, of appeals, court the control Nabors Rams- whether sells the trial court had over horn of shares —claims which arise out Ramshorn. Ramshorn cor is Bermuda power. exercise of that This sort of close poration solely Nabors, owned a Ber connection between Ramshorn and Nabors company that muda directs Ramshorn’s random, fortuitous, not is or attenuated— from Houston.' A actions Nabors execu rather it all to general plan was part tive, Smith, president Jordan is also sell the Ramshorn shares via in Tex- talks Investments, (Ramshorn Ramshorn Inc. as, use the and thus Texas forum to make Investments) separate which a company money. responsibilities from Ramshorn. Smith’s not Ramshorn contends that Smith was supervising mergers, Nabors’ ac included employee its and did not him to intend for quisitions, and divestitures. One ERG’s authority represent to have the Texas .in allegations is that Smith acted and held However, negotiations. Ramshorn allowed as president, himself out Ramshorn’s president Smith to hold out as its himself in doing representa so made fraudulent years, for a man- period general its tions in Houston about Ramshorn as ager Arango him to boss. believed her be trying sets that he was to sell to ERG. We portrayed Smith as Rams- had special affirm the denial of Ramshom’s during horn’s to president run-up appearance, because actual and Smith had meetings, and Ramshorn consistent- apparent authority to sell the Ramshorn ly having authority him out held as shares, negoti because actively Smith A sell its shares. persua- Class Nor is it in Texas. ated their sale during meetings sive that sud- Smith denly conveying The trial court found that acted that he stopped Smith the sense president, signing charge as Ramshorn’s the was Ramshorn. Although even company’s drilling contracts. Ramshorn’s SPA list as a Rams- ERG does Smith officer, manager, general Arango, organizational stated that she horn chart which president provided during believed its visit Smith as of Ramshorn well Ramshorn Invest- Colombia referred Smith as Ramshorn’s president. was the who Ramshorn acquiesced ments. Smith executive signed expendi- part being arrangement through off “authorizations for this (ATEs), routinely totally which Arango ture” sent almost controlled Nabors. *19 owners is entanglement with its horn’s appeals affirm the court
thusWe
analy-
jurisdiction
specific
to the
specific juris-
pertinent
court had
that the trial
hold
it
degree to which
analyzing
sis in
actual
because its
over Ramshorn
diction
ability
purposefully availed
of Smith’s
purposefully-
itself
president
apparent
buyer, an enti-
a
jurisdic-
negotiate
with Texas
company of the Texas
availed
forum
is
ty’s
ownership
mere
in the
state
length in
negotiating at relative
tion
general
have
for that
insufficient
state
of its shares
a Texas
for sale
Texas
subsidiary
over
defen-
jurisdiction
directly
claims
arise out
buyer. ERG’s
forum,
dant.103
because
this contact with the
various
that Ramshorn made
they allege
“the
be to blur
To hold otherwise would
during these Texas
misrepresentations
general
distinction between
fundamental
dealings.
firmly
jurisdiction that is
em-
specific
As
jurisprudence.”104
we
our
bedded
No
Jurisdiction
D.
General
noted,
jurisdiction encom-
specific
have
over Ramshorn
out of the
which
defen-
passes cases
arise
Supreme Court’s
light
forum,105and so a
contacts with the
dant’s
Daimler,
do
Goodyear and
we
guidance in
may
court
trial
have
trial court
ERG that the
agree
not
with
respect to
foreign subsidiary
over a
with
Ramshorn.
general jurisdiction over
company and its
parent
claims that
above,
corporation
where
As we note
ownership of
agents
sole
—vested
principal place
of business
not have
does
subsidiary,
control over the sale
and thus
Texas,
Texas,
incorporated
not
shares,
which the subsid-
of its
and with
only limited contacts
it has
where
deeply entangled—
iary’s operations are
it does not have continuous
misrepresented the
its assets. Howev-
rise to
with Texas that
systematic contacts
er,
which
finding
general jurisdiction,
essentially
at home
a level that renders
hand,
depend
not
on the claims
does
in the Lone
State.101
Star
with the
requires
deeper
some
connection
ownership by a
forum state than mere
operations
that Ramshorn’s
urges
Indeed,
serving to
corporation.
local
“ties
from Hous-
managed and controlled
the exercise
bolster
However, these
they were.
ton.
Indeed
that,
not
a determination
based
do
warrant
to es-
pervasive enough
contacts were
ties,
juris-
general
those
the forum has
Rams-
jurisdiction over
general
tablish
inas
diction over a defendant.”106 Just
ERG,
According to
because
horn.102
corpora-
Goodyear,
an American
where
Energy
company, Shona
Houston-based
Luxembourgian,
(Shona)
ownership
International,
tion’s
Limited
owned
French,
shares,
companies was itself
and Turkish
B
and because
Ramshorn’s Class
shares,
to confer
general
A
insufficient
its Class
Nabors owned
subsidiaries,
hold that Nabors’
foreign
Rams-
we
although
But
jurisdiction exists.
—
-,
Bauman,
Drugg,
Expeditions
104.
Mac
U.S
Moki
River
AG v.
101. Daimler
. —
(Tex.2007);
Good-
(2014).
see also
187 L.Ed.2d
134 S.Ct.
(2011).
year,
D. No Jurisdiction over Bermuda happening by accident; chance or occur- Finally, we personal jurisdiction address ring unexpectedly, or without known over Parex Bermuda. appears ERG to cause; occurring without deliberate rely exclusively jurisdic- on its theory that intention; accidental. tion over Parex through Bermuda exists purported ratification of Parex Cana- Synonyms: chance, adventitious, unex- However, da’s contacts with Texas. be- pected, casual, incidental, odd, fluky, cause we no personal hold there is inadvertent, unintentional, unintend- Canada, over Parex rat- ERG’s ed, unplanned, unpremeditated, unwit- ification theory inapposite. ERG’s ting. briefs proposed any have not independent for finding jurisdiction
basis over Parex Bermuda, Antonyms: deliberate, and we intended, therefore affirm the appeals’ court of judgment on this issue intentional, planned.1 personal no jurisdiction general or — Parex Canada’s contacts with Texas specific Parex Bermuda exists. —over anything were but fortuitous.2 Parex Can- intentionally, knowingly,
III. ada purpose- Conclusion fully engaged repeated contacts with To up, sum the trial court did not have negotiate Texas to purchase agree- share specific general jurisdiction over Parex ment, and the fallout from negotia- those Bermuda, Canada and Parex but it did tions directly tied this forum. have specific though not general-juris- — fact, Texas is point the focal of both diction over Ramshorn. For these rea- sons, we affirm contacts judgment alleged and the harm. Yet the court of appeals. disregards Court purpose- Canada’s ful availment of the forum to engage JUSTICE opinion GUZMAN filed an protracted negotiations quali- business concurring part dissenting part, tatively inconsequential while focusing its joined. which JUSTICE BOYD substantive discussion on contacts that are
JUSTICE participate jurisdictionally did not plaintiffs, BROWN irrelevant —the in the decision. Nabors,3 and the assets that are the sub- (10th ed.2014); entities, 1. Black's Law Dictionary "Nabors” refers the Nabors in- Ltd.; Industries, cluding Nabors Nabors In- Merriam-Webster New Thesaurus: Edition (2005) “accidental”); (cross-referencing dustries, Inc.; Services, Corporate (3d Inc.; Holdings Dictionary and Nabors Global Webster’s New International II. We ed.2002); Roget’s distinguish among need not II The New Thesaurus the various Na- (1980); Webster's Collegiate purposes jurisdictional bors entities for Thesaurus (1976); Dictionary analysis Synonyms Corporate Webster’s New because Nabors Services (1973); Webster's New International provided management professional and other Dictio- (2d ed.1953). nary services to the affiliated Nabors entities from its Houston offices and Parex Canada's rele- Resources, 2. “Parex Canada” refers to Parex vant communications directed Na- Inc. bors’s Houston office. company,5 er but ject-matter the contract. The Parex Cana- inquiry Texas-based intentionally engage in necessary into contacts” da the “minimum continued Nabors; alleg- however, “fo- jurisdiction, communications with confer tor- relationship among es these communications constituted on the the defen- cuses forum, dant, Af- litigation.”4 tious interference. Canada know- *21 ingly purposefully numerous fording the court’s and directed due deference trial emails, do, attachments, phone and into implied findings, required as are calls we Texas, thus, tort alleged purposeful negotiation and the occurred Canada’s and Parex in Parex bidding Accordingly, in Texas mini- Texas. Canada’s activities constitute Texas conferring specific communications constitute sufficient jurisdic- mum contacts support the arising minimum contacts to exercise tion Parex Canada for claims over in Court of accordance from those Because the with activities. play of appear traditional notions fair sub- holds that Parex Canada need and arising justice. the operative in stantial Because a Texas court answer claims facts claim arise from Parex directly purposeful from its forum-state ERG’s Texas, contacts with conduct, respectfully I Canada’s dissent. minimum specific Texas have over courts personal juris- specific lynchpin of The Parex Canada. availment, is cen- diction which making The ters on a intentional contacts Court disclaims distinc- defendant’s in-person tion Although with the state. the defen- between communications forum electronically contacts and effectuated communica- dant’s intentional with Texas tions, case, technologically jurisdictional analysis this its does accomplished in but analysis depend just basing jurisdictional the jurisdictional By the does not that. analysis presence premise on the on the erroneous the defendant’s whether connection physical. evaluating to Texas only forum is In Parex Canada’s virtual Texas, specific personal jurisdic- presence the the Court existence Nabors’s (1) ignores tion, questions that Parex reality are Canada’s determinative occurred, pur- communications in Texas. Un- whether a nonresident has surprisingly, characterizing after posefully activity an forum conducted (2) contacts, as minimum and Canada’s communications a connection establish Nabors, as a cause of action from with rather than connection whether the arises contacts. the Court concludes those forum with personal jurisdiction is Canada Here, deliberately Canada en- lacking. negotiation gaged bidding activity Texas, offering millions of for a conclusion thus dollars Court’s dismisses emails, attachments, phone Na- calls as asset owned Texas-based unique contacts, discussing possibility jurisdictional of an bors and irrelevant which in- sulates tortfeasors from ongoing, relationship future business be- nonresident liabili- ty long for as tween their affiliates. Nabors ended the torts as committed through binding the tort discussions because of contract committed virtual Resources, (ERG), means, person. LLC anoth- than in rather Undoubt- S.Ct, — convenience, Fiore, —, I join U.S. 5. For Court in refer- Walden L.Ed,2d 1115, 1121, (2014) (quoting ring Searcy, ERG and Jason R. to both Inc., Magazine, claims, Keeton Hustler U.S. as ERG’s ERG. successor to 104 S.Ct. L.Ed.2d (1984)). technology jurisdictional edly, physi- as a for substitute Court’s Ac analysis. persist technological cordingly, begin by wiE I presence setting forth the cal facts, surely affording innovations will relevant while def proper communication proliferate century progresses, implied findings.6 the 21st erence to trial court’s es- precedent makes the Court which the fall Nabors its announced today especiaEy troubling an tabhshes many intention to exploration- divest dangerous development jurispru- in our gas holdings related oñ and focus Moreover, analysis dence. Court’s driEing operations. A Nabors’s Class regarding specific ju- personal conclusion among shares Ramshorn were the as- places jurisprudence Texas’s out risdiction planned sell, sets and ERG step jurisdictions. other submitted initial offer to purchase *22 13, for shares million on December Court confounds well-set- Because $30 negotiations 2011. As between ERG and precedent juris- and tled conducts flawed proceeded, Nabors I ERG due analysis, join cannot Court’s conducted dictional diligence acquisition attending on the by holding specific the trial court lacked presentation in accessing Colombia and I jurisdiction agree, over Parex Canada. documents in virtual data room however, hosted with the conclusion that Court’s by a Texas February server. On possesses jurisdic- court the trial ERG offer to increased million. International, $31.5 tion Ramshorn Limited over offer, rejected Nabors Na- and ERG’s (Ramshorn), and lacks over Smith, exploration, bors’s head of Jordan (Parex (Bermuda), Parex Resources Ltd. actively pursued buyers wüling other to Bermuda).
pay persistent But more. was and Background I. successively increasing made $35 offers— 22, 2012, February million on then $39 court The trial Parex Canada’s denied 7, 2012, milEon on finally March $45 special appearance, concluding per had 8, 2012; accepted million on March Nabors jurisdiction over Be sonal Parex Canada. mülion ERG’s' offer and executed $45 trial court no fact express cause the made purchase (SPA) share agreement imply we findings, necessary “all to facts on ERG March judgment supported support the [that are] Belgi Meanwhüe, the evidence.” Parex attempted BMC Canada to Software um, Marchand, N.V. 795 contact individuals Colombia to inquire (Tex.2002). Tellingly, fails to purchasing shares, the Court about the Ramshorn articulating foEow the usual convention of but in getting was unsuccessful a response. for proper standard of fact early review Parex Canada contacted findings, importantly, Royal (RBC) and more Bank Canada for assis- tance, replete factual RBC previously Court’s recitation because acted crucial omissions as impermissible Ramshorn’s in an behalf trans- earlier sumptions, which unfortunately permeate action.7 On March Canada Parex argues appeals personal 6. ERG erred court of insufficient establish Canada, failing consider all evidence with the filed but it neither identifies because, considered, Any error is trial court. immaterial the evidence nor ERG’s addresses considering evi- arguments. even without the additional evidentiary cites, I conclude Canada dence ERG as, sufficient initiating established contacts with characterizes Court Nabors The specific jurisdiction. confer regarding The contact with Canada Court, however, (1) concludes the evidence 2012 sale of Ramshorn shares because transaction structure Managing Di- illustrate the to RBC’s an email sent envisioned, a draft SPA Wirzba, of in- Peterson attached rector, with a letter Bevin email, stated the transaction (LOI) to the which The LOI was dated attached. tent Houston, offices in for close at Nabors’s million would offered March $40 provide also Texas. Peterson offered capital of Rams- issued share the “entire if Parex about the assets to Na- additional details the LOI horn.”8 Wirzba forwarded confidentiality agree- sign a Smith. Canada would exploration, Jordan bors’s head (Na- email. The ment that was attached his Peterson following day, Scott Counsel) confidentiality agreement a Texas included emailed General bors’s Associate (Parex a Harris Coun- Manager provision choice-of-law Nicolas Marot Canada’s (Parex Shortly clause. Ventures), ty, venue-selection Taylor of New David thereafter, signed a modi- Parex Canada Exploration Canada’s Vice President confidentiality agree- version and Wirzba fied Development), and Business changed choice- the venue and the offer to clari- ment express gratitude for provisions to New York. Rather A of Rams- of-law only shares fy the Class any changes immediately suggesting To than acquisition.9 horn were available Vice horn shares. David who solicited RBC for lombian the fact that Nabors shares.”); potential purchasers in 2010 and sometime the end after this contacting Nabors’s assets. the same they testified that he sidering second week of March.” Ante services highly eventually which in turn notified opportunity to initiated Development, explained that Parex Canada Parex Canada initiated the contact da Canada RBC Canada’s contacts contacted RBC. ed RBC is because behalf of Ramshorn But evidence also somewhere in the first also did not initiate the interactions were interested in previously President significant, undergoing this "fact” of who initiated "only became involved with Nabors assets....” contact with RBC in 2012 because solicitation”). who then assisted Parex fifty buyers, including Parex Canada see also id. at 76 had with Nabors. order to find Nabors with “early first acquire assisted requested RBC Taylor testified the Court views all of Parex And the reason we contact- Exploration March week or supports a Taylor, corporate sale or trans- Id. at 76 reached they were potential buyers shares Parex Canada of the Nabors in potentially acquiring in 2011 when a bid for the Rams- Nabors quarter investment [2012] beginning (claiming Parex Parex Canada’s at 76-77. Con- It regarding ("Parex out that; reach finding "in ... Canada in contacting acting contact as with RBC (2) to Business banking towards light Nabors that it out to of the Smith Cana- RBC, of its they Co- we on 8. Parex Canada executed ference claims. were sent bia) bidding of its viewing Software eral Counsel” dressed Canada and LOIs that were regarding must defer to the trial court’s emails stated Investments Nabors ended communications sary SERVICES, Suite and continued to 2012, Importantly, Parex Parex Canada reinitiated communications (Emphases RBC’s assistance Canada on March Canada about 2012, be able to action supported Ltd. Parex Canada form the before subsidiaries, signature to RBC 789, support the [trial court’s] courts must at the time. activities (Parex Colombia). Belgium, the Ramshorn Class Houston, added.) help us with a contact. one was addressed to Ramshorn Inc.’s Houston office. The INC.” at "515 W. RBC was able Parex Canada on behalf of his for “NABORS CORPORATE basis of identical, except Capital position block on Scott Peterson’s negotiate (Tex.2002) (explaining re- in Texas after March Parex Canada’s 9, 2012, N.V. v. negotiating opportunity. See BMC TX *23 Therefore, evidence”). So we imply purposefully 77067.” ERG’s Markets two March Resources as "Associate Gen- and bid thought they may to "all facts neces- at negotiation implied finding Marchand, contact Parex tortious-inter- which I believe we with Nabors Greens one was ad- A shares in with Parex Regardless, judgment Calgary, solicited (Colom- Texas. point, LOIs Rd„ one 9, SPA, however, to the draft 8, 2012, Canada Wirzba informed Nabors on March “working on right indicated was the SPA that Parex Canada was willing to include a provision in requested now” and that Nabors’s chief granting SPA Nabors the officer, McConnell, right option provide financial Bruce drilling contact rigs officer, following chief financial the sale’s Canada’s Ken consummation. Pinsky. However, very day, next March accepted Nabors ERG’s increased 3, 2012, March
On Parex Canada con- offer of million for the $45 Ramshorn for provide tracted with RBC Wirzba A Class shares. Peterson informed Wirz- regarding potential advice acquisition ba Taylor by telephone and email that of Nabors’s Ramshorn nego- shares and to ERG, Nabors had executed an SPA with tiate with Nabors on its behalf. Wirzba but also he stated would reinitiate contact that, just emailing did a revised LOI and if the deal with ERG failed to close. Evi- million offer Nabors’s of- Houston $40 dence supports the implied trial court’s 6, 2012, day fice March after Wirz- that, finding 9, 2012, as of March ba discussed the transaction with Nabors’s Canada knew that Nabors deal with Counsel, President Vice and General Lau- Texas-based million that was $45 ra Doerre.10 On March after set close on March 2012.12 learning that Nabors was “marching down path party,” with another in- response Wirzba to Peterson’s March 9 email million, creased the offer to explaining removed Nabors $50 had made a deal with conditions, financing and offered buyer, additional another asked Nabors Wirzba acceptance, incentives for including shor- “reconsider proposal [Parex Canada’s] tening due-diligence period and mak- level million.” up Wirzba followed $55 ing deposit. million by telephone, $8 While with Peterson leaving him a offer, was considering the Parex Canada voicemail requesting information about the *24 granted was access to the virtual data status of Nabors’s executed SPA. Peterson room in Houston so it could responded conduct due to via email: “To an- Wirzba diligence.11 Continuing negotiations, your question, things swer are proceeding again 6, 10. The LOI was on parties sent behalf of Parex involved discussions” March Colombia. 2012 and testified "no there were secrets” in Colombia. upon receiving 11. The record shows that due- appeals court of likewise deferred to diligence request potential purchas- lists from implicit finding "the trial court's Parex that ers, Houston, employees Nabors’s 9, Canada knew on March 2012 that ERG room, upload would data to the virtual data 407, counterparty.” was the 427 S.W.3d which housed on Houston-based servers. Nonetheless, (Tex.App.2014). the Court evi- dently rejects implied finding court's trial 12. One Nabors executive testified that ‘‘[o]n Instead, point. emphasizes on this the Court 9th, March Nabors advised Parex that had "parties dispute exactly when Parex Cana- entered into with [an] SPA ERG and was da’s executives to came know about the ERG scheduled to close that SPA,” transaction on March vaguely ante at concludes "Pa- 15.” Another Nabors executive testified that rex Canada did not find out ERG was Parex Canada was informed "that [Nabors] potential counterparty to Nabors Global for somebody had a deal with else and that it was purchase of the until a relevant assets rela- week”; 76; deal,” scheduled to close the next a Parex tively stage late in the id. at see (“ERG, Canada executive conceded the term also id. at 73 whom Canada implies binding “deal” contract. relatively Further- negoti- did not know until late more, ations, a Parex Canada executive he admitted incorporated turned out to be Texas.”). had heard headquartered "rumours that there were other you originally had understand that apace counterparty our under also with to given until the 15th of March you changes,” I’ll if that them let know SPA. (Parex transaction. Our Despite that Nabors close the client Peterson’s reminder Resources) SPA, sending you, sent will be within executed Wirzba already hour, signed LOI for the interests in which he responsive email continued offer, offer of stat- an increased revised higher to press Canada’s of Febru- presume “I with an effective date ing, the extra didn’t $5mm $75MM 29th. As you ary to discussions.” demonstrated convince terminate weeks, countered, we have been committed past “It’s the fact it was Peterson seeing through, already signed rejection. to this transaction caused the (when is a mate- in a that this offer always attractive we’re believe revised $5mm be!).”13 that should be Notwithstanding for it to rial increase considered position by your organization. that Nabors had a the vehement reminder ERG, contractual commitment offi- Pinsky, chief financial Parex Canada’s conducting dili- persisted Canada due cer, a re- subsequently emailed accessing from the gence, information Houston LOI Nabors’s vised addressed room, and com- virtual data Houston-based office, detailing subsidiary’s intention municating with Nabors’s Houston-based Class A shares for purchase Nabors’s $75 request upload- staff to additional data be later, Pinsky million. than an hour Less to the server for Parex re- ed Canada’s express his sent Nabors another email view. relationship understanding that “a client on the may part of decision [Nabors’s] be
Disregarding earlier assur- Peterson’s interest” and sale Ramshorn [Nabors’s] ances that Parex Canada would notified that Parex Canada “[was] assured Nabors A if the sale Nabors’s Class Ramshorn ready and able to serve notice termi- through, again shares fell once ini- Wirzba nation on a current contract enter into tiated contact with Peterson Houston. negotiations Nabors Co- good faith on March Wirzba called Peterson lombia.” about the status. Peter- inquire deal’s that the deal did son Wirzba informed day, amend- The same and Nabors but an was in close March extension closing date to ed the SPA extend call, phone Wirzba During the works. effective March with an date willingness to alluded to Parex Canada’s Accordingly, Doerre ex- March *25 twenty min- increase the offer and about to that the with plained deal ERG Wirzba offer of an increased utes later emailed $75 clos- had not and the closed terminated (Peterson, to million Nabors’s executives following the ing had been extended to Smith, McConnell). Doerre, for the Monday. Doerre thanked Wirzba email stated: him that “continued interest” and assured if promptly notified Nabors your counterparty that he would be understand
[W]e to a position “in a entertain on Colombia transaction would be the Ramshorn client.”14 the from Addi- yet proposal [Wirzba’s] not transaction. We has closed money any at additional deposition, In his Peterson testified terested point.” agreement, ‘‘[h]aving signed other there point having a no further discussion was signa- Doerre’s included a 14. Laura emails Wirzba,” why which is Peterson with Mr. stating position as "Vice Presi- block ture her in- "[not] Nabors informed Wirzba that was at "NABORS dent and General Counsel” that million tionally, Doerre instructed Wirzba for Nabors’s Class A ad- shares “would need to be any office; offer substantial- dressed to Nabors’s once Houston agree- form the ly the attached draft again, proposed purchaser Parex was ment,” closing which set Houston as the temporarily The sale was re- Colombia. location, Texas County, included a Harris injunction stricted an Ber- issued clause, specified the venue-selection court, injunction but the dis- muda was agreement governed by would be Texas charged April on law. April On formed Canada ERG, According to to Nabors refused subsidiary, Bermuda, a new to exe- morning Monday, close on the March cute an regarding Nabors SPA 19, 2012, despite perform- ERG’s tendered A Class Ramshorn shares. An be- SPA p.m., to suggested ance. Around Nabors tween Parex Bermuda and Nabors closing via email that ERG missed April 12, executed on April 2012. On however, negotiations; should end 2012, the Parex Bermuda ratified board signed proposed ERG never termination acquisition of Ramshorn’s Class A agreement couple faxed shares, subsequently and ERG Pa- added later. hours rex as a Bermuda its tortious- Meanwhile, waiting rather than hear interference suit. Nabors, Pinsky on emailed Peterson the afternoon of 19 to if March inquire later,
deal had closed. A Wirz- few hours II. Discussion email, follow-up asking also sent a Pe- ba long-arm Texas’s statute “extends terson if and Smith had closed. deal personal jurisdiction courts’ ‘as far not respond. Consequently, Nabors did federal requirements constitutional of due 20, Pinsky on March Peter- again emailed ” process permit.’ Software, will BMC son, requesting concerning a call Adver., (quoting U-Anehor shares. Pinsky Ramshorn Pa- stated Burt, (Tex. Inc. v. 553 S.W.2d rex qualified Canada was “more close 1977)). [specific “For State exercise any and honor future covenants” and he personal] jurisdiction consistent due- directly wished to “discuss the number con- process, the making defendant’s suit-related with Nabors with view create a offer.” Na- duct must substantial connection increased Wirzba also emailed Fiore, president general bors’s vice counsel with the forum State.” Walden — -, 20 to emphasize March Canada’s U.S. steps” (2014). desire discuss “next if the trans- words, L.Ed.2d other courts action closed. usually specific personal juris- can exercise consistent with traditional notions diction day, The same enti- ERG sued several justice “when play and substantial fair ties, Canada, including Nabors and Parex (1) the defendant’s contacts *26 the forum with alleging Parex inter- tortiously Canada (2) of state are and purposeful, cause purchase agreement with ERG’s fered from or action arises relates the defen- seeking specific Nabors and perform- Kimich, Spir agreement. contacts.” Star AG v. day, dant’s ance The next 868, (Tex.2010). offering Pinsky resubmitted LOI 310 873 $75 SERVICES, CORPORATE INC.” located at 77067.”. Houston, Rd., 1200, Greens "515 W. XX Suite
86
Purposeful Con-
1.
and
Jurisdiction Over
Sufficient
Specific
A.
Personal
tacts with Texas
Canada Exists
‘purposefully avails
a defendant
“Where
stan-
the proper deferential
Applying
privilege
conducting
of
of
activi-
itself
judg-
trial court’s
of review to the
dard
State,
invoking
thus
ties within the forum
ment,
specific
I would hold
laws,’ it
protections of
the benefits and
its
Parex Canada. Parex Canada
exists over
judicial power of an other-
submits to the
contacts into Texas to
purposely directed
foreign sovereign to the extent
wise
transac-
on a
asset
bid
multi-million-dollar
power is exercised
connection with
explore
possibility
of an
tion and
touching on the
defendant’s activities
relationship be-
ongoing, future business
Mach., Ltd. v. Nicas-
McIntyre
J.
State.”
Na-
affiliates and
tween
Canada’s
2780,
tro,
873, 881,
U.S.
S.Ct.
operations;
with Texas
bors’s affiliates
(2011)
op.) (quoting
(plurality
L.Ed.2d 765
thus,
presence
if the asset owner’s
even
Denckla,
Hanson v.
357 U.S.
merely “coincidental” or a
Texas was
(1958)).
By
87
plaintiff
unilateral actions of a
or a
or
subject
third
intent
not to be
to local
jurisdictions).
inserting
A
But
a
defendant must choose to cre-
choice-of-
party.18
law or
provision
forum-selection
into a con-
ate contacts
for Texas
with Texas
courts to
tract with a forum-state resident will not
specific jurisdiction
have
over claims stem-
negate intentional contact with the forum
contacts,19
ming from those
but the defen-
state. See
Oil Int’l Inc. v. OAO
Moncrief
subjective
reasoning
dant’s
or
intent
be-
Gazprom,
(Tex.2013)
414
154
S.W.3d
hind its decision
establish
those contacts
(recognizing that
“subjective
defendants’
is irrelevant.20
negate
intent does not
their
con-
business
A
can
choose to avoid creat-
tacts”);
Michiana,
see also
168
at
state,
ing
contacts with a forum
such as
(“Generally,
a
clause
forum-selection
“purposefully structur[ing]
transactions
operates
jurisdiction
consent
as
one
protections
avoid the benefits
of a
forum, not
proof
the Constitution
Type
forum’s laws.” Am.
Culture Collec-
other.”). Thus,
would allow no
defendants
tion,
Coleman,
Inc. v.
83 S.W.3d
808 'cannot
insulate
from liability
themselves
(Tex.2002); see
Easy
also
Livin’
Michiana
for a tort
against
committed
Texas
Holten,
Country,
Inc. v.
168 S.W.3d
Texas
simply by including
resident
provi-
(Tex.2005) (explaining
the insertion or
sion in
third-party
stipulating
contract
pro-
deletion
forum-selection clauses can
forum, especially
another
when the tort
regarding
vide some evidence
the parties’
claim does not
from
arise
the contract.21
("The
properly
focus is
willing
on the extent of the
participant”
giv-
the transaction
forum,
action);
defendant’s activities in the
ing
Michiana,
not the
rise to the
cause
plaintiff.”),
residence of the
A defendant thus
(concluding
Although
contacts
a defendant’s
(“[WJhile
may
intentional, Walden,
defendant]
nonresident
[the
134
forum
be
must
pur
to
actually
not
entered the state
have
“physi
not
S.Ct. at
a defendant need
...
property, ‘jurisdiction
chase this real
forum
to establish
cally enter the
State”
merely
the
may
be
because
not
avoided
contacts,
Corp. v.
Burger King
minimum
the fo
physically
not
enter
defendant did
Rudzewicz,
462, 476, 106 S.Ct.
471 U.S.
King,
(quoting Burger
rum state.’”
(1985);
see also
89 (recognizing 105 jurisdiction,” 2174 the relevance to S.Ct. but noted that “physical negotiations contemplated and future entry into State —either defen- interactions); Michiana, 168 S.W.3d at in person through agent, dant an goods, cf. (defendant only seller’s contact 794 with mail or some means—is certainly other a responding purchaser’s Texas to a was Walden, relevant contact.” at offer). 1122. Although Supreme Court re- “questions served about virtual contacts Although the ubiquity phones of cell day,” another see id. at 1125 logic n. area “no longer necessarily means codes dictates that an email with an attachment anything indicate[ ] about the caller’s loca- specific to addressed address be consid- tion,” Michiana, at S.W.3d analogous such, ered to physical mail. As supports evidence a finding that Parex the emails Parex Canada sent to Na- directing phone Canada was calls knew bors with attachments to addressed Furthermore, to Texas.24 Parex Canada’s Houston address jurisdiction- are relevant emails and attachments expressly ad- al contacts. to dressed locations Texas. On March March and March Court, however, The to recognize fails Canada sent LOIs Nabors were Parex Canada negotiation conducted its addressed Nabors’s Houston office. and bidding activities in Texas through signature on blocks Nabors’s email electronic means25 and instead concludes replies to Parex Canada’s repeated bids specific personal jurisdiction lacking is be- address, also contained Nabors’s Houston cause the “assets that Parex Canada want- highlighting further that Parex Canada ed to buy happened to be owned purposefully bidding conducted its and ne- Bermudian company which some Tex- gotiating in Texas—it not “unilaterally as operations.” Ante at 76. The Court contacts,” forming haled Texas into See thus erroneously grounds analysis on MoncriefOil, 414 at 153. Nabors’s presence “coincidental in Texas” Recently, intent, presumed the United Canada’s Supreme States again recognized Court id. at “physical rather than pur- Parex Canada’s presence in prerequisite poseful is not a forum deciding negotiate in conduct— emphasizing the level of demon- commitment acts constitute communications into Florida weeks”; (7) “past straightforward sending over the
strated when the case concerns communications, telephonic an email to written commu- Houston-based executives nications, or electronic communications with a revised LOI to Nabors's addressed facsimiles, the form of e-mails or office; because (8) sending Houston email those communications are to reach directed express Houston-based Nabors executives to forum; specific recipient in a in other willingness enter Canada’s into a words, it is clear that the nonresident defen- subsidiary contract with Nabors’s if a client dant’s were made communications into Flori- relationship would be a factor in Nabors’s da.”). regarding decision the sale of its Ramshorn shares. Although making the Court denies a dis- in-person virtual tinction between com- n, (noting 24. 427 S.W.3d 422 & at munications, analysis ante suggests evidence it was "Parex Canada knew employs story, tells Court see different id. at negotiating with Nabors-related individuals (distinguishing on the basis that Colder Texas”); see state). Moreover, located also Internet Sols. tort occurred in the forum Marshall, (Fla. Corp. v. 39 So.3d the Court never identifies where it believes 2010) (“The negotiation bidding activity of whether certain determination occurred. Oil, tortiously allegedly with Nabors that tions
Texas with Nabors.26 See Moncrief
(agreeing
con-
S.W.3d at 153
attend
interfered
ERG’s Texas-based
meetings
Therefore,
constituted
pur-
Parex Canada’s
tract.
availment). Although bidding for Na-
negotiation
bidding activities
poseful
oc-
bors’s Colombian assets could have
con-
in Texas constitute minimum contacts
*30
actually
in
anywhere, it
curred
occurred
ferring specific jurisdiction on Parex Cana-
jurisdic-
subjecting parties to the
arising from
da for claims
those activities.
arising
tion of Texas courts for claims
Substantially
Con-
Texas Contacts
bidding
Similarly,
from
activities.
the
Operative Facts
nected to
defendant who assaults a non-
nonresident
plaintiff
subject
in Texas is
resident
jurisdiction
Exercising personal
over a
arising
jurisdiction
Texas
for claims
requires more than
nonresident defendant
assault,
though
plaintiffs
the
the
even
fo
minimum
the
sufficient
contacts with
presence in
assault oc-
Texas when the
Rather, “[sjpecific jurisdiction
rum.
exists
merely
is
id. at
curred
“fortuitous.” Cfi
only
alleged liability
if
out of or
the
arises
(a
driving through
154
nonresident
Texas
activity
is related to the defendant’s
within
in
in
gets
who
a vehicular accident
Texas
Oil, 414
at
the
S.W.3d
forum.” Moncrief
subject
jurisdiction
is
for claims
Texas
156;
Star,
Spir
see
310
at 873
S.W.3d
accident).
stemming from that
jurisdiction
(specific
exists when a “cause
Court’s focus on the location of the
The
from or
of action arises
relates
the
negotiated
similarly
assets is
unwarrant-
[purposeful]
defendant’s
contacts” with
in
ed—whether
the assets were located
state).
relationship
forum
between
Colombia,
Midland, rather
than
does not
alleged liability and
the defendant’s
jurisdictional analysis in this
alter the
case.
too at
contacts with the forum cannot be
inquiry
may
a forum
“The
whether
State
tenuated;
“there must be a substantial
specific jurisdiction
assert
nonresi-
those
connection between
contacts and
relationship
dent
‘focuses on the
defendant
operative
litigation.”
facts of the
Moki
defendant,
forum,
among the
and the
Expeditions
Drugg,
River
Mac
Walden, 134
litigation.’”
S.Ct.
(Tex.2007).
584-85
Inc.,
(quoting
Magazine,
Keeton v. Hustler
with Tex-
770, 775,
When
defendant’s contacts
465 U.S.
merely peripheral
as are
to a
(1984)).27
cause
litiga-
L.Ed.2d 790
Because the
action, specific jurisdiction
lacking;
is
tion
a tortious-interference
here involves
claim,
deprived
nonresident
cannot
jurisdictional analy-
the focus
process through
pleading.
of due
artful
relationship among
is the
Parex Cana-
sis
Mac,
da, Texas,
in which
Parex Canada’s communica- Such was the ease Mold
subject
judgment.”
was "striv-
State's courts to
him to
26. The Court claims Parex Canada
Mach.,
Nicastro,
McIntyre
ing
portfolio,”
expand its Colombian
not
See J.
Ltd. v.
873, 883,
gov-
"attempting
U.S.
131 S.Ct.
180 L.Ed.2d
to meddle with a contract
73;
(2011) (plurality op.).
law.” Ante at
see also id.
erned
(concluding
"any desire
Parex Canada lacked
Texas”).
asking
operations
Nor
to launch or maintain
is ERG
the Court to exercise in
Denckla,
subjective
negate
jurisdiction.
intent “does not
de-
rem
See Hanson v.
[a
But
Oil,
U.S.
78 S.Ct.
used
create
Here, Parex
Canada’s
bid
enterprise
that
interfered with Moncriefs
ding
in
gave
activities Texas
rise to ERG’s
relationship
business
with another compa-
“alleged
cause of action—Parex Canada’s
ny.
In declining
See id. at 157.
to exer-
liability arises out of
[and]
related
personal jurisdiction
cise
over
defen-
activity
[Parex
within
dants,
Canada’s]
[Texas].”
we found the connection between
Oil, 414
156. To
See
at
alleged
tort and
contacts with
Tex-
Moncrief
claim,
establish its tortious-interference
as too
specific ju-
insubstantial
to sustain
“(1)
prove
existing
ERG will have to
risdiction, because the tortious-interfer-
(2)
interference,
subject
contract
a will
claim
ence
centered on communications
ful and intentional act of
at a
interference with
meeting
occurred
California
contract, (3)
competing
proximately
the creation of
enterprise by
caused
(4)
company,
purported
injury,
damages
another
“not the
actual
[its]
mis-
caused
appropriation of
alleged
loss.” Prudential
Ins. Co. Am. v.
trade secrets.”
words,
Servs., Inc.,
In
periph-
Id.
other
the contact
Fin. Review
29 S.W.3d
(Tex.2000).29
eral to the substantial
Consequently,
basis
the claim.
Parex Cana
Although
Identifying
the information received at the
the elements of a tortious-inter-
meetings might
ultimately
assessing
relationship
Texas
not have
ference claim and
secrets,
recognized
alleged
constituted trade
we
between those elements and the
activi-
issue,
ty
inappro-
inqui-
was a merits
which would be
in Texas does not constitute a merits
priate
jurisdiction stage.
ry,
represents
to consider at the
see
at
but rather
ante
Oil,
proper analysis
assessing
See
93 (7th Cir.2012) mg injuries ac- inflicted out-of-state (concluding 670 Wisconsin 473, Burger King, at tors.” 471 105 had U.S. consider 2174; Keeton, also plaintiffs S.Ct. see at intentional tort claim that U.S. arose (“And 776, beyond multiple S.Ct. 1473 communications the defen Wisconsin); dant directed to dispute significant in- Schneider [a state] has Hardesty, 693, (6th in redressing injuries actually terest F.3d 702-03 Cir. 2012) (letters State.”). mailed to occur within the Ohio constituted availment); purposeful Dudnikov v. Chalk specific ju- The trial court’s exercise Arts, Inc., & Vermilion Fine 514 F.3d risdiction does not of- Canada (10th Cir.2008) (send 1075-76 play traditional notions of fend fair ing a notice of infringement claimed justice. Although subjecting substantial eBay in suspend plaintiffs’ California to imposes Parex Canada suit some bur- auction Colorado sending an email den, ordinarily alone cannot “[distance de- plaintiffs threatening litiga Colorado Oil, jurisdiction.” feat Moncrief subjected personal ju tion defendants to at 155. frequents Parex Canada Colorado); risdiction Trading Oriental management Texas and even hosted (8th Co. v. 236 F.3d Cir. Firetti meeting Moreover, in Houston in '2012. 2001) (sending communications, fraudulent strong has a in adjudicating Texas interest calls, faxes, phone the form of and in underlying allega- suit as it involves ju voices into Nebraska conferred of an tions intentional tort that occurred risdiction); Janssen, Neal v. 270 F.3d- injured Texas and resident. See (6th Cir.2001) (making phone 332-33 calls id.; Burger King, see also 471 U.S. at sending to Tennessee and faxes Tennes 2174; Keeton, U.S. availment); see constituted Vi- Finally, exercising juris- S.Ct. 1473. shay Intertechnology, Inc. v. Delta Int’l diction over Parex Canada furthers (4th Corp., 696 F.2d 1068-69 Cir. *33 “judicial system’s in obtaining interest 1982) (finding jurisdiction when controversies,” most efficient of resolution ini “wrote three letters defendant as allows all related claims to ERG’s telephone plain calls to tiated five [the Oil, together. tried See 414 Moncrief tiff],” in which were “essential facts [the at 155. S.W.3d claims”); Murphy tort Er- plaintiffs] v. Consistency Jurisdic- Other Inc., (1st imif-Wasey, 460 F.2d 664 tions Cir.1972) (“Where knowingly a defendant Exercising specific jurisdiction Pa- over statement, into a a in sends state false aligns rex precedent Canada also tending that it upon should there be relied from Software, federal courts. See BMC state, injury of resident of that he a at (relying “precedent 83 795 on has, jurisdictional purposes, for acted with from the United Supreme Court States state.”). in that But see Rockwood Select courts, other as federal well our as XI(6)-1, Devine, Asset Fund LLC v. Milli- decisions, determining own State’s in Branch, (10th met & 750 F.3d 1180 a nonresident has met Cir.2014) whether defendant (concluding making phone that a negate jurisdic its burden all bases sending opinion call to Utah and an letter tion”). specif Federal circuits have found to Utah not establish minimum con did tacts). ic when communications are particular significance plain Of dispatched to a forum state a tort in tiffs file suit courts Tex who federal as, claim arises those communications. the Fifth Circuit has concluded See, e.g., Clifton, Felland v. 682 F.3d the actual content of communica “[w]hen
94 (2006) (concluding gives tions with a forum rise to intentional N.E.2d action, tort causes this alone constitutes over out-of-state courts Alaska, Air purposeful availment.” Wien negotiated institutional trader that a multi Brandt, (5th v. Inc. F.3d employee million-dollar transaction with an Cir.1999); see also Matassarrin Grosve- of a trading company securities New nor, 14-50148, U.S.App. No. LEXIS messaging system).31 York an instant 7, 2014) (un (5th at Cir. Nov. *18 Accordingly, recognized the Second Circuit (concluding sending alleg published) purposefully that a defendant availed her edly communications via email fraudulent privilege conducting activities self regarding purchase fax or to Texas intentionally within a ac state when she a New Mexico condominium established cessed, retrieved, confi and disseminated contacts). single minimum Even act “[a] files stored in that dential state —even enough a can be defendant confer though those files were stored on a server personal jurisdiction gives if that act rise located the state rather than in file being the claim asserted.” Lewis MacDermid, cabinet. See F.3d at Fresne, (5th 252 F.3d 358-59 Cir. Collectively, recognize these cases 2001). contemporary realities of communications Furthermore, courts have re federal and business transactions: juris peatedly emphasized personal engage can communications a forum hinge diction does not on whether the de and conduct activities a forum without physically fendant has the forum. entered A physically entering ever the forum. Neal, (“Physical pres at See 270 F.3d proper jurisdictional inquiry will not disre- ju of personal ence not the touchstone gard contacts defendant’s risdiction.”); Co., Trading Oriental simply with a forum because the defendant (“The of physical presence F.3d lack utilizes or electronic other means to estab- jurisdic in a state cannot alone defeat lish no contacts. The Court affords tion”). Nor does de weight to presence Canada’s in Tex- pend physi whether defendant sent through technological instrumentalities item, mail, sending cal such as rather than and instead focuses on the fact that nei- communications into electronic the forum ther Parex nor subject Canada matter accessing remotely. otherwise the forum being negotiated the transaction MacDermid, Deiter, See Inc. v. 702 F.3d *34 Texas; Cir.2012) physically present 725, (2d the Court’s (determining 726-27 analytical approach disposition and is dis- Connecticut court had weight authority cordant with who, of “over while domiciled Canada, jurisdictions incompatible other working alleged is have Supreme computer established United States Court accessed a server located Con precedent. in I misappropriate necticut confidential would hold Parex Canada’s Texas, belonging employer”); formation intentional her contacts with albeit ac- Sec., means, complished technological Deutsche Bank Inc. v. Montana Bd. via consti- Invs., 65, 164, 850 7 N.Y.3d 818 N.Y.S.2d tute sufficient minimum contacts are of Horowitz, 1252, 13, Franklyn, Wendt v. So.2d Inc. v. N.Y.2d N.Y.S.2d Cf. (Fla.2002) 337, 506, (1970) (conclud- (recognizing a tort can occur 256 N.E.2d 508-09 long-arm ing within Florida under the state’s stat- New York courts had over a "through actively ute the nonresident defendant’s tele- nonresident defendant who bid on electronic, phonic, using or written communica- items New York at a auction a tele- Galleries, line). Florida”); phone tions into Parke-Bemet substantially operative connected to the 1. Ratification of Jurisdictional Con- of facts claim tacts ERG’s tortious-interference to enable Texas courts to exercise principal A “subject can himself to the Canada in
jurisdiction over Parex accor- foreign of a forum” by ratify process. dance with due ing agent. the acts of an Ins. Walker Servs. v. Bottle Rock Corp., Power Specific Lacking B. Is Jurisdiction 552 (Tex.App.-Houston [14th Over Parex Bermuda Dist,] 2003, pet.). no “Whether or not an agent initially authorized to act on be I do not reach the same conclusion re- principal, half of a agent’s may actions garding Bermuda, however. ERG principal, be attributed for purposes claims Texas specific jurisdic- courts have personal jurisdiction, principal if the tion over Parex Bermuda because Parex later agent’s ratifies the conduct.” Id. expressly Bermuda ratified Parex Cana- “The critical factor in determining whether jurisdictional da’s contacts at a Parex principal has ratified an unauthorized act meeting approving Bermuda board his by agent is principal’s knowledge acquisition. deposi- Ramshorn Based on the transaction and his actions in light tion testimony, the minutes board reflect: knowledge.” such Land Title Co. Dal consideration, having regards After due las, Inc., Stigler, Inc. v. F.M. 609 S.W.2d Resources, the interests (Tex.1980). Along full “with Inc., parent compa- the ultimate knowledge of act,” the facts of the earlier ny, it acquisition was resolved ratification requires “approval act, by was in the best of the company interests word, or conduct ... with the intention of by the actions taken Mr. Pin- giving validity to the earlier act.”' v.White sky and Mr. Foo in connection the Harrison, 390 S.W.3d 672 (Tex.App. negotiation of acquisi- terms pet.). -Dallas no tion and Mr. Betts in executing the Contrary argu- Parex Bermuda’s purchase agreement and the related ments, however, agency relationship “is transaction documents behalf of the not necessary to cause the ratification to company approved, be ratified and con- Enters., be Disney effective.” Inc. v. Es- respects. firmed in all Fin., Inc., (Tex. prit 981 S.W.2d Additionally, ERG claims Bermuda App.-San pet. w.o.j.). Antonio dism’d implicitly jurisdic- ratified Parex Canada’s Pre-incorporation may activities also by accepting tional contacts under benefits later-incorporated entity ratified i.e., purchasing the Ramshorn SPA — assessing jurisdictional considered shares from Nabors. are These contacts Techs., Inc., contacts. See Rees v. Mosaic if immaterial Parex Canada did estab- (3d Cir.1984) (“[T]he 742 F.2d 768-69 lish minimum contacts with and as pre-incorporation promoter activities of a result, the Court did not consider the may *35 corporate liability form for the.basis ratification issue. they when post-in- have been ratified I ju- Because corporation conclude Parex Canada’s of corporation.”). acts the were, fact, risdictional contacts suffi- non-agént’s subsequently When a act is cient, ratified, I arguments however, consider the ratification agency an relationship ultimately agree created; but with the Court that is consequently, not not the all jurisdiction personal non-agent’s imputed Parex Bermuda actions are to the lacking. is principal. Esprit, at See 981 S.W.2d
96 Parex Instead, only ra- demonstrate that only ratification bind the dence would “will specific is specific purchase to the transaction that ratified tifier Bermuda had the added); see also (emphasis transaction, ratified.” Id. not Bermuda had Parex (“[A]l- Rock, n.9 Bottle 108 552 earlier, S.W.3d at allegedly Parex Canada’s ratified stranger of of though the act ratification Esprit, in Texas. tortious activities See agency relationship, not create an will 31; Rock, at Bottle S.W.3d S.W.2d specific the trans- does bind ratifier to the at 552 n.9. ratified.”). The ratifier is action that no Ber- ERG cites evidence Parex transaction,” howev- “entire bound the ratified Parex Canada’s earli- muda either er, not, “may ratify in equity, those disclosing the for plan er communications parts of which benefi- the transaction are buy Colombia to the Ramshorn Parex cial detri- which are disavow those or the LOIs Parex Canada sent shares S,W.2d Co., 609 at mental.” Land Title form the Nabors March which con- By accepting of a the benefits of basis the tortious-interference claim. tract, liable for the ratifier also becomes Sys., See v. Retriever Elec. Bankcard Inc. obligations. the contractual Inc., Indus., 01-01-00240-CV, 2003 No. Ratify Did 2. Parex Bermuda Not (TexApp.-Houston [1st WL at *7 Contacts Canada’s Jurisdictional (mem.op.) no pet.) Jan. Dist.] evidence, supported To the extent the (“The conduct, any, wrongful if occurred imply findings necessary support we all representatives appellants’ when sales the trial court’s conclusion that their rela- persuaded discontinue is lack- over Parex Bermuda Consequently, appellants.”). tions with ev- ing, Software, See BMC 83 S.W.3d implied the trial court’s supports idence arguing Parex Bermuda ratified Parex finding ratify that Parex Bermuda did allegedly communica- Canada’s tortious alleged of Parex the tortious actions Cana- Texas, points tions to Parex Ber- da, result, and as a Parex Bermuda is not (1) of purchase muda’s the Ramshorn to the of Texas amenable of acceptance as benefits the shares under courts. (2) approval April express of SPA April certain actions at meet- III. Conclusion meeting, At ing. Bermuda’s By adopting perfunctory analysis approved purchase of board Ramshorn ignores complex realities of business $72,635,742, shares the actions negotiations century economy, 21st chief officer and chief Canada’s financial jurisdiction- unduly the Court restricts negotiating took in executive officer al reach Texas courts and renders acquisition,” “terms the actions jurisdictional an anachronistic outlier. executing of Parex director “in Bermuda’s Moreover, disregards prece- the Court our agreement related purchase and the by focusing presumed on the subjec- dent ap- if transaction Even documents.” mere proval of tive intent Canada’s conduct a transaction sufficient to behind Parex ratification,32 focusing rather than on Parex constitute ERG’s cited evi- Dallas, “(1) approval by See Title Co. Inc. F.M. elements Land ratification Inc., (Tex.1980) act, word, conduct; (2) Stigler, full knowl- (describing principal's knowledge act; as “the (3) edge of earlier the facts ratification); assessing critical factor" giving validity with the intention S,W.3d Harrison, (Tex. White act”). earlier *36 (characterizing pet.) App.-Dallas no conduct Texas— Canada’s intentional n gives intentional conduct rise to The jurisprudence
ERG’s cause action. clear: when out-of-state
engages conduct intentional forum
state, specific jurisdiction eásts arising of action from the
causes forum A
conduct. tortfeasor cannot evade by committing Texas courts through technological
a tort in Texas I Accordingly,
means. would reverse of appeals’ judgment part
court
hold Texas courts have agree I
over Parex Canada.
Court, however, that Parex Bermuda’s
special appearance properly granted was appearance special
and Ramshorn’s
properly denied. OPINION
MEMORANDUM Texas, Appellant, STATE (1)2004 NAVIGATOR,
ONE LINCOLN FU27RX4LJ28242, # 5LM
VIN
Appellee.
No. 13-13-00484-CV. Appeals
Court of
Corpus Christi-Edinburg.
Aug.