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Affirmed in Part, Reversed and Remanded = in Part,=20 and Opinion filed September 25, 2007.

 

 

In The

 

Fourteenth Court=20 of Appeals

____________

 

NO. 14-06-01083-CV

____________

 

THE JOHNS=20 HOPKINS UNIVERSITY, = Appellant

 

V.

 

RAHUL K.=20 NATH, M.D., = Appellee

 

AND

 

RAHUL K. NATH, = M.D.,=20 Appellant

 

V.

 

ALLEN J. BELZBERG, = M.D.,=20 Appellee

 

 

On Appeal from the = 215th District Court

Harris=20  County,=20 Texas

Trial Court Cause = No. 2006-10826

 

 

O P I N I=20 O N

Rahul K.=20 Nath sued Johns Hopkins University (JHU) and Allen J. Belzberg, = claiming=20 defamation and tortious interference.  Both JHU and Belzberg=20 specially appeared.  The trial court granted the special = appearance=20 of Belzberg, dismissing him from the suit, but denied the special=20 appearance of JHU.  JHU appeals the denial of its special = appearance,=20 and Nath appeals the granting of Belzberg=3Ds. =20 Because the evidence is sufficient to support the trial = court=3Ds implied=20 finding that exercising personal jurisdiction over = Nath=3Ds claims=20 against Belzberg would violate due process, we affirm the trial=20 court=3Ds order=20 granting Belzberg=3Ds special=20 appearance.  Because, under the undisputed evidence regarding = JHU=3Ds contacts=20 with Texas, JHU does not have sufficient contacts to satisfy due = process,=20 we reverse the trial court=3Ds order=20 denying JHU=3Ds special=20 appearance and remand the case to the trial court with = instructions to=20 dismiss the claims against JHU for lack of personal=20 jurisdiction.

Factual=20 and Procedural Background

Dr. Rahul=20 Nath is a Board Certified reconstructive microsurgeon.  He = is, or has=20 been, the director of the Texas Nerve and Paralysis Institute in = Houston=20 as well as the chairman and founding member of the International = Society=20 of Brachial Plexus and Nerve Injury.  He specializes in the = treatment=20 of brachial plexus injuries, and he is one of only a handful of = doctors in=20 the United States who specialize in brachial plexus repair=20 operations.  His patients, most of whom first come to him as = infants,=20 hail from inside and outside the state of Texas.

Nath=20 formerly worked with Dr. Saleh Shenaq at the Texas = Children=3Ds Hospital=20 Brachial Plexus Clinic in Houston.  In July of 2004, Nath = left the=20 Clinic to open his own practice, and approximately a year later, = Shenaq=20 did the same.  Shenaq allegedly made defamatory statements = about Nath=20 to current and prospective patients.  These alleged = statements gave=20 rise to the initial suit, in which Nath sued Shenaq, Baylor = College of=20 Medicine (as Shenaq=3Ds=20 employer, sponsor, and promoter), and Texas Children=3Ds=20 Hospital, an entity affiliated with Baylor, which gave privileges = to=20 Shenaq.  His suit alleged tortious interference with existing = and=20 prospective business relationships and contracts, and = defamation. =20

During May=20 of 2005, JHU held and sponsored the Brachial Plexus Injury = Symposium, in=20 Baltimore, Maryland.  During the Symposium, Dr. Allan = Belzberg spoke=20 with several patients of Nath who had attended the = conference. =20 Belzberg allegedly said several disparaging things about Nath to = these=20 patients, including that Nath was being investigated by the FBI = for=20 fraudulent actions, that Nath had been fired by Baylor College of=20 Medicine, that Texas doctors like Nath do not perform the medical=20 procedures they say they will perform, but rather Ajust close=20 the patients up,@ = that Nath=20 did not publish his research, and that Nath was patenting certain=20 necessary medical procedures and then charging excessive fees to = perform=20 those procedures.  Two patients to whom these statements were = made=20 were from Texas, and one was from California.  Belzberg = allegedly=20 also made similar statements, both in person at the conference and = in=20 subsequent emails, to a Canadian doctor who attended the = conference. =20

After=20 hearing of Belzberg=3Ds=20 statements, Nath amended his petition to add defamation and = tortious=20 interference claims against Belzberg and his employer JHU.  = JHU and=20 Belzberg separately filed special appearances, challenging the=20 court=3Ds ability=20 to exercise personal jurisdiction over them.  After a = non-evidentiary=20 hearing, the trial court denied the special appearance of JHU, but = granted=20 the special appearance of Belzberg.  JHU appeals the denial = of its=20 special appearance, and Nath appeals the granting of = Belzberg=3Ds.=20

Standard=20 of Review

Whether a=20 trial court has personal jurisdiction over a defendant is a = question of=20 law.  BMC Software Belgium, N.V. v. Marchand, 83 = S.W.3d 789,=20 794 (Tex. 2002).  When, as here, the trial court issues no = findings=20 of fact and conclusions of law, all facts necessary to support the = judgment and supported by the evidence are implied.  See = id.=20 at 795.  Parties can challenge the legal and factual = sufficiency of=20 these implied factual findings. Id.  In conducting a = legal=20 sufficiency analysis, we review the evidence in the light most = favorable=20 to the challenged finding and indulge every reasonable inference = that=20 would support it. See City of Keller v. Wilson, 168 S.W.3d = 802, 822=20 (Tex. 2005).  We must credit favorable evidence if a = reasonable=20 factfinder could and disregard contrary evidence unless a = reasonable=20 factfinder could not.  See id. at 827.  We must = determine=20 whether the evidence at trial would enable reasonable and = fair-minded=20 people to find the facts at issue.  See id.  The=20 factfinder is the sole judge of the credibility of the witnesses = and the=20 weight of their testimony. See id. at 819.

When=20 reviewing a challenge to the factual sufficiency of the evidence, = we=20 examine the entire record, considering both the evidence in favor = of, and=20 contrary to, the challenged finding.  Cain v. Bain, = 709 S.W.2d=20 175, 176 (Tex. 1986).  After considering and weighing all the = evidence, we set aside the fact finding only if it is so contrary = to the=20 overwhelming weight of the evidence as to be clearly wrong and = unjust.=20 Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. = 1986).  The=20 trier of fact is the sole judge of the credibility of the = witnesses and=20 the weight to be given to their testimony. GTE Mobilnet of S. = Tex. Ltd.=20 P=3Dship v.=20 Pascouet, 61=20 S.W.3d 599, 615B16 (Tex.=20 App.BBHouston=20 [14th Dist.] 2001, pet. denied).  We may not substitute our = own=20 judgment for that of the trier of fact, even if we would reach a = different=20 answer on the evidence.  See Maritime Overseas Corp. v. = Ellis,=20 971 S.W.2d 402, 407 (Tex. 1998).  The amount of evidence = necessary to=20 affirm a judgment is far less than that necessary to reverse a = judgment.=20 GTE Mobilnet, 61 S.W.3d at 616.

Law of=20 Personal Jurisdiction

The Texas=20 long-arm statute governs Texas courts=3D = exercise=20 of jurisdiction over non-resident defendants.  = Marchand, 83=20 S.W.3d at 795; see Tex.=20 Civ. Prac. & Rem. Code '' 17.041B.045. =20 The statute permits the exercise of jurisdiction over nonresident=20 defendants who do business in the state of Texas, and the statute = lists=20 activities that constitute Adoing=20 business.@ =20 Id.; Tex. Civ. = Prac. &=20 Rem. Code '17.042. =20 However, the list is not exclusive.  Marchand, 83 = S.W.3d at=20 795.  The language of section 17.042 extends the Texas=20 courts=3D = personal=20 jurisdiction as far as federal constitutional due process will = permit.=20 Id. (citing  U‑Anchor Adver., Inc. v. = Burt, 553 S.W.2d=20 760, 762 (Tex. 1977)). 

Federal=20 due process allows the exercise of personal jurisdiction over = nonresident=20 defendants when (1) the defendant has established minimum contacts = with=20 the forum state, and (2) the exercise of jurisdiction comports = with=20 traditional notions of fair play and substantial justice. Id.=20 (citing Int=3Dl Shoe Co.=20 v. Washington, 326 U.S.=20 310, 316 (1945)); PHC-Minden, L.P. v. Kimberly-Clark Corp., = No.=20 05-0823, 2007 WL 2457843, at *2, BBS.W.3dBB,BB = (Tex.=20 Aug. 31, 2007).  For a defendant to have sufficient contacts = with the=20 forum, it is essential that there be some act by which the = defendant=20 Apurposefully=20 avails@ = itself of=20 the privilege of conducting activities in the forum state.  = Burger=20 King Corp. v. Rudzewicz, 471 U.S. 462, 474B76=20 (1985).  The Texas Supreme Court has identified at least = three=20 aspects of the Apurposeful=20 availment@ = inquiry.  Michiana Easy Livin=3D = Country,=20 Inc. v. Holten, 168=20 S.W.3d 777, 784B85 (Tex.=20 2005).  First, only the defendant=3Ds contacts=20 with the forum are relevant, not the unilateral activity of = another party=20 or a third person. Id. at 785.  Second, the contacts = relied=20 upon must be purposeful rather than random, isolated, or = fortuitous.=20 Id.  Third, the defendant must seek some benefit, = advantage,=20 or profit by Aavailing@ = itself of=20 the jurisdiction. Id.

A=20 defendant=3Ds minimum=20 contacts can give rise to either specific or general jurisdiction. = See=20 PHC-Minden, L.P., 2007 WL 2457843, at *2.  Specific = jurisdiction=20 is established if the claims in question arise from or relate to = the=20 defendant=3Ds=20 purposeful contacts with the forum. Id. General = jurisdiction is=20 established if the defendant has continuous and systematic = contacts with=20 the forum, without considering the plaintiff=3Ds=20 claims.  See id. at *2B3.

A general=20 jurisdiction inquiry is very different from a specific = jurisdiction=20 inquiry and involves a more demanding minimum‑contacts = analysis, with a=20 substantially higher threshold. Id. at *4.  Usually, = the=20 defendant must be engaged in longstanding business in the forum = state,=20 such as marketing or shipping products, or performing services, or = maintaining one or more offices there.  Id. =  Activities=20 that are less extensive than that will not qualify for general=20 jurisdiction. Id.  Courts analyze general jurisdiction = without=20 regard to the nature of the alleged claims.  See id. =  As=20 an analytical device to insure that any related forum activities = are not=20 improperly infiltrating the dispute-blind inquiry into general=20 jurisdiction, the Texas Supreme Court has stated that courts = should=20 consider a hypothetical claim that has no connection to Texas and = ask if=20 the defendant=3Ds=20 purposeful contacts with Texas are so pervasive and extensive that = they=20 are sufficient to support personal jurisdiction as to such a = claim. Id.=20 at *4B5.=20   In conducting a general‑jurisdiction = analysis, we are=20 concerned with the quality rather than the quantity of the = contacts. =20 See Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d = 801,=20 809B10 (Tex.=20 2002).   In assessing the quality of the contacts, we do = not=20 view each contact in isolation; rather, we carefully investigate, = compile,=20 sort, and analyze all contacts to determine if together they are=20 sufficient to support general jurisdiction.  See id. = at=20 809.  For this reason, a general jurisdiction inquiry can be = tedious.=20 See PHC-Minden, L.P., 2007 WL 2457843, at *6.

The=20 plaintiff has the initial burden of pleading sufficient = allegations to=20 bring the nonresident defendant within the provisions of the Texas = long-arm statute.  Brocail v. Anderson, 132 S.W.3d = 552, 556=20 (Tex. App.CHouston=20 [14th Dist.] 2004, pet. denied).  A defendant challenging a = Texas=20 court=3Ds personal=20 jurisdiction over it must negate all jurisdictional bases. =20 Id.

Jurisdictional=20 Analysis

A.     =20 No Jurisdiction Over Belzberg

Nath=20 argues that specific jurisdiction over Belzberg is proper because=20 Belzberg=3Ds actions=20 were intended to injure Nath=3Ds=20 reputation and practice in Texas, making Texas and a resident of = Texas the=20 foci of his tortious conduct.  He relies on Calder v. = Jones,=20 465 U.S. 783 (1984), and the Aeffects=20 test@ = based=20 thereon.  However, in Michiana, the Texas Supreme = Court=20 rejected the Aeffects=20 test.@ = See=20 Michiana Easy Livin=3D = Country,=20 Inc., 168=20 S.W.3d at 788B92=20 (rejecting the Aeffects=20 test@);=20 Cerbone v. Farb, 225 S.W.3d 764, 771B72 (Tex.=20 App.BBHouston=20 [14th Dist.] 2007, no pet.) (concluding that the Michiana = court=20 rejected the Aeffects=20 test@). =20 The Michiana court did not construe the finding of specific = jurisdiction in Calder as turning on the = defendants=3D = alleged=20 wrongdoing intentionally directed at a forum resident; rather, the = Michiana court construed Calder=3Ds=20 finding of=20 specific jurisdiction as turning on the defendants=3D = Asubstantial=20 >presence=3D@ = in the=20 forum state based on the fact that the allegedly defamatory = article on=20 which the defendants collaborated was for their employer, the = National=20 Enquirer, which sold more than 600,000 copies in the forum = state every=20 week. See Michiana Easy Livin=3D = Country,=20 Inc., 168=20 S.W.3d at 789.  Thus, under Michiana, Calder = applies=20 only in cases in which the nonresident=3Ds contacts=20 with the forum are significant enough to constitute a Asubstantial=20 presence@ = in the=20 forum.[1]=20 See id.; see also Moki Mac River Expeditions v. = Drugg, 221=20 S.W.3d 569, 585 (Tex. 2007) (holding that, for a nonresident=20 defendant=3Ds forum=20 contacts to support the exercise of specific jurisdiction, there = must be a=20 substantial connection between the defendant=3Ds=20 purposeful contacts with the forum and the operative facts of the=20 litigation).

In this=20 case, although Nath allegedly has suffered harmful effects in = Texas,=20 nothing in the evidence shows a substantial connection between the = defendants=3D = purposeful contacts with Texas and the operative facts of the=20 litigation.  All of the allegedly tortious activity occurred = in=20 Baltimore, Maryland, or in emails to a Canadian doctor, not in=20 Texas.  Belzberg did not come to Texas, he did not call, and = he did=20 not send correspondence to Texas.[2] =20 In no way did Belzberg reach out to the state of Texas.=20

Nath=20 asserts that Belzberg=3Ds=20 allegedly defamatory statements at the Symposium in Maryland were=20 purposeful attempts to interfere with Nath=3Ds business=20 relations with two of Nath=3Ds Texas=20 patients and to solicit them to be Dr. Belzberg=3Ds=20 patients.  However, this alleged defamation and solicitation = was not=20 sufficiently directed or targeted at Texas. See Revell v. = Lidov,=20 317 F.3d 467, 473 (5th Cir. 2002) (distinguishing Calder on = the=20 ground that the article was not directed at Texas readers as = distinguished=20 from readers in other states).  The statements and emails by = Belzberg=20 were targeted at a fellow doctor, residing in Canada, and patients = of=20 Nath, who admittedly come from all across the country.[3] =20 Thus, the statements were not targeted at Texas residents, but at = people=20 with any connection with NathCa group=20 with a geographical range far beyond Texas.

Nothing in=20 the evidence regarding Belzberg=3Ds contacts=20 with Texas shows that Nath=3Ds claims=20 against him arise from or relate to Belzberg=3Ds=20 purposeful contacts with Texas or that there is a substantial = connection=20 between Belzberg=3Ds=20 purposeful contacts with Texas and the operative facts of the = litigation.=20 See Moki Mac River Expeditions, 221 S.W.3d at = 585B88. =20 We, therefore, affirm the trial court=3Ds order=20 granting Belzberg=3Ds special=20 appearance.  Nath=3Ds issue is=20 overruled.

B.     =20 No Jurisdiction Over JHU

JHU also=20 appeals the denial of its special appearance.  = Nath=3Ds case=20 against JHU is based on respondeat superior, not on specific = tortious acts=20 committed by JHU.  Specific jurisdiction over JHU would have = to be=20 premised on specific jurisdiction over Belzberg.  Having = found that=20 specific jurisdiction does not exist over Belzberg, it cannot = exist over=20 JHU.  Therefore, we examine JHU=3Ds contacts=20 with Texas to determine if the trial court=3Ds holding=20 that it had general jurisdiction over JHU was correct.

JHU=20 neither owns nor leases any buildings, sites, or facilities in the = state=20 of Texas.  JHU=3Ds=20 principal place of business is in Baltimore, Maryland.  The=20 undisputed evidence shows that JHU=3Ds contacts=20 with Texas are as follows:

$           = ;       =20 JHU has=20 ten employees who reside in Texas.  Most are part time, and = in each=20 case their residence in Texas is based on personal circumstance or = the=20 unilateral act of a third party.  Eight employees perform = jobs that=20 are online or require national travel and have chosen Texas as = their home=20 for personal reasons.  Two employees are nurse practitioners = provided=20 by JHU to PepsiCo, and they are subject to employment at whatever = facility=20 Pepsi designates.  Pepsi assigned these two nurse = practitioners to=20 Mesquite and Houston respectively.

$           = ;       =20 Some of=20 JHU=3Ds students are from = Texas.  In 2006, thirty-nine Texas residents enrolled as=20 undergraduates.  JHU has mailed typical undergraduate = admission=20 circulars to Texas and has participated in three undergraduate = recruitment=20 receptions in Texas.  JHU also has athletic teams that = sometimes=20 compete with Texas universities.

$           = ;       =20 JHU=20 engages in collaborative research, largely biomedical or otherwise = scientific, with research institutions in Texas such as M.D. = Anderson or=20 Baylor.  These collaborations come about due to conditions = placed on=20 grant money or because of recognized fields of expertise. =20 JHU=3Ds end of the = research=20 collaboration is performed at the JHU facilities in = Baltimore.  In=20 2006, research collaboration with Texas institutions constituted = less than=20 one percent of JHU=3Ds research grants.=20

$           = ;       =20 JHU has=20 been the beneficiary of gifts, bequests and donations from Texas=20 residents.  Specifically, JHU has received by donation or = bequest oil=20 and gas royalty interests in Texas.  These oil and gas = royalty=20 payments yielded $215,219 in 2006, representing some .08% of=20 JHU=3Ds annual investment = income.  JHU was named in 2005 as a defendant in a will = contest=20 proceeding in Angelina County, where the sons of a JHU donor are=20 contesting the decedent=3Ds donation to the=20 university.

$           = ;       =20 JHU=20 maintains a registered agent for service of process in Texas, = arising from=20 consulting work JHU did for some school districts in Texas in the=20 past.  The consulting work has since been = discontinued.

$           = ;       =20 JHU=20 maintains an informational website that can be accessed by Texas=20 citizens.  Its primary function is to provide information = about=20 JHU=3Ds academic=20 curricula, its faculty and personnel, and to offer a wide array of = information about JHU=3Ds research=20 and educational operations.

1)      =20 Some Contacts Are Not Purposeful

We find=20 that several of the alleged contacts are not purposeful contacts = by JHU=20 with Texas.  The fact that JHU had ten employees in Texas = shows no=20 availment of Texas law because JHU has shown that each of those = employees=20 lives in Texas either of their own accord, or because a third = party,=20 namely PepsiCo, ordered them to do so.  Their location in = Texas is=20 wholly independent of any decision by JHU.  =

Likewise,=20 the evidence shows that, although JHU collaborates on research = projects=20 with Texas institutions from time to time, this does not reflect=20 purposeful contacts by JHU with Texas.  The evidence shows = that the=20 grants are shared with Texas institutions on occasion because the = sponsors=20 have donated money to JHU and a Texas institution jointly, or = because=20 highly specialized or experienced researchers happen to work at = Texas=20 institutions.  These collaborations are not the result of a = targeted=20 effort to conduct business in Texas, but rather they result from = the=20 wishes of the grant sponsor or the desire to work with the most = qualified=20 researchers, regardless of where they may be.   See = Michiana=20 Easy Livin=3D = Country,=20 Inc., 168=20 S.W.3d at 785 (Aa=20 defendant will not be haled into a jurisdiction solely based on = contacts=20 that are >random,=20 isolated, or fortuitous.=3D@); see=20 also Gallant v. Trustees of Columbia Univ., 111 F. Supp. 2d = 638, 642=20 (E.D. Pa. 2000) (holding that there was no purposeful availment = when the=20 record did not show that research contracts in forum were the = result of=20 university=3Ds=20 purposeful or extensive availment, as opposed to generally = participating=20 in interstate academic activities).

2)      =20 Other Contacts Are Not Substantial

JHU=3Ds other=20 contacts with Texas are simply not substantial enough to support = general=20 jurisdiction. See PHC-Minden, L.P., 2007 WL 2457843, at=20 *6B7. =20 JHU is a defendant in a will-contest proceeding based on its = status as a=20 beneficiary under the will being challenged, and JHU has answered = without=20 contesting personal jurisdiction.  However, this failure to = contest=20 personal jurisdiction in a case in which the court would = apparently be=20 able to exercise specific jurisdiction does not show that JHU has=20 continuous and systematic contacts with Texas.  Likewise,=20 JHU=3Ds status=20 as a defendant in this will-contest suit is not a high quality = contact=20 supporting general jurisdiction.

JHU has=20 mailed recruiting literature to students in Texas, has attended = three=20 undergraduate receptions, has admitted thirty to fifty = undergraduates from=20 Texas, and has athletics teams that compete in the state from time = to=20 time.  These types of contacts would give a defendant little = reason=20 to believe it could be haled into court.  See World-Wide=20 Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980);=20 PHC-Minden, L.P., 2007 WL 2457843, at *6.

JHU=20 operates a website which can be accessed from Texas.  = However, the=20 website=3Ds primary=20 function is to provide information about the university = Afor=20 students, prospective students or other faculty who may have an = interest=20 in additional information related to JHU=3Ds academic=20 or research activities.@  The=20 website is not aimed specifically at students in Texas.  = Rather it is=20 an informational tool for any prospective student, regardless of = location,=20 who wants to gather information on JHU. 

Internet=20 contacts are evaluated on a Asliding=20 scale.@ =20 Experimental Aircraft Ass=3Dn, Inc. v.=20 Doctor, 76=20 S.W.3d 496, 506 (Tex. App.CHouston=20 [14th Dist.] 2002, no pet.).  At one end of the spectrum, the = website=20 may support a finding of personal jurisdiction when a defendant = does=20 business over the internet by entering into contracts and through = the=20 repeated transmission of computer files.  Id.  At = the=20 other end, personal jurisdiction cannot be based on the passive = posting of=20 information on the internet. Id. at 506B07. =20 Courts evaluate the middle ground contacts based on the level of=20 interactivity and the commercial nature of the exchange of=20 information.  Id. at 507.[4]=20

Nath=20 argues that the website has been held in the past to support the=20 establishment of personal jurisdiction, citing an unreported = Louisiana=20 federal district court case.  See Peyman v. Johns Hopkins=20 Univ., No. Civ. A-99-3717, 2000 WL 973665 (E.D. La., July 12,=20 2000).  The court in Peyman gave very little detail = about the=20 JHU website, stating that the JHU website advertises to students = and=20 Asolicit[s]=20 contributions from alumni.@ = Id.=20 at *2.  The court, admitting that no contracts are = entered into=20 via the website, nevertheless concluded that it is Amore than=20 passive advertisement@ = and=20 therefore, falls into the middle range of the sliding scale. = Id. at=20 *4.  The court then used the website as a contact supporting=20 jurisdiction within a general jurisdictional analysis. Id. = at=20 *3B4.

While the=20 Peyman court stressed that JHU=3Ds website=20 is used to solicit contributions, in this case, the only evidence = of the=20 nature of JHU=3Ds website=20 is an affidavit from the Executive Director of Communications and = Public=20 Affairs for JHU.  He states that the primary purpose of the = website=20 is to provide information.  There is no mention of business = being=20 transacted on the website, or even interactivity on the = website. =20 Under these facts, the website is not a substantial factor in = favor of=20 jurisdiction.  See Experimental Aircraft=20 Ass=3Dn,=20 Inc., 76=20 S.W.3d at 506B07.

JHU also=20 has oil and gas royalty interests in the state of Texas.  = However,=20 owning oil and gas interests is not enough of a contact to confer = general=20 jurisdiction.  See Shaffer v. Heitner, 433 U.S. 186, = 213=20 (1977) (holding that ownership of property in the forum alone is = not=20 sufficient to support general jurisdiction); Bryant v. = Roblee, 153=20 S.W.3d 626, 630B31 (Tex.=20 App.BBAmarillo=20 2004, no pet.) (holding that ownership of real property in Texas = by itself=20 does not establish general jurisdiction and that bank did not have = continuous and systematic contacts with Texas despite holding real = estate=20 liens on eleven properties in Texas securing loans on an aggregate = principal amount of about $10,000,000).  Moreover, these = royalty=20 interests represented only .08% of JHU=3Ds=20 investment income last year.

Maintaining=20 an agent for service of process also does not by itself give rise = to=20 general jurisdiction, but is only a factor to be considered in the = jurisdictional analysis.  See Zamarron v. Shinko Wire Co., = Ltd., 125 S.W.3d 132, 144 (Tex. App.CHouston=20 [14th Dist.] 2003, pet. denied); see also Wenche Seimer v. = Learjet=20 Acquisition Corp., 966 F.2d 179, 181B82 (5th=20 Cir. 1992).  The importance of the registration in this case = is=20 diminished because JHU proved that the agent was registered a = decade ago=20 due to some work it was doing with Texas school districts.  = This work=20 has since been terminated.

In=20 summary, when JHU=3Ds=20 purposeful contacts with the forum are cumulated, they do not = amount to=20 the type of continuous and systematic activity in the forum = necessary to=20 exercise general jurisdiction.  JHU has not been engaged in=20 significant and longstanding business in Texas.  See = PHC-Minden,=20 L.P., 2007 WL 2457843, at *4B7 (holding=20 that isolated trips to Texas, more than $1,500,000 in purchases = from Texas=20 vendors, and two contracts with Texas entities were not = substantial enough=20 to support general jurisdiction).  Nor is the sum of the = above=20 purposeful contacts great enough to meet the more demanding=20 minimum‑contacts analysis of general jurisdiction. See = id.=20  JHU=3Ds=20 purposeful contacts with Texas are not pervasive and extensive = enough to=20 allow Texas courts to exercise personal jurisdiction over a = hypothetical=20 claim against JHU that has no connection to Texas. See id. = at=20 *4B5. =20 Under the uncontroverted evidence regarding JHU=3Ds contacts=20 with Texas, the trial court erred in impliedly finding general=20 jurisdiction.  Because the evidence relating to = JHU=3Ds contacts=20 with Texas conclusively proved that JHU has not established = sufficient=20 minimum contacts with Texas to allow the exercise of personal = jurisdiction=20 over JHU, we conclude that the trial court erred in denying=20 JHU=3Ds special=20 appearance.  JHU=3Ds issue is=20 sustained.

Conclusion

We affirm=20 the trial court=3Ds order=20 granting Belzberg=3Ds special=20 appearance, but reverse the trial court=3Ds order=20 denying JHU=3Ds special=20 appearance, sever the latter order, and remand to the trial court = with=20 instructions to dismiss all claims against JHU for want of = personal=20 jurisdiction.

 

 

 

 

/s/     =20 Wanda McKee Fowler

Justice

 

 

Judgment=20 rendered and Opinion filed September 25, 2007.

Panel=20 consists of Justices Anderson, Fowler, and Frost.

 


[1]  In his brief, Nath argues that = Calder=20 and Keeton focus on the circulation of periodicals = because the=20 large volume of circulation in each case allowed an inference that = the=20 defamatory statements were actually read in California and New = Hampshire=20 respectively.  We disagree with this characterization of = those=20 cases.  The Supreme Court discussed the large circulations in = those=20 cases because they demonstrated the defendants=3D extensive activities in the forum, not = because=20 they showed that the defamation was read in the forum.  The=20 Michiana court pointed to Keeton v. Hustler Magazine, = Inc.,=20 465 U.S. 770 (1984), as proof that the defendants=3D activities in the forumBBrather than the residence of the=20 victimBBwas Athe important factor@ in determining the jurisdictional = question.=20 See Michiana Easy Livin=3D Country, Inc., 168 S.W.3d at 789 (noting that the = United States=20 Supreme Court in Keeton placed weight on the fact that = defendant=20 had sold more than 10,000 copies of its magazine every month in = the forum=20 state, in which the plaintiff was not a resident).  = Therefore,=20 contrary to Nath=3Ds position, the fact that it is = uncontroverted=20 that the allegedly slanderous statements were heard does nothing = in this=20 case to show that Belzberg or JHU have sufficient minimum contacts = with=20 Texas.

[2]  Nath cites to Brown v. Flowers = Indus.,=20 Inc., 688 F.2d 328 (5th Cir. 1982), as a very similar case to = this=20 one.  But even in Brown, the exercise of personal = jurisdiction=20 was based on an allegedly defamatory telephone call made by a = defendant=20 directly to the forum.  See id. at 330B31; Michiana Easy = Livin=3D Country, Inc., 168 S.W.3d at 790 n.70.  Nath = also relies=20 on Paul Gillrie Inst., Inc. v. Universal Computer Consulting, = Ltd.,=20 183 S.W.3d 755 (Tex. App.CHouston [1st Dist.] 2005, no = pet.).  Paul=20 Gillrie is not on point because that case involved publishing = and=20 mailing an allegedly defamatory article to subscribers within = Texas, many=20 of whom paid for their subscriptions.  See id. at=20 758.

[3]  Of the four affidavits produced = by Nath in=20 response to the special appearance, two were from Texas residents = and two=20 were from non-Texas residents. 

[4]  The Fifth Circuit has noted that = this=20 Asliding scale@ test is not well suited to the general=20 jurisdiction inquiry. Revell, 317 F.3d at 471.  = Nevertheless,=20 courts, including this one, have used it in a general jurisdiction = analysis to determine whether a defendant=3Ds website is a significant factor in = support of=20 jurisdiction. See Experimental Aircraft Ass=3Dn, Inc.,=20 76 S.W.3d at 507.  Therefore, we follow this=20 = precedent.

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