Plaintiffs are the survivors of the co-pilot (Michael M. Grandclement) and of two of the passengers (Peter I. Siemer and Alad-dine H. Bahri 2 ) on board Learjet N-711AF, which crashed on August 11, 1979 while en route from Athens, Greece to Jeddah, Saudi Arabia. The aircraft disappeared while traversing Egyptian airspace. The wreckage of the aircraft was discovered nearly eight (8) years later in the Egyptian desert.
In sum, plaintiffs’ decedents disappeared from the face of the earth on August 11, 1979, when the plane they were flying disappeared over Egypt. Less than two years later, all of plaintiffs filed wrongful death actions in New York asserting that their decedents were dead. All of these cases were ultimately dismissed on forum non conveniens grounds. 3 Learjet was a defendant in one of plaintiffs’ suits. Plaintiffs did not appeal.
Ten years later and eight years after being dismissed in New York, plaintiffs filed this second set of wrongful death actions in the United States District Court for the Eastern District of Texas. The district court granted Learjet’s Motion to Dismiss on all grounds asserted: lack of in personam jurisdiction; improper venue; forum non conveniens; collateral estop-pel; and limitations. Because we hold that the district court correctly ruled that it had no jurisdiction over the corporation in the cause of action asserted, we do not reach defendant’s other lines of defense.
THE CONSTITUTIONAL REQUIREMENTS OF “DUE PROCESS”
Plaintiffs are all residents of Greece or other European countries. Decedents were all residents of Greece. The aircraft was permanently based, maintained and serviced in Greece. It was operated by a Greek company. It was not designed or manufactured in Texas. It was never owned by a Texas resident. It had never been repaired or serviced in Texas. Learjet is a Delaware corporation with its principal place of business in Kansas, where it designed, manufactured and sold its products. Plaintiffs urge us to hold, quite simply, that in state service on a designated corporate agent without more, satisfies the requirements of due process. This Court *181 has never so held and we decline to do so now.
The extent of Learjet’s contacts with Texas from the date it began operations to February 26, 1989, the date plaintiffs filed this suit, are revealed in the record. They had not had an employee, an officer or director, an interest in real property, a deposit in any financial institution, or a facility or office located within the state. All sales were made from products warehoused in Kansas or Arizona. Only slightly over one percent (1%) of Learjet’s sales, consisting of spare parts went to buyers with Texas addresses. Learjet does hold a certificate from Texas -giving it the right to do business in Texas. It does have an agent for process in Dallas, Texas. A wholly-owned, but separately operated, subsidiary transacts business in San Antonio, pursuant to a government contract. Advertisements have been placed in national journals that are distributed in Texas (as well as all other states), and Learjet has, on occasion, mailed information to prospective customers who happen to be located in Texas.
The fact that service is proper does not resolve the question as to “whether [the] plaintiff has demonstrated a sufficient basis for th[e] court’s exercise of personal jurisdiction.”
Applewhite v. Metro Aviation, Inc.,
Whether jurisdiction in the sense of due process exists depends upon concepts of “fairness” and “convenience” and not upon mere compliance with procedural requirements of notice, nor even corporate “presence” within the state.
International Shoe Co. v. Washington,
Because plaintiffs’ causes of action, as alleged, in no way arose out of Learjet’s contacts with Texas, plaintiffs had to show, in order to sustain jurisdiction, that Texas acquired general jurisdiction over Learjet. The leading Supreme Court case on general jurisdiction is
Helicopteros Nacionales de Colombia, S.A. v. Hall,
The facts in
Bearry v. Beech Aircraft Corp.,
The facts in
Ratliff
are remarkably similar to those here and its holding — that no general jurisdiction existed — if followed would be dispositive. The defendant had no office, bank account, or warehouse in South Carolina.
Ratliff,
“We think the application to do business and the appointment of an agent for service to fulfill a state law requirement is of no special weight in the present context. Applying for the privilege of doing business is one thing, but the actual exercise of that privilege is quite another.”
Id. at 748.
Plaintiffs tout
Burnham v. Superior Ct,
Burnham, a New Jersey resident, during a visit to California to visit his children was served with a court summons and his estranged wife’s divorce petition. She was a resident of California. The courts of that state rejected Burnham’s contention that the Due Process Clause of the Fourteenth Amendment prohibited courts of that state from asserting personal jurisdiction over him. The Supreme Court unanimously affirmed and agreed that the rule allowing jurisdiction to be obtained over a non-resident by personal service in the forum state could not be held violative of due process under the circumstances of that case.
Justice SCALIA (with three Justices concurring)' reasoned that jurisdiction based on physical presence, alone, constitutes due process because it is a continuing tradition of our legal system. Justice BRENNAN (with three Judges concurring), applied a more flexible approach. He had in essence this to say: Historical pedigree, although important, is not the only factor to be taken into account in establishing whether a jurisdictional rule satisfies due process, and that an independent inquiry into the fairness of the prevailing in-State service rule must be undertaken.
Justice- WHITE wrote separately to the effect that there had been no showing here that the rule allowing service was so lacking in common sense that it should be held violative of Due Process. Justice STEVENS, in a special concurrence, make some interesting observations. 5
Contrary to plaintiffs’ assertion, nothing in either' plurality opinion suggests that service on a corporation’s registered agent “automatically subjects the corporation to jurisdiction.”
Burnham,
to the extent it provides any guidance, reinforces Learjet’s position. Justice SCALIA noted “the continuous and systematic contact rule applied
*183
only to corporations, which have never fitted comfortably in a jurisdictional regime based primarily upon de facto power over the defendant’s person.”
Id.,
To assert, as plaintiffs do, that mere service on a corporate agent automatically confers
general jurisdiction
displays a fundamental misconception of corporate jurisdictional principles. This concept is directly contrary to the historical rationale of
International Shoe
and subsequent Supreme Court decisions.
See International Shoe,
Not only does the mere act of registering an agent not create Learjet’s general business presence in Texas, it also does not act as consent to be hauled into Texas courts on any dispute with any party anywhere concerning any matter. The Texas Business Corporation Act provides that service on a registered foreign corporation may be affected by serving its president, any vice president, or the registered agent of the corporation. (Tex. Bus.Gorp. Act Ann. art. 8.10(A)). No Texas state court decision has held that this provision acts as a consent to jurisdiction over a corporation in a case such as ours — that is where plaintiffs are non-residents and the defendant is not conducting substantial activity within the state. Learjet does not contest the “potential” jurisdiction of Texas courts. They do assert and we agree that the appointment of an agent for process has not been a waiver of its right to due process protection.
The Eighth Circuit, construing an Arkansas registration statute even less explicit as to its limited scope, found that the statute could be read, “at its broadest, to cover only causes of action arising out of ... transactions in Arkansas.”
Pearrow v. National Life & Accident Ins. Co.,
In short, a foreign corporation that properly complies with the Texas registration statute only consents to personal jurisdiction where such jurisdiction is constitutionally permissible. Due process, as this Court often has said, is a flexible concept that varies with the particular situation. *184 Our due process jurisprudence has evolved substantially since the seminal case of International Shoe, but under any analysis, it would be violative of due process to require Learjet to defend this suit in Texas. The district court was eminently correct in so holding. 6
We affirm the district court’s dismissal of this case.
AFFIRMED.
Notes
. Also referred to as Aladin Bahri and Allead-deen Hassan-al Bahri.
.See Opinions of October 6, 1981 and May 12, 1983; see also Orders of Judgment of October 7, 1981 and May 19, 1983. A fifth action, filed by the survivor of Teresa Drake, another passenger on board Learjet N-711AF, was also dismissed by the May 1983 order.
. "As the defendant’s sole contact with the State of Louisiana is an appointed agent for service of process, the defendant's contact does not satisfy the minimum contacts requirement of International Shoe and therefore maintenance of this suit in this jurisdiction would offend the tradi *182 tional notions of fair play and substantial justice.” Jones, 1989 WESTLAW at 57130.
. "For me, it is sufficient to note that the historical evidence and consensus identified by Justice SCALIA,, the considerations of fairness identified by Justice BRENNAN, and the common sense displayed by Justice WHITE, all combine 'to demonstrate that this is, indeed a very easy case.” Then he noted: "Perhaps the adage about hard cases making bad law should be revised to cover easy cases.”
Burnham,
.
The circumstances are reminiscent of
Dalton v. R. & W. Marine, Inc.,
"..., aside from its role as the forum state, Louisiana has no interest in this litigation. It appears that the attorneys are the only participants with any ties to the forum.” Id. at 1363.