Moki Mac River Expeditions v. Drugg

again ordered to move boxes. Id. Thus, of the experience employee

Keng experience differed from Skiles’s First, important respects. unloading

two regular part

food was a product Skiles’s

job trained on how handle and he was lift gate when the would not

situations Second,

operate. acknowledges Skiles he

voluntarily made the decision to find trailer,

ladder, into the jump and unload hamburger meat. dangers associated with the use of a gate

ladder climb over a lift are common anyone. Following obvious our Elwood,

holding in which we after issued case, opinion appeals’ court of in this duty

we conclude Jack in the Box no owed danger posed by

to warn of the his Skiles the ladder.

intended use of reverse We judgment appeals’ court of and render take-nothing judgment favor of Jack

in the Box. EXPEDITIONS,

MOKI MAC RIVER

Petitioner, Betsy Drugg,

Charles DRUGG and Indi-

vidually, Representatives and as Drugg, Patrick

Estate of Andrew Re-

spondents.

No. 04-0432.

Supreme Court of Texas.

Argued Nov.

Decided March N. Beard Bishop,

E. Thomas Alexander Finch, Hum- Bishop Ann & Stephanie and Dallas, mert, P.C., for Petitioner. Aldous, Braden and E. Michael Steven Braden, Jr., Vamer & Ray Robert Varner Aldous, P.C., Dallas, Respondent. for Alexander, Alexander Dubose Douglas Austin, Townsend, LLP, for Ami- & Jones cus Curiae. opinion delivered

Justice O’NEILL Court, in Chief Justice which HECHT, JEFFERSON, Justice Justice BRISTER, WAINWRIGHT, Justice GREEN, WILLETT and Justice Justice joined. juris- specific

A Texas court assert if defendant over an out-of-state diction Andy on to send ultimately decided this state is contact with sent grandmother Andy’s rafting trip. from or injury arises purposeful payment application Mac an wrong- In this Moki contacts. relates those practice, Andy. As was river- herself against case Utah-based ful-death confirming pay- outfitter, sent letter contends Moki Mac the defendant rafting along home in Texas Canyon Druggs’ on a Grand ment to the plaintiffs death and re- acknowledgment-of-risk arise from or relate hiking trail did not requires form, so as to commercial activities which its instate lease sign prerequisite over as a participants establish we re- his mother Accordingly, Andy and agree. Texas. Both We attendance. the court of remand the case to returned it to verse and form and signed ju- general whether appeals to determine Mac.

risdiction exists. the second allege that on Druggs The fourteen-day trip, day Andy’s Background I. incline on a up an group led the guides thirteen- Betsy Drugg’s Charles ob- around and was narrowed trad that son, Andy, died on a June year-old guides large a boulder. structed in Arizona with Moki river-rafting trip the and rear of at the head positioned were riv- Expeditions, a Utah-based Mac River the guide present was near group, but no not di- Moki Mac did er-rafting outfitter. Andy attempted negotiate As boulder. Druggs participate rectly solicit the him to path, requiring the boulder-blocked Instead, Druggs learned trip. the very to cross a attempting lean back while a fellow Mac’s excursions from about Moki approxi- backwards ledge, he fell narrow resident, Seals, Annie who had con- Texas fatally in- feet and was mately fifty-five rafting regarding a tacted the jured. was no Canyon. in the Grand There trip time, for her at that but space available for in Texas Druggs filed suit The placed was on contact information Seals’s negli- due to Moki Mac’s wrongful death mailing list so computerized Moki Mac’s negligent intentional and gence and for automatically receive bro- that she would trial court denied misrepresentation.1 season when it became chure for the 2001 special appearance Moki Mac’s subsequently sent available. affirmed on the basis appeals court of detailing in Texas two brochures Seals holding jurisdiction, specific upcoming excur- pricing and schedules arose claim misrepresentation Druggs’ informed Moki Mac of Seals sions. to, from, purpose- Moki Mac’s and related in Texas with interest of several others with Texas. WL ful contacts literature, including she shared whom appeals found the court of Because family. Andy and members of his not consider whether it did jurisdiction, proper. We jurisdiction general the brochures Betsy Drugg reviewed for review petition Mac’s granted Moki Mac’s website. from Moki and information claim must the extent to which repre- consider with Moki Mac corresponding After contacts to” forum Texas, Betsy “arise from or relate from her home sentatives appeals and do the court of claim in breach- contract Druggs claimed Moki Mac 1. The also Court, only we safety meas- to this agreement provide the in their briefs not do so ed its wrongful-death Because represented Druggs' in its materials. claim. ures address the argue their breach-of- Druggs did not Coleman, (Tex.2002). specific jurisdiction order to confer over a v. nonresident The nonresident defendant then defendant.2 assumes negating juris- the burden of all bases

II. Jurisdiction allegations. diction in those BMC Soft- Marchand, Belgium, v. ware N.V. matter, Druggs As a threshold (Tex.2002). Because the jurisdiction contend do not we over question of a court’s exercise of interlocutory Moki Mac’s appeal this jurisdiction over a nonresident defendant Generally, appeals’ case. court of deci law, is one of we review trial court’s interlocutory appeal sion in an is final. a special appearance determination of de 22.225(b)(3). When, § Tex. Gov’t Code When, here, novo. at 794. as trial however, appeals the court of holds differ findings court does not make of fact and ently prior from a decision another support ruling, law in of its conclusions of Court, court appeals, this or the United necessary we infer “all facts Court, jurisdic States we have judgment supported by the evi- disagreement tion to resolve the or con ....” (2) dence 22.001(a)(1), §§ flict. Tex. Gov’t Code 22.225(c); Schein, Henry Inc. v. per- courts assert in (Tex.2002). Stromboe, 102 S.W.3d 675 if jurisdiction sonam over a nonresident appeals’ Moki Mac contends the court of (1) long-arm the Texas statute authorizes conflicts, alia, decision in this case inter (2) jurisdiction, exercise of McFall, Laykin v. 830 S.W.2d 266 exercise of is consistent with (Tex.App.-Amarillo orig. proceeding). due-pro federal and state constitutional There, appeals the court of that a held guarantees. Schapiro, cess Schlobohm Texas court could not assert (Tex.1990). 355, long- Our 784 S.W.2d 356 by over an out-of-state defendant in a suit what, addition “[i]n arm statute describes alleging a Texas resident fraud and con acts,” doing to other constitute busi point” version because the “focal in Prac. & Rem. ness this state. Tex. Civ. allegedly activity plain tortious and the § 17.042. Pertinent to this case are Code damages tiffs not lie in at did Texas. Id. subsections, provide the first two which case, contrast, 270. this the court of that a does business nonresident appeals court held the Texas could if it: jurisdiction regard assert without to the (1) with a contracts mail or otherwise likely parties’ focus of the efforts in the party either is Texas resident and 100389, underlying lawsuit. 2004 WL at in part in whole or perform the contract jurisdiction *4. have to resolve the We state; in this [or] interlocutory appeal. conflict this Tex. (2) part or in commits a tort whole 22.001(a)(2). § Gov’t Code state; this

III. In Personam Jurisdiction (2). 17.042(1), § Druggs’ negli- The misrepresentation plaintiff gent bears the initial and intentional brochures and pleading allegations burden of sufficient claims based on Moki Mac’s re- jurisdiction satisfy doing-business long- invoke under the Texas release form jurisdiction plain under the Type quirement arm statute. Am. Culture Collection supporting and America Outdoors. 2. We received an amicus brief fitters Association position Canyon Moki Mac’s from Grand Out-

575 Holten, Country, Inc. v. 168 S.W.3d Livin’ But the exercise language of statute. (Tex.2005). 777, 784 must be jurisdiction under the statute with federal and state constitu- consistent recently explained We process. of due guarantees tional “purposeful to a parts are three that there Schlobohm, at 784 S.W.2d 356. Michiana, inquiry. 168 S.W.3d availment” First, only the con at 784-85. long-arm have said We relevant, not the are tacts with the forum al doing-business language statute’s broad party another or a activity of unilateral far as the lows the statute to “reach as Second, at person. third of due requirements federal constitutional upon purposeful must be contacts relied Royal allow.” process will Guardian random, fortuitous, or attenu rather than Assurance, English Ltd. v. China Exch. Id.; King Corp. v. Burger ated. see also (Tex. P.L.C., 223, Clays, 815 S.W.2d 226 Rudzewicz, 462, 476 n. 105 471 U.S. Schlobohm, 1991); 784 S.W.2d at see also (1985); World 85 L.Ed.2d 528 S.Ct. Adver., Burt, 357; Inc. v. U-Anchor Woodson, 444 Corp. Volkswagen v. Wide (Tex.1977). Thus, the re S.W.2d 286, 297, 62 L.Ed.2d 100 S.Ct. long-arm of the Texas statute quirements (1980). Thus, out who ‘reach “[s]ellers jurisdiction if an assertion of are satisfied continuing and create beyond one state due-process with federal limita accords citizens obligations with relationships Collection, Type Am. Culture tions. juris subject are of another state’ Link, 806; S.W.3d CSR Ltd. on their of the latter suits based diction Schlobohm, (Tex.1996); Michiana, S.W.3d at 785 activities.” 784 S.W.2d Burger King, 471 U.S. (quoting 2174). Finally, the “defendant must due-process require Federal benefit, advantage profit by some seek power per ments limit a state’s to assert jurisdiction.” Michi ‘availing’itself of the sonal over a nonresident defen ana, contrast, at 785. Royal, dant. See 815 S.W.2d at Guardian partic avoid a may purposefully defendant proper 226. Personal when by structuring its transactions ular forum the nonresident defendant has established from the way profit as to neither such state, minimum contacts the forum jurisdic subject nor itself to forum’s laws jurisdiction comports and the exercise of 472, at Burger King, 471 U.S. tion there. “ play fair ‘traditional notions of 2174. 105 S.Ct. ” justice.’ Co. v. substantial Int’l Shoe 310, 316, fo A nonresident defendant’s Washington, 326 U.S. 66 S.Ct. (1945) rise to two 154, give contacts (quoting 90 L.Ed. 95 Milliken rum-state 457, 463, 339, jurisdiction. BMC types personal Meyer, 311 U.S. 61 S.Ct. Soft (1940)). ware, at If the defen 83 S.W.3d 795-96. L.Ed. 278 Minimum contacts systematic has made continuous dant are sufficient “ jurisdic general ‘pur contacts with the nonresident defendant when the the de or not tion is established whether privilege avails itself of the posefully those alleged liability arises from forum fendant’s conducting activities within the Ltd., 796; at CSR State, pro contacts. Id. invoking the benefits and thus ” contrast, Denckla, specific at In when 595. of its laws.’ Hanson v. S.W.2d tections mini 253, 1228, alleged, we focus 235, 2 L.Ed.2d 78 S.Ct. 357 U.S. (1958) Co., “relationship analysis on the 326 mum-contacts (quoting Int’l Shoe forum[,] defendant, 154); among the Easy Michiana at 66 S.Ct. U.S. Royal, deciding at 806. Before wheth- litigation.” Guardian 815 S.W.2d 83 S.W.3d liability arose from or (citing Helicopteros at 228 Nacionales de er Moki Mac’s relat- contacts, Hall, ed to its forum we must first Colombia v. 466 U.S. (1984); examine the nature of those contacts and L.Ed.2d 404 Schlo 357). bohm, Mac it- juris purposefully whether Moki availed Specific 784 S.W.2d at privilege conducting self of the business diction is established if the defendant’s Michiana, 168 at alleged liability of or here. See S.W.3d 784- [is] out re “aris[es] activity lated to” an conducted 85. within Helicopteros,

forum. at 414 n. Purposeful A. Availment 1868; Ltd., 104 S.Ct. see also CSR 595. The United States Su A defendant that di nonresident preme provided relatively has little marketing rects efforts to Texas guidance on the “arise from or relate to” subject suit hope soliciting sales is requirement, nor have we had occasion to liability arising from or alleged here for strength examine the of the nexus re Id., relating to that business. quired jurisdiction. establish Michiana, we concluded that a stemming single from a

single product sale Analysis IV. Jurisdictional Texas to a non phone call initiated from purposeful defendant was not a resident Druggs The assert that Moki Mac estab- satisfy due-process contact sufficient to lished sufficient minimum contacts with the seller minimum-contacts test because by making misrepresenta- material purposefully marketing did not direct ef here, relied, upon they tions to them which 785- forts here to solicit sales. Id. regarding the nature of the services that case, Holten, resident, a Texas on provided trips. would be Michiana, the nonresident defen- called son, wrongful Druggs death of their dant, purchase an RV manufactured argue, arose from or related to the fact Texas, Michiana delivered outside of which not meet the Moki Mac’s sendees did entirely expense. at Holten’s to Texas represented standards it in Texas. Moki in Tex- at 784. Michiana did not advertise principal argument Mac’s is that there is efforts to as and undertook no affirmative any alleged an insufficient nexus between held that the solicit business here. We misrepresentations that it made in Texas by making alleged commission of a tort Andy’s in Arizona wrongful death call ini- misrepresentations during phone jurisdictional satisfy process. due Accord- insufficient, itself, by tiated Holten was Mac, Andy’s might to Moki death jurisdiction. Id. at 791-92. to establish to alleged negli- arisen out of related test, reasoned, would improper- Such a we Arizona, gence that occurred but had analysis ly purposeful-availment focus meaningful connection to Moki Mac’s no by the action chosen on the form of alleged misrepresentations in Texas. plaintiff rather than on the defendant’s properly to For a Texas forum exercise at avail itself of the forum. Id. efforts to (1) case, jurisdiction in specific this alone, that, standing 791. We also held Mac must have made minimum contacts to ac- delivery single of the RV to Texas by purposefully availing with Texas itself similarly defi- Holten was a commodate privilege conducting at 786-88. jurisdiction. cient basis for Id. (2) here, liability and Moki Mac’s must States related to those con- The United have arisen from or Collection, Inc., that a nonresident recognized Am. Court has Type tacts. Culture 595; Co. v. at see Metal Ind. places products who into the “stream Asahi Court, 102, 112, 107 they expectation Superior with the that 480 U.S. commerce” (1987). This subject to will be sold the forum state is S.Ct. L.Ed.2d due-process require- jurisdiction. rule accords with the the forum’s World-Wide 297-98, that a defendant must Volkswagen, 444 U.S. at 100 S.Ct. ment nonresident that directed purposefully stated action Although 559. Court has also take Asahi, 480 forum state. See single jurisdic- a contact can toward the support at 107 S.Ct. 1026. determin- tion if that contact creates a “substantial U.S. di- forum, jurisdiction purposefully with the whether the defendant connection” Texas, may look contact action toward we cannot be established where the rected “ only beyond particular affiliation business creates ‘attenuated’ to conduct King, forum.” 471 U.S. at issue: conduct Burger transaction “Additional (quoting may indicate an intent or at 475 n. of the defendant S.Ct. Volkswagen, at market in the forum purpose 444 U.S. to serve the Worldr-Wide 559). Id; Michiana, Indeed, in World-Wide see also S.Ct. State.” (stating appear Volkswagen, the Court held that New at 786 Texas “cases ”). dealership that standard’ York did not advertise follow the ‘additional conduct not sub- of additional conduct that Examples solicit business Oklahoma was ject purposefully to suit there it sold indicate whether defendant simply because particular car to New York in New York itself of a forum include residents availed “happened advertising establishing and channels of who suffer an accident while passing through” to customers regular Oklahoma. World-Wide communication Asahi, 295,100 444 U.S. Volkswagen, forum state. 480 U.S. reasoned occur- that this one S.Ct. 1026. fortuity rence was mere too attenuat- Michiana, the evidence Unlike jurisdiction, support given ed to the deal- cases indicates that Moki Mac does this ership’s complete lack of affiliation with to serve the market. Moki intend Texas Similarly, Oklahoma. Michiana’s sin- knowingly rafting trips Mac sells to Texas gle contact with Texas was too attenuated market purposefully directs residents in Texas. Michiana the intent ing efforts Texas with control over customer point had no In addi business from this state. solicit and, like generated contact that the sale sending tion to brochures release Volkswagen, the defendant World-Wide shows that Druggs, to the evidence say over end had no where the RV would regularly in Texas. Moki Mac advertised Michiana, Rather, up. S.W.3d at 787. variety in a placed It has advertisements from the Michiana’s sale Texas resulted nationally publications that circulated fortuity happened to re- mere Holten Texas subscribers. Moki Mac also have here, activity unilateral side Holten’s target media public hired relations firms to subject ju- Michiana to could operators, some of whom groups and tour risdiction here. were located Texas. Thus, trips prod taking promoted mere sale of within in the Austin Chron generally uct to a Texas resident will not out an advertisement that a nonresident specific jurisdiction upon suffice to confer icle. We said Instead, “in alleged in local media advertising our courts. the facts itself, act sufficiently purposeful is a must indicate the seller intended and of Ltd., in v. Villa is done Texas.” Siskind serve the Texas market. CSR Found, Educ., Inc., schedules, prices 642 S.W.2d to those on mail- its (Tex.1982). ing list who had been a customer or who simply expressed trip had interest in a Moki Mac’s efforts to solicit in business three-year a period. within Texas, however, go further. It solicited through target- Texas residents mass and We stated in Michiana that the contacts “[sjellers direct-marketing campaigns. beyond ed email who ‘reach out one compiled mailing continuing a list col- state and create relationships lecting contact from obligations information interested with citizens of another ” parties email, by phone, through either or state’ are rather than fortui- purposeful Michiana, addition, company’s (quot- website. Moki tous. Inc., Mac a potential Magazine, obtained list of customers Keeton v. Hustler 770, 774, from a commercial source. Both its own U.S. 104 S.Ct. L.Ed.2d (1984)). mailing mailing list and the commercial list Moki Mac’s contacts with result, included Texas residents. The as did the defendant’s Texas did not Michiana, automatically fortuity would in mere send brochures and from the trip people previ- Druggs happened information to who had to reside here. Rather, ously expressed in in trip, interest a even the contacts it had with Texas years person expressed through when that had not resulted from additional conduct interest. in part promotions, get As of those which it aimed to extensive business Moki Mac offered “a free float” as an or from this state. incentive to customers who a coordinated requires availment that “a Purposeful group provided of ten or more. Moki Mac benefit, defendant must seek some advan- compensation this to at least two Texas tage, by ‘availing’ itself of the profit occasionally provided residents. Moki Mac jurisdiction.” The notion nec- Id. at 785. accompany trips musicians to float free essarily nonresident sub- implies that the charge. particular trip, On one Mac mit and that a nonres- to suit permitted string quartet a from Fort into court in a being ident avoid haled accompany group

Worth to a Texas on its conduct- particular by purposefully forum trip, charge float free of to the musicians. benefit or ing business so as not to derive paid agen- Moki Mac also to a travel fee held in profit from a forum’s laws. Id. We Houston, cy resulting multiple located pur- that the defendant did not Michiana trips involving Texas residents. benefits and posefully avail itself of the addition, it did not protections Moki Mac established chan- of Texas law because Texas, design, did not regular regularly nels of communication with its cus- sell RVs Texas, advertise, prac- It Mac’s or distribute RVs tomers Texas. was Moki customers, relationship with Holten single particular tice to utilize who because the leaders, was consummated. group would become de to would end once the sale facto Mac, 785-86, conversely, An- 794. Moki plan, organize, promote trips. profit from Texas res- By sought nie was one such contact. com- and obtained Seals idents, company main- municating all of its with whom the customers communications, and it derived through correspondence single with a tained leader, amount of its business from group Moki Mac streamlined its substantial Michiana, where we process. company kept Texas. Unlike reservations single resulting sale from open; these communication channels characterized from a Texas automatically single phone originating call practice was Moki Mac’s “dribble,” trips, number as a id. regarding send information new in Druggs chures forms to the tapped Mac and release “stream of commerce” Moki Texas, con- significant. engaged There is additional into was evidence it also that, that, years, be- preceding demonstrating over the five like the defen- duct Siskind, 105 and of Moki Mac’s custom- tween it busi- actively solicited dant (between 7-11%) were from Texas. ers ness Texas. emphasized profit orig- have that mere

We Moki Mac had suffi- conclude that We forum, inating from the if to a unrelated contact Texas to sat- cient with purposeful is not purposeful contact with jurisdictional of due isfy prong the first 787-88; availment. Id. at see also World- alone process. purposeful But availment Volkswagen, 444 U.S. Wide specific not an exercise of support will 559. But Moki Mac’s business with analysis jurisdiction. Specific-jurisdiction marketing residents from its Texas stems components. specif- two For co-equal has advertising purposefully di- ic-jurisdiction avail- purposes, purposeful customers, gaining rected at Texas jurisdictional ment unless has no relevance doing availed thus itself of business here. liability re- arises from or purposeful This Court found availment lates the forum contacts. concerning case an a similar out-of-state was an nexus contends there insufficient information that sent to a school Texas injuries Mac’s Andy’s between and Moki Siskind, upon individual request. his specific contacts Texas to establish Siskind, at 435. we held now jurisdiction, argument an to which we of personal an exercise turn. over a troubled proper school for children located Arizona. Id. at 435. Siskind Requirement B. Relatedness tuition for paid his son to attend Villa with require The “arise from relate to” understanding from the school’s bro- juris heart ment at the lies chures and modified Siskind’s enrollment defining the nexus required diction contract that he if his would be reimbursed defendant, between the nonresident during year. son left the school Villa litigation, the forum. To son, when expelled Siskind’s but Villa re- specific jurisdiction, tuition, refund fused to Siskind sued given relatively guidance has little as contract, the school Texas for breach action closely how related cause of misrepresentation, and violation of the activi must the defendant’s forum be to Deceptive Texas Practices Act. Id. Trade be assessing relationship ties. A number of significant 435-36. Villa’s tween a contacts and nonresident’s residents, were students on litigation, most courts have focused Paso, Houston, El school advertised causation, they differed over but have telephone and Lubbock directories as well See No proper causative threshold. as solicited in a number of nation- business Invs., Ltd., F.3d wak v. How Tak al circulated in Tex- publications were Cir.1996) (1st vari (discussing at 435. as. Id. We held Villa’s adver- courts tisements, approaches). ous causative Some conjunction “in with its practice caus pursued expansive have but-for mailing packets, applica- informational adopted re-enroll, ative others have admission, approach, invitations to tions requiring fo relatedness view restrictive and enrollment contracts Texas resi- rum relevant to a neces dents,” contacts to be indicated that the school had affir- sary proof, and some matively sought in Texas. element business at Here, only sliding-scale analysis that applied sent bro- Mac 580

tempts to strike a balance between the to a specific relate element of proof or Maloney, two. See Mark M. Specific proximate injury, Ju cause of the but-for analysis risdiction jurisdictional and the “Arise From or considers Re contacts Requirement late to” ... that occur Does it over the “entire What course of Mean?, events” of relationship between the 1265, 50 Wash. & Lee L.Rev. defendant, approach litigation. (1993). Each and the 1276, has 1299 Shute, detractors, 897 F.2d at proponents and for the rea sons we examine below. As the explicitly sole adopt test, the but-for the Ninth Circuit

1. “But-For” Relatedness Appeals has been its staunchest In Helicópteros Nacionales de Colombia advocate, progeny and Shute’s gener- Hall, v. Court evaluated a ally demonstrated the continuing circuit’s corporation’s Colombian limited contacts Nowak, support. 94 F.3d at 714 (noting with Texas and they decided were not the Ninth Circuit as “the most forceful sufficiently systematic continuous and test”); defender of the ‘but for’ see Bal- support general jurisdiction over the de- (9th Savage, 1495, lard v. 65 F.3d 1500 418-19, fendant in Texas. 466 U.S. at 104 Cir.1995); Bank, Valley Terracom v. Nat’l S.Ct. 1868. The Court did not spe- (9th reach 555, Cir.1995); 49 F.3d but see cific parties because the had Langsten Omeluk v. Slip Batbyggeri & plaintiffs’ conceded that the A/S, (9th Cir.1995) claims did not 52 F.3d (noting arise from or relate to the defendant’s authority of our “[t]he decision in 415-16, activities in Texas. Id. at questionable”). Applying Shute the but- Brennan, test, S.Ct. 1868. though, Justice dis- the Shute court held that pas- a sented, espousing ap- senger’s injuries a “but-for” broad suffered aboard relatedness, proach to and courts that have ship cruise arose out of the nonresident applied that generally test have relied on cruise line’s contacts with Washington be- 427-28, cause, his view. Id. at 104 S.Ct. 1868. but for the cruise line’s advertise- there, passenger ments would not have Courts that ap- the but-for purchased a ship. ticket and boarded the proach have said that a cause of action Shute, 897 F.2d at 386. The cruise line arises from or relates to a defendant’s advertised local media and sent bro- when, forum contacts but for those con- chures to the state. Id. at 379. The court tacts, the cause action would never have that, reasoned when a defendant demon- arisen. See Shute v. Carnival Cruise “continuing strates efforts to solicit busi- (9th Lines, Cir.1990), 897 F.2d state,” ness the forum whether a cause grounds, rev’d on other 499 U.S. of action arises from those efforts must be (1991); 113 L.Ed.2d 622 see viewed over the entire course of events. Sonatrach, Inc., Prejean also 652 F.2d Id. at 385-86. The court did not limit its (5th Cir.1981) (holding 1270 n. analysis passenger’s relatedness to the that a “contract a but for causative [was] contract, analyzed reservation but instead suit); factor” for the tort Lanier v. cf. range of the cruise line’s solicitation Endodontics, Am. Bd. 843 F.2d activities. Id. at 385-86. (6th Cir.1988) “arising (interpreting out of’ language Michigan’s long-arm The Fifth appeared apply statute Circuit re- concluding alleged similarly expansive discrimination latedness manner There, would not have occurred in Prejean, but for the defen- 652 F.2d at 1270. forum). dants’ spouses passengers plane contacts Rather who died considering only than brought wrongful-death isolated contacts crash action ... has requirement for’ others, ‘but Algerian “[a] reach: among against, literally limiting principle; no flight. itself that chartered oil can hindsight that every event the trial court’s dismissal embraces reversing chain.” causative identify jurisdiction logically and remand- want of Bril 715; Lea Nowak, Fifth see also F.3d inquiry, factual 94 for further ing Ju and Personal that, the defen- Contacts assuming mayer, Related stated Circuit 1444, 1462 risdiction, wrong- plane, chartered the 101 dant had Harv. L.Rev. (1988) that char- test for its (criticizing would arise from the but-for ful-death suit reach). Although charter contract would be court ter because the Shute limitless factor for the tort of required causative reasonableness but-for posited that wrongful death. check on the but-for act as a inquiry would have commentators expansiveness, test’s posited justifications have been Several reasonable efficacy of the questioned the Shute, 897 approach. but-for for the “highly deferen calling safeguard, ness Shute, explained the court F.2d at 385. See, supra at Maloney, e.g., tial.” specific- preserves but-for test that the there be jurisdiction requirement Ninth Circuit beyond the Few courts and the the cause of action nexus between to relat- approach the but-for adopted have Id. At activities in the forum. Fifth and Specifically, both edness. time, the ex- opined, the same the court a movement signaled Sixth Circuits fundamentally is more pansive approach agree away such a broad test.3 We from a defendant fair because it does not allow who and commentators with those courts activi- engage significant purposeful too broad and but-for test as view the yet in the forum still avoid ties satisfy due-process judicially unmoored of ac- relationship when the of the cause concerns. is tenuous.

tion to those activities 2. Substantive Relevance/Proximate 885-86. Cause hand, approach On the other the but-for than the but-for structured expanse Far more widely criticized for the has been related- view of is the restrictive seemingly jurisdictional approach unlimited of its CV, (S.D.Tex.1994) jurisdic (holding specific no Transportes SA DE 3. See Fetch v. Lar-Mex 320, (5th Cir.1996) (finding plaintiff’s no in a 92 F.3d 324 death tion in Texas because trucking specific jurisdiction over a Mexican result from plane Panama did "not crash over in Texas when truck that was sued her purchased the ticket for that she the fact plaintiff's vehicle on a Mexi hit the mother’s Texas”); Red River Kervin v. airline travel in highway); Kelly Syria Petroleum v. Shell can Inc., 1383, Area, F.Supp. 1389 711 Ski (5th V., Cir. 213 F.3d 855-56 Dev. B. (E.D.Tex.1989) not (holding plaintiffs could 2000) (concluding Syrian companies oil specific jurisdiction over nonresident assert not amenable to were negligence claim did their ski resort because wrongful-death claims of Texas because advertising contacts with of its not arise out closely Syria relat killed in were workers the resort’s as a result of Texas but arose recruiting companies’ ed to the failing to maintain safe alleged negligence in La., Texas); Inc.- Casino Gorman Grand Mexico); Bank Third Nat’l premises in New (E.D.Tex. Coushatta, F.Supp.2d 658 Inc., Group, 882 F.2d v. WEDGE in Nashville 1998) (holding plaintiff's claim of sexual as Cir.1989) (6th (moving away from employee did not by a casino sault “made emphasis on a previous the court’s did not specific jurisdiction because the claim interpretation the arise from possible by” advertising extensive out of the casino’s arise cause of action requirement a focus on the Louisi from the casino’s in Texas but arose the de having connection" a “substantial Compañía Panama operations); Luna v. ana activities). Aviacion, S.A., fendant’s in-state F.Supp. na De ness known as “substantive relevance.” 431. The court reasoned that plain- “[the] As implies, the name requires this test tiffs’ agreement advance reservation forum-related contacts substantively to be Hyatt hardly important, would be relevant, necessary, or even proof material, perhaps proof even a element of Inc., claim. See Buttonpro, Tecre Co. v. case,” slip emphasized and fall [the] (E.D.Wis.2005) (cit- F.Supp.2d accept plaintiffs’ argument Hyatt Marino v. Corp., 793 F.2d ‘arising “would be to render from’ (1st Cir.1986)). One iteration of this requirement ... nullity.” a virtual Id. at standard is known “proximate as the 430; Pizarro, see also 907 F.2d at 1259-60 test, cause” reasoning that a contact that is (holding injuries that personal sustained in proximate the legal cause of an injury is an Aruban hotel did not arise out of or substantively relevant ato cause of action result from in advertisements Puerto First, that Second, arises from it. The Rico). in the Third and Tenth Courts and Eighth appear Circuits to have fol- similarly applied the sub- Circuits have United, approach. Elec., lowed this stantive-relevance/proximate-cause stan- Radio & Mach. Workers Am. v. 163 dard. See Wims v. Beach Terrace Motor of 1080, Pleasant St. Corp., 960 F.2d 1089 Inn, Inc., 264, F.Supp. 759 267-69 (1st Cir.1992); Pizarro v. Hoteles Con (E.D.Pa.1991) (holding that the causal link Int’l, C.A, 1256, corde 907 F.2d 1259-60 between brochures the Inn sent to Penn- (1st Cir.1990); Marino, 793 F.2d at 429- at sylvania injury and the sustained the 30; Barkbuster, Inc., Morris v. 923 F.2d Inn too Jersey “simply in attenu- New (8th 1277, Cir.1991); 1281 Pearrow v. Nat’l arose from say injury ated to that the Co., & Accident Ins. 703 F.2d Beach the Common- Life Terrace’s (8th Cir.1983); 1068-69 v. Tanner Pennsylvania”); wealth of v. Carni- Dirks Gelfand Tours, (2d Motor 339 F.2d 321-22 Lines, F.Supp. val Cruise 975 642 Cir.1964). (D.Kan.1986) (finding the connection be- ship operator’s negligent tween the cruise Proximate cause requires the de preparation in Cali- ship of food on board fendant’s conduct to be both the cause fornia and of soliciting passengers its acts fact and the injury. foreseeable cause of sending to Kansas too tenuous tickets Dallas, Boys See Doe v. Clubs Greater of support jurisdiction). Inc., (Tex.1995). Un stringent der this more relatedness stan Gelfand, implicitly In the Second Circuit dard, purposeful the contact is a rejected on facts approach the but-for proximate injury cause of is an essential us. largely before similar to those liability element and substantively is thus There, sued F.2d at the Gelfands 321-22. plaintiffs relevant to a claim of harm. injuries sustained a tour bus for Marino, instance, for a Massachu- crash. during a motor vehicle brought setts resident suit in her home The court that the sale of bus tickets held against Hyatt, state corpora- Delaware in New was an insufficient basis York tion, injuries sustained when she over the establish slipped the bathtub of her Hawaii hotel the claim non-resident defendant because Marino, 321-22; room. 793 F.2d Applying did not Id. at arise from the sale. Co., the requirement restrictively, relatedness Signal see also Reich v. Oil & Gas (conclud- (S.D.Tex.1974) the court F.Supp. concluded that Marino’s claim any did not from” signed “arise business that that a contract Texas to build Ghana, Hyatt killing helicopter transacted Massachusetts. Id. at that crashed along a contin- workers, litigation the tenuous a contacts and rig oil was too two it). view, of this as the extent uum. the from Under say contact to tort arose re- goes degree of up, forum contacts Although urges us follow necessary to es- litigation to the latedness approach, we the substantive-relevance down, and jurisdiction goes tablish jurisdic generally pinning eschewed Maloney, supra 1299-1300. vice versa. alleged. claim analysis type tional on As articulated See, Michiana, e.g., 791-92. California, relationship of the de- “as Michiana, against dan we warned seeking to the state exercise fendant with plaintiffs pleadings driving gers tenuous, more grows over him analysis, stating approach such retracts, and jurisdiction also scope relationship a court’s focus from the “shifts by limiting circum- fairness is assured among defendant, and the plaintiff can com- under which the stances among the litigation relationship to the pel appear him and defend.” Vons Cos. litigation.” ... plaintiff, the forum Foods, Inc., Cal.4th Seabest (internal original) cita (emphasis at 790 899, 1085, P.2d 1094 Cal.Rptr.2d 926 omitted). reject categorical a tions We (1996); Univ., 976 Baylor v. see also Davis posing the of approach danger that runs M. 5, (Mo.Ct.App.1998); 9 William Although inquiry. too narrow an ostensi Actions, Richman, 72 in Civil Jurisdiction benefit, bly bright-line imbued with (1984) (review 1328, 1338-40 Cal. L.Rev. require to practice it would a court delve essay). the to into merits determine whether jurisdictional actually legal fact is cause jurisdictional sliding scale Although supra at injury. Maloney, of See 1290. analysis studiously avoids the extremes Moreover, application should not ease pres- two relatedness tests the other principal overshadow the constitutional ent, problems. it presents too a number due-process inquiry, which is whether the deciding jurisdiction significantly, Most defendant has “certain minimum contacts sliding blurs the based continuum on state] forum such that main [the specific and general distinction between tenance of the suit not offend ‘tradi does judicial system has jurisdiction that our play tional of fair and substantial notions firmly an es- provides and that embraced ” Shoe, justice.’ Int’l 326 U.S. 66 analyze courts tablished structure for (quoting Meyer, Milliken jurisdiction. questions personam of in 457, 463, 61 S.Ct. 85 L.Ed. 278 U.S. Removing Maloney, supra 1299-1300. (1940)). note, too, substan We judi- jurisdictional analysis from these standard is tive-relevance/proximate-cause spe- underpinnings general cial allows than stringent Supreme more Court together in the cific “to melt far, has, required. Helicopte thus least severely weakening] the de- middle ... ros, n. at 415 104 S.Ct. 1868. ability anticipate jurisdic- fendant’s its conduct.” Linda consequences tional “Sliding Relationship Scale” Simard, Meeting Expectations: Sandstrom Jurisdiction, seemingly Specific Two Attempting to moderate the Profiles sum, “this (2005). categorical effects of the but-for and sub- Ind. L.Rev. underlying fulfill tests, tradeoff does stantive-relevance some commenta- jurisdic- general goals have courts have of either espoused, tors and a few more “may raise far difficult “sliding approach that tion” and adopted, a scale” Id. at questions than resolves.” between forum relationship examines the 366-67. reasons, For these adopt we decline to yet The explicate has sliding-scale approach degree necessary relatedness. of relatedness

support specific jurisdiction over a nonresi- However, dent defendant. in Rush v. Sav- 4. Substantial Connection chuk, the Court did consider the relation Operative Facts between forum contacts and the litigation said, As we have the but-for related- in a case filed in Minnesota for ness test is too broad conceptually injuries arising from an Indiana automo- unlimited in scope, the substantive-rele- 320, 324, bile accident. 444 U.S. 100 S.Ct. vance/proximate-cause poses (1980). test too nar- 62 L.Ed.2d plaintiff inquiry, row an sliding-scale and the anal- proper claimed was in Minne- ysis conflates the fundamental distinction sota because the defendant’s insurance there, general between specific jurisdiction did business and the insur- er’s firmly obligation to defend indemnify embedded in our jurispru- insured the accident light concerns, litigation dence. of these inevi- some tably the focus that would determine applied courts ap- alternative rights victim’s and obligations. Id. at 327- proaches, requiring that a cause of action 28, 100 Holding S.Ct. 571. that the insur- “lie in the wake of the com- [defendant’s] company’s ance contacts could not be im- mercial activities” in the Deluxe puted purpose to the defendant for the Ice Cream Co. v. Corp., R.C.H. Tool establishing jurisdiction, the Court con- (7th Cir.1984), F.2d 1215-16 or that cluded “significant there were not contacts the forum contacts be “critical steps in between litigation the and forum” the be- the chain of [inju- events that led the cause “the insurance policy is not the sub- ry],” Cadiz, In re Oil Spill by Amoco ject matter of the case ... nor is it related (7th Cir.1983). F.2d 915-16 operative to the facts of the negligence Sixth generally Circuit has applied a test action.” Id. at 100 S.Ct. 571. The that falls somewhere “proximate between Court concluded that the insurance con- “but-for,” cause” and requiring a “sub- pertained only tract to the conduct and stantial connection” between the defen- litigation,” “not the substance of the [ ] and dant’s plaintiffs contacts and the claim to therefore the forum’s was not warrant the specific jurisdic- exercise of affected. Inc., tion. Group, See WEDGE 882 F.2d (6th Cir.1989); at 1091 Southern Mach. Our jurisprudence limited similar Indus., Inc., Co. v. Mohasco 401 F.2d ly suggests a ground, middle more flexible (6th Cir.1968). 384 n. 27 In WEDGE than substantive relevance but more struc Inc., Group, explained the court that the relatedness, tured than but-for in assess specific jurisdiction’s relatedness element ing the strength necessary connec “does not require that the cause of action defendant, forum, tion between the the formally ‘arise from’ defendant’s contacts litigation. the Royal, See Guardian with the forum requires] [but instead S.W.2d at 229-33. In Royal, Guardian we action, the cause of type, of whatever spoke terms of a “substantial connec have a substantial connection with the tion” between the nonresident defendant defendant’s in-state activities.” WEDGE and arising purposeful from action Inc., Group (emphasis (cit 882 F.2d at 1091 or conduct directed here. Id. at 226 Co., original) (quoting Southern Mach. 18,105 ing Burger King, 471 at 475 n. U.S. 27). 2174) 401 F.2d at 384 n. (stating long S.Ct. as it “[s]o creates hiking expedition guides’ conduct of the the a ‘substantial connection’ with they exercised reasonable and whether jurisdic single support act can even Andy. on The events supervising care in tion”); Compañía Argentina see also Shell the guides’ supervision of the trail and the Petroleo, Inc., Exploration, de S.A. v. Reef trial, will hike be the focus of the will (Tex.App.-Houston [1st 84 S.W.3d litigation’s most if not all of the consume denied) 2002, pet. (stating contacts Dist.] attention, overwhelming majority and the “must have ‘substantial connection’ to that evidence will be directed the injuries”) (citing in the alleged results Only question. thoroughly after consider- 226). Royal, Guardian 815 S.W.2d manner in which the hike our Considering jurisprudence own jury able to assess conducted will the be Rush, analysis in Court’s we claim. Druggs’ misrepresentation for a believe that nonresident defendant’s sum, misrepresentation] is [alleged “the to support forum contacts exercise of case ... nor subject not matter specific jurisdiction, there be a sub must operative facts of the is related stantial connection between those contacts Rush, negligence action.” U.S. at operative litigation. facts there connection S.Ct. Whatever Royal, See Guardian 229- promotional be Moki Mac’s between 33; Rush, operative materials sent to Texas and death, Andy’s we facts that led to do C. Relatedness sufficiently due- believe it is direct meet Mac’s Contacts cases from process Analogous concerns. Betsy Drugg alleges she was in other courts our view. trip Andy rafting duced to send on the courts in Texas have Federal district solicitation, Moki Mac’s direct which in generally held that nonresident’s in-state cluded statements made in Moki Mac’s advertising insufficiently related to release brochures it sent injury on negligence claim based Druggs. Specifically, Andy’s mother support an out of state to occurs claims made Andy she the decision to send jurisdiction. specific of Kervin exercise on the trip based on Mac’s assur Area, Inc., example, for v. Red River Ski “[y]ou ances that don’t ‘mountain need descending flight the fell while plaintiff camping man’ in of participate skills to one steps leading lodge to her ski wooden age our or trips,” children twelve above at 1385. The F.Supp. New Mexico. 711 to participate, are suited and “Moki Mac alleg- in Texas sued the ski resort Kervins steps provide you has taken reasonable fading maintain safe ing negligence in with appropriate equipment skilled and/or plaintiffs Id. asserted in premises. The But these the guides.” promises, for re- jurisdiction based on the personam claim, Druggs they would have sent not Texas, which included sort’s contacts with Andy rafting trip on the and he would not advertising and mail- print television hiking have fallen on the trail. ing potential brochures to customers. determined that “[ n i]n trip safety Certainly rafting on river court concern, accept as paramount we taken a re- personam jurisprudence has Andy Druggs’ might relationship true the claim that between strictive view of contacts, gone trip seemingly on the were it for not have causes of action link representations safety. require virtually about a direct between Moki Mac’s Id. at However, claim and contacts.” operative [the] facts [the] ultimately Although court deter- Druggs’ principally suit concern mined that general jurisdiction prop- an ski resort seeing after the resort’s ad- er, it specific jurisdiction held that was not in Michigan vertisement newspaper. 246 because there was no (2001). substantial Mich.App. connec- 633 N.W.2d tion between the resort’s advertising Claiming injured she was when resort em- Texas and negligent its ployees maintenance of the negligently loaded her onto a ski stairwell in New lift, Mexico. Id. plaintiff Michigan. filed suit in The court concluded that the resort’s ad- In Gorman v. Grand Casino Louisi- vertising the forum were insuf- ana, Inc.-Coushatta, plaintiff, a Texas ficient to support personam jurisdiction, resident, sued a Louisiana casino Texas and that it would violate process due claiming that its employee intentionally hale the Canadian into a Michigan resort served her a drink containing Benzodiaze- court: (one pine of the “date-rape” drugs) and [njotwithstanding purposeful

then made advances to F.Supp.2d her. 1 Michigan opportu- availment of business at 658. The court held that there was an nities through advertising, we are insufficient link between Gorman’s sexual- compelled presence find that harassment claim and the casino’s market- ju- other factors render the exercise of scheme Texas to the exer- Simply put, risdiction unreasonable. cise of jurisdiction, concluding “[bjillboard plaintiffs connection between cause of advertisements of slot machine [negligence] action and defendant’s payouts ... nothing ha[ve] to do with the Michigan advertising is so attenuated conduct of Id.; that employees.” casino’s that it juris- is unreasonable to exercise Luna, see also F.Supp. at 882-33 diction over defendant.... (holding claim involving plaintiffs death in a plane crash over Panama arose not from (internal omitted).4 Id. at 416 citations her purchase ticket in Texas but from analogous advertising Somewhat Panama). alleged negligence in cases are those that concern efforts to jurisdictions

Courts other have simi- recruit forum residents. Most courts have larly issue, addressed concluding mailing merely held that letters and ex- arising claims personal injury out of changing phone calls in recruitment efforts occurs outside the forum do not arise from support specific jurisdic- is insufficient to to a relate defendant’s forum advertis- tion over nonresidents claims arise ing. Resort, Oberlies v. Searchmont outside although some courts Inc., a Michigan resident visited a Canadi- have exercised when the defen- Wims, (conclud 1989) 4. F.Supp. See also 759 at 269 (holding personal injury that a claim ing Pennsylvania that plaintiff's injuries the at Virginia that occurred aat West crafts festival Jersey New motel did not arise from defen did not arise out of the defendant’s contacts dant’s forum contacts because there was no Maryland); with Slocum v. Sandestin Beach link causal between the motel’s brochures Hotel, Resort Div. # 1 Beachside Condo of Pennsylvania plaintiff’s sent to and the action Assn, 899, (E.D.Ark. F.Supp. 679 901-02 willful, "negligent for wanton and reckless 1988), dismissed, (8th appeal 855 F.2d 856 conduct”); Chen, F.Supp. Coleman v. 712 1988) (holding plaintiff's injuries Cir. that the 117, (S.D.Ohio 1988) 122 (holding slip- that a at a Florida resort were not related to the and-fall claim arose not from the state); defendant’s solicitation in the forum solicitation in Ohio but from the condition of Co., Disney F.Supp. Morse v. Walt World 675 forum); parking the hotel lot outside the 42, (D.Mass.1987) (same); 43-44 v. Szakacs County Smith v. merce, Chamber Com Jefferson of Cos., 1121, F.Supp. Anheuser-Busch 644 536, (D.Md.1988), F.Supp. 538-39 (N.D.Ind.1986) (same). 1123-24 [d (4th opinion, without 885 F.2d 865 Cir. aff' Texas, including contacts with forum. minimum recruited in the physically dant workers’ contract for the well signing a Loyola For in v. Univer- example, Cassell ex- services, “specific jurisdiction does not sity, a student who was resident Florida Appellants’ claims do basket- ist ... because play of was recruited to Tennessee Instead, they of contacts. university. arise out those for a New Orleans ball (E.D.Tenn.1968). committed tortious acts alleged arise out of F.Supp. 622-23 in (emphasis Syria.” ... in Id. university subsequently refused When the original).6 he sued for grant scholarship, Cassell a Id. at contract in Tennessee. breach of in Druggs our decision Siskind cite only the forum 623. The connections with Moki Mac’s their claim that domicile, it were that it was the student’s Andy’s death on Texas and solicitations the his had re- signed was where father sufficiently trail are hiking the Arizona contract, agents uni- cruitment jurisdiction. to support related versity had communicated there mail Siskind, the oper- at 437. But 642 S.W.2d The court that the telephone. Id. held liabil- supported ative facts Siskind cause of action not arise out “asserted does ity and related to defendant’s forum Tennessee” and business transacted from those significantly contacts differ thus there was an insufficient connection The school solicited stu- presented here. litigation the forum and the between magazines through national dents in Texas justify jurisdiction. Id. at 624.5 the contract telephone books and local specifically and the school Kelly Syria v. Devel- between Siskind Shell Petroleum V., that, during left provided if Siskind’s son opment B. two Texas oil well workers tuition be reim- Syr- year, their his would who had contracted services school his son was companies per- ian oil were while bursed. Id. 435-36. When killed expelled, the school refused to refund Sis- forming Syria. work 213 F.3d 855. tuition. Siskind sued school wrongful Their families sued for death kind’s Texas, promised there for the refund. but the Fifth Circuit held was circumstances, specific jurisdiction we held there no over their claims. Under these that, claim Id. at court was “a connection between Siskind’s 844. The noted even contacts Syrian company possessed for breach of contract and Villa’s assuming Inc., so, Factors, doing distinguished college 858-59 the court ordinary pet.) (holding recruiting athletic from commercial no (Tex.App.Dallas activities. city em telephone between conversation ployee insufficient to and the Univ., Duquesne v. See also Hardnett Texas). minimum contacts establish Cf. (D.Md.1995) (holding F.Supp. 922-24 of Va., App.3d v. Univ. Ohio Barile negligence against claim the student’s (1981) (holding that two N.E.2d 612-15 Pennsylvania university injuries for sustained by university agents visits to the forum attending while a rock concert there did not plaintiff play purpose recruiting the foot university’s of” "arise out forum-related personam was sufficient to establish ball Maryland mail contacts with which included plaintiff's breach of con over acceptance letter materials and an claim); Baylor University, tract Davis home); Tung v. Am. Univ. student’s (holding (Mo.Ct.App.1998) S.W.2d 13-14 (Iowa Caribbean, 871-72 N.W.2d agents dispatching of to the forum that the (holding employer’s Ct.App.1984) that forum of a actively recruit a resident is state to sending two letters and contacts included support spe quality quantity to sufficient making telephone were not three calls suffi plaintiff’s contract and ciently jurisdiction related the claim for for breach of to cific claim). employment to misrepresentation breach of an contract fraudulent City v. specific jurisdiction); Am. Riverview of Here, however, with Texas.” Id. at prescription 437. nication of that [to Texas].” Moki in Mac’s statements brochures and release do not the direct bear same injuries Similarly, which for link Andy’s to did injury as claim Siskind’s Druggs recovery seek are on Andy’s based money recover lost under the contract. Arizona, on hiking death trail in promotional representations, Mac’s the relationship operative between the

while theoretically to Andy’s injury related of litigation pro- facts and Moki Mac’s hiking on the trail in sense that but in simply motional activities Texas are too there, might them he not have been are jurisdiction’s satisfy specific attenuated to not sufficiently operative related due-process concerns. underlying injury facts Andy’s for which V. Conclusion Druggs recovery wrongful seek in death to sustain the exercise of specific court appeals’ judg- We reverse the jurisdiction. ment and remand the case to court to Druggs’ consider the assertion that Moki closely This case more resembles subject general jurisdiction Mac is in Anderson, presented situation in Brocail v. Texas. 552 (Tex.App.-Houston [14th denied). 2004, pet. case, Dist.] In that dissenting Justice filed a JOHNSON Brocail, Tigers a former Detroit baseball opinion, joined. in which Justice MEDINA player, by underwent treatment a team JOHNSON, joined by Justice Justice physician Michigan. in hisOf MEDINA, dissenting. volition, own Brocail moved to his in home rehabilitation, during Texas jurisdiction his and at long-arm Texas’ over non request, doctor, Anderson, Brocail’s his as far the federal residents reaches as prescribed follow-up treatments that were Royal constitution allows. Guardian by Assurance, group English administered healthcare China Exch. Ltd. (Tex. P.L.C., Houston. Id. at Brocail Clays, 555-56. sued 1991). But, Anderson in Texas for medical negligence just how far constitution physical fraud related therapy, to his since simple question allows has not been and alleged Washington, Texas had specific International Co. v. Shoe (1945). because Anderson had prescriptions faxed 90 L.Ed. Maloney, Texas and Texas Specific communicated See Mark Personal Ju group regarding healthcare prog- Brocail’s risdiction and “Arise From Relate ress. Id. at 558. Brocail also asserted ... Does It Requirement To” What Mean?, was proper because Anderson & LEE L. REV. WASH. (1993). misrepresentations had made exercising Texas 1266-67 As to a state’s failing fully a non personam jurisdiction disclose the true extent over resi dent, injuries process “only Brocail’s forum requires his contacts. federal due appeals subject Id. at court of held that order a defendant to a Brocail’s re- if not judgment personam, pres claims did not arise from or he be any territory late to “Bro- contacts because ent within the he physical injury cail complaining about certain minimum contacts with it based tort Any on a course of treatment. such that the maintenance of the suit does judg- play occurred in the of fair exercise medical not offend ‘traditional notions ” ment in prescribing physical justice.’ course and substantial International Shoe, therapy Michigan, from Milliken v. (quoting the commu- 326 U.S. at 316

589 rules. 463, 339, choice-of-law 457, tion of the forum’s Meyer, 311 U.S. S.Ct. (1940)). jurisdiction claiming substan- Specific Similarly, a defendant L.Ed. 278 comports may change nonresident defendant over a tial seek inconvenience process if constitutional due with federal venue. alleged liability arises from King, 471 Burger U.S. activity with or is related an conducted Nacio Helicopteros forum state. which has is Utah Hall, 408,

nales v. 466 U.S. de Colombia Can- tours the Grand guided conducted 8, 1868, L.Ed.2d 404 414 & n. S.Ct. gener- many years. In addition yon for (1984). It is defendant’s conduct and “the a website advertising maintaining and al are criti connection with the forum” that access, Moki Mac’s potential for clients Easy Country, Inc. cal. Michiana Livin’ target- attract include efforts to customers (Tex.2005) Holten, v. persons to it sends ing particular whom Rudzewicz, Corp. (citing Burger King rafting describing Moki Mac’s brochures U.S. S.Ct. trips. audience hiking targeted and Its (1985)). L.Ed.2d 528 inquired previously persons includes who wrong and nothing trips. enter- its At for There about or have taken prise arranging affairs so that avoids prior to the time reserva- years several doing in activities engaging business in or Andy’s trip in tions were made particular directed toward a forum and audience included targeted Moki Mac’s thereby precludes that forum’s exercise of out, As the sets Texas residents. jurisdiction over it. See World-Wide Moki efforts which were some of Mac’s Woodson, 444 Volkswagen Corp. v. toward Texas residents included directed 286, 297, 100 62 L.Ed.2d 490 Texas, hiring public regular advertising (1980). key inquiry The is whether de- groups and target firms to media relations not, If arranged fendant has so its affairs. Texas, soliciting Texas operators tour reasonably anticipate then should be- “he targeted mass di- through residents and ing into haled court” the forum. utilizing particu- and campaigns, rect-mail overly Court has not been group lar to become de customers facto in its pro- restrictive view of federal due organize promote and plan, leaders to juris- cess limits on a forum’s exercise given has trips. Moki Moki Mac also Mac purposefully diction over nonresidents that trip to some Texas prices discounted direct activities toward the forum’s resi- brought potential customers clients who dents: attention. Mac’s [Wjhere purposefully a defendant who guided on Moki Mac’s raft- Participants has directed his at forum resi- hiking in activities trips engage jurisdiction, defeat he dents seeks to which Moki Mac conditions encounter that the present compelling must case pose injury risks of death. recognizes

presence of some other considerations Acknowledg- Its and “Visitors brochures render unreasonable. would (the agreement) Risk” VAR ment of form usually may be such considerations Most risks, warn that enumerat- identify certain short through means accommodated or unantic- and “other unknown ed risks finding unconstitutional. death,” injury or ipated risks cause clash of the example, potential For Mac has taken reason- that Moki state forum’s law with the “fundamental sub- equip- provide “appropriate steps able another State policies” stantive social can guides you so en- applica- ment skilled through may be accommodated and/or joy activity you may which for have be been effective when and it where was case, skilled.” One the specific dangers signed of by Druggs this Texas. —in of falling warned a hike during The Court notes that for Texas courts to resulting injury Andy or death. Drugg properly exercise over during fell a hike and was killed. resident, Moki Mac as a non Moki Mac (1) must had minimum contacts with Druggs

The received Moki Mac’s bro- by Texas purposefully availing itself of from a acquaintance. chures Texas After here, privilege conducting of reviewing and the brochures correspond- and (2) liability arising from or related to Texas, those with Moki Mac from 569. The contacts. Court con- Druggs decided thirteen-year-old to allow cludes Moki Mac’s contacts with Tex- Andy go to on of trips. one Moki Mac targeted particular audience, as were a Andy’s confirmed reservation and in accor- fortuity,” were purposeful, not a “mere and procedures dance with its usual forwarded juris- prong thus of the satisfied the first Druggs agreement a VAR which process inquiry. dictional id. due See Moki Mac required signed to be before However, determines that persons Court trips. could one of take their Bet- the Druggs’ suit did not “arise from or sy Andy signed agreement and in Tex- relate to” Moki activities in Mac’s as and returned Moki Mac. The and prong the second due agreement set out several risks which process inquiry was not met. could be encountered on a trip specified possibility injury of or As of refer part analysis its the Court death: proximate-cause” ences a test “restrictive

In consideration of the services of Appeals. of used the First Circuit Inc., Expeditions, Moki Mac River their Invs., Ltd., v. Tak How Nowak officers, agents, employees, and stock- (1st Cir.1996), F.3d 708 cert. denied 520 holders, persons and all other or entities L.Ed.2d 493 (here- businesses, associated with those (1997). analogous Nowak facts are collectively inafter referred to as “Moki my opinion those before us and in view the Mac”), agree I follows: ... as sets out a fair approach and reasonable agree

I responsibility to assume for jurisdictional of aspect relatedness Therefore, the risks identified.... I as- question. full responsibility myself, sume in- Hong Kong Tak was a corporation How cluding children, my for bodily minor Kong which Hong owned hotel death, injury, personal of property, loss Hong had no outside place business expenses thereof as a result those assets, shareholders, Kong. It had no inherent my negligence risks an/or adver- employees Massachusetts. It

participating activity. in this maga- tised in international national and hotel zines and listed hotel various agreement shall be effective [T]his guides agencies in Massa- used travel heirs, binding myself, upon my as- chusetts. On it sent direct one occasion estate, signs, representatives, mail How solicitations to former Tak my and all family, including members guests, including guests living previous any minors accompanying me. company employing Massachusetts. The special At its appearance hearing, Moki Mr. had an Nowak Massachusetts representative Mac’s agreement testified with Tak How for rates when Mac considered the VAR agreement employees stayed at the hotel. When subject sarily unreasonable to for busi- be employees Hong Kong its went to at forum when corporation the to ness booked reservations accompanied her to a result. hotel. Mrs. Nowak lead tortious the the efforts trip a the Hong Kong husband to on business increases corporation’s own conduct they pursuant at to stayed the hotel will a resident likelihood that by company. made the Mrs. reservations is favorably. If the resident respond swimming in Nowak the hotel drowned engaged in inte- harmed while Mr. Nowak and his children sued pool. corporation the gral relationship to the How in Tak How re- Tak Massachusetts. establish, think the nexus sought to we the moved the case federal court and the of the contacts and cause between federal court refused to dismiss district sufficiently strong survive action is jurisdiction. lack of The First personal the due at least at process inquiry the so, affirmed. doing the court Circuit stage. relatedness surveyed ap- the and discussed various proaches process taken the due related- Tak How’s the nexus between While issue, just as the does its ness Court employer’s] busi- solicitation of [Nowak’s then the opinion. The Nowak court noted not Nowak’s death does ness and Mrs. reputation a of proponent First Circuit’s as proximate cause relation- constitute “proximate-cause” the restrictive more link represent meaningful it ship, does to the standard as relatedness issue the Tak How’s contact and between importance foreseeability of due the harm suffered. “Foreseeability process analysis: is a criti- component process inquiry, cal in the due at 715-16. avail- particularly evaluating purposeful applied further The court then consider- ment, and we think it also informs by as ations articulated (emphasis Id. at 715 prong.” relatedness if the being appropriate determining added). Burger King, also 471 U.S. See jurisdiction by a fo- exercise of (“[T]he foreseeability that is critical to would rum over a non resident defendant process analysis ... due the defen- be constitutional: dant’s conduct and connection with forum State are such that he rea- ... should does end Our conclusion sonably anticipate being only haled into court may inquiry. Personal there.”) (quoting Volkswagen, Worldr-Wide if it with tradi- comports be exercised 297). con- U.S. The Nowak court play of and substan- tional notions “fair proximate Shoe, cluded that to the adherence justice.” tial International in jurisdictional cause issues construct requirement, Out of this should not be so strict as tort issues: factors developed a series of courts have subjecting a in the the fairness of why, We see no reason context that bear on ... as relationship foreign a contractual or tribunal between nonresident “(1) subsequent and a burden business association follows: tort, (2) per interest proximate the absence of cause the forum state’s appearing, (3) always plain- the exercise adjudicating dispute, se should render specific jurisdiction obtaining unconstitutional. convenient tiffs interest relief, (4) judicial sys- and effective directly foreign corporation

aWhen ef- obtaining most tem’s interest targets ongoing residents in an effort controversy, fective resolution relationship, and further a business (5) of all sover- the common interests purpose, not neces- achieves eigns in promoting substantive social tion Texas in this case falls within the policies.” boundaries of federal constitutional due Nowak, process requirements. Elec., Id. at (quoting United Radio & F.3d at 715-16. Mach. Workers v. Pleasant Corp., St. (1st F.2d Cir.1992)); Burger see The court of appeals performed the “fair King, 471 U.S. 477-78. ap- Such an play justice” analysis substantial proach properly focuses on and empha- which Court has indicated sizes the actions of a nonresident defen- both protects improp- a non resident from dant that purposefully has directed actions er jurisdiction by exercise of residents, at a forum’s and on the reason- yet might showing allow a lesser for the foreseeability able to the defendant that its jurisdiction exercise of a defendant over actions will make it amenable to suit purposefully who directs toward activities that forum. Burger King, forum. See While Moki might Mac strong have a (noting 477-78 considerations which some- argument, non conveniens see TEX.

forum times “serve to establish reasonable- 71.051, CIV. § PRAC. & REM. CODE ness of upon showing a lesser facts before us do not present a compelling of minimum contacts than would otherwise case that Texas’ exercise of be required”). agree I with the court of over Moki Mac would be unreasonable. appeals’ analysis and determination Burger King, 471 U.S. at 477. Moki specific jurisdiction exercise of over Mac’s conduct was particularly designed to by Moki Mac not offend tradi- Texas would and did increase the likelihood that Texas tional play notions of fair and substantial residents respond favorably. would Andy justice. 221 Drugg’s death occurred while he was en- I would affirm court judgment gaged in integral activities to the relation- appeals. ship Moki Mac spe- induced its efforts cifically directed toward Texas residents. reasonably should have foreseen

that an injury to a Andy client such as

while the client participated

integral to the relationship directly pro- through

duced Moki Mac’s activities di-

rected toward Texas residents would sub- ject Moki Mac to being sued over the Petitioner, RESOURCES, INC., IRA injury in Texas. meaningful There was a link between Moki Mac’s actions directed

toward Druggs’ Texas residents and the Sonya Enrique Juan GRIEGO and suit. Accordingly, I would hold that Griego, Respondents. Druggs’ substance of the suit is related to No. 05-0469. Moki Mac’s activities which were purpose- fully residents; directed toward Texas Supreme Court of Texas. prong second process inquiry the due April satisfied; it is not unreasonable or unfair jurisdic- Moki Mac for Texas to exercise suit; tion over Moki Druggs’ Mac as to the subject to a “fair play and substantial

justice” analysis, jurisdic- the exercise of

Case Details

Case Name: Moki Mac River Expeditions v. Drugg

Court Name: Texas Supreme Court

Date Published: Mar 2, 2007

Citation: 221 S.W.3d 569

Docket Number: 04-0432

Court Abbreviation: Tex.