Information Services Group, Inc. v Rawlinson (Tex.App. - Houston [14th Dist.] Nov. 5,
2009)(Brown) (accelerated, interlocutory appeal from the trial court’s order granting appellee’s special
appearance)(defendant found to lack sufficient minimum contacts to support the assertion of specific
jurisdiction)
AFFIRMED: Opinion by Justice Jeff Brown
Before Justices Brock Yates, Frost and Brown
14-09-00242-CV Information Services Group, Inc., Technology Partners International, Inc. and TPI
Eurosourcing, L.L.C. v. Tony Rawlinson
Appeal from 61st District Court of Harris County
Trial Court Judge: Al Bennett
OPINION
This is an accelerated, interlocutory appeal from the trial court’s order granting appellee Tony Rawlinson’s
special appearance. In two issues, the appellants Information Services Group, Inc., Technology Partners
International, Inc., and TPI Eurosourcing, L.L.C. contend that the trial court erred in granting the special
appearance. Because we hold that Rawlinson lacks sufficient minimum contacts to support the assertion
of specific jurisdiction, we affirm.
I
Rawlinson is a former employee of TPI Eurosourcing, L.L.C. (“Eurosourcing”). Rawlinson worked for
Eurosourcing from June 2004 until May 2008. Eurosourcing is a Texas limited liability company with
operations in the United Kingdom. Rawlinson, a citizen and resident of the U.K., worked for Eurosourcing
in the U.K. exclusively. Eurosourcing is a branch or subsidiary of Technology Partners International, Inc.
(“Technology Partners”), a Texas corporation that has its principal place of business in The Woodlands,
Texas. In 2007, Information Services Group, Inc. (“Information Services”), through a purchase agreement
with MCP-TPI Holdings, LLC (“MCP-TPI”),[1] another Texas company, acquired ownership of Information
Services and Eurosourcing. Information Services is a Delaware company that has its principal place of
business in Connecticut.
In the course of Rawlinson’s employment relationship, he entered into employment agreements with
Eurosourcing and a confidentiality agreement with Eurosourcing and Technology Partners. He also
acquired an ownership interest in MCP-TPI, and executed a non-competition, non-solicitation, and non-
disclosure agreement with MCP-TPI. In connection with Information Services’s acquisition of Technology
Partners and Eurosourcing, Rawlinson executed a subscription agreement in which he agreed to invest
part of the sales proceeds he received from his equity interest in MCP-TPI, and he also executed non-
competition, non-solicitation, and non-disclosure agreements with Information Services. Rawlinson also
was issued a Eurosourcing computer to access appellants’ website and his email account, and he traveled
to Texas twice at Eurosourcing’s direction for annual conferences.
The address of the Eurosourcing office through which Rawlinson worked is Albany House, Market Street,
Maidenhead, Berkshire SL6 8BE, U.K. Rawlinson’s employment agreements specified that his primary
place of employment was his home in the U.K. and that the agreements were subject to the laws of
England and Wales. The confidentiality agreement among Eurosourcing, Technology Partners, and
Rawlinson also provided that it was governed by English law and further provided that the parties agreed
to submit to the exclusive jurisdiction of the English courts. Rawlinson’s agreements with Information
Services included choice-of-law provisions specifying that either New York or Delaware law applied.
Rawlinson executed his employment agreements and all of the other agreements in the U.K. Rawlinson’s
communications with Eurosourcing, Technology Partners, or Information Services representatives outside
of the U.K. were infrequent and he did not initiate them. Rawlinson was never an employee of Technology
Partners or Information Services.
Less than two months after his departure from Eurosourcing, Rawlinson went to work for EquaTerra
Europe, Limited, in the U.K. EquaTerra Europe is a subsidiary of EquaTerra, Inc., a Delaware corporation
with its principal place of business in Texas. The appellants and Equaterra, Inc. are competitors in the
business of providing various consulting services to companies throughout the United States and Europe.
Under the restrictive covenants in his agreements with the appellants, Rawlinson was prohibited from
working for a competitor for at least six months after his departure. According to the appellants, after he
resigned, Rawlinson also took confidential and proprietary information with him to his new employer in
violation of his confidentiality agreements.
In July 2008, the appellants sued Rawlinson and Equaterra, Inc. in Harris County.[2] The appellants
alleged that Rawlinson breached three non-disclosure, non-solicitation, and non-competition agreements.
The appellants also alleged that EquaTerra violated two letter agreements containing non-solicitation
provisions, and additionally asserted claims of tortious interference, unfair competition, and unjust
enrichment against EquaTerra. In response, Rawlinson filed a special appearance. He later amended his
special appearance and filed it with a supporting affidavit. The appellants specially excepted to these
filings and sought a continuance to take Rawlinson’s deposition. Rawlinson then filed an amended special
appearance and an amended affidavit. After the appellants deposed Rawlinson in Houston, they
responded to his special appearance. Following a non-evidentiary hearing, the trial court signed an order
on February 24, 2009, granting Rawlinson’s special appearance and dismissing him from the case.
II
A
Whether a trial court has personal jurisdiction over a defendant is a question of law we review de novo.
Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007); BMC Software Belgium, N.V. v.
Marchand, 83 S.W.3d 789, 794 (Tex. 2002). When, as here, the trial court issues no findings of fact and
conclusions of law, all facts necessary to support the judgment and supported by the evidence are
implied. BMC Software, 83 S.W.3d at 795. But when the appellate record includes the reporter’s and clerk’
s records, parties can challenge the legal and factual sufficiency of these implied factual findings. BMC
Software, 83 S.W.3d at 795; Brocail v. Anderson, 132 S.W.3d 552, 556 (Tex. App.—Houston [14th Dist.]
2004, pet. denied).[3]
B
The plaintiff has the initial burden of pleading sufficient allegations to bring the nonresident defendant
within the provisions of the Texas long-arm statute. BMC Software, 83 S.W.3d at 793; Brocail, 132 S.W.3d
at 556. A defendant challenging a Texas court’s personal jurisdiction over it must negate all jurisdictional
bases alleged. BMC Software, 83 S.W.3d at 793; Nat’l Indus. Sand Ass’n v. Gibson, 897 S.W.2d 769, 772
(Tex. 1995).
C
Texas courts may exercise jurisdiction over a nonresident if the Texas long-arm statute authorizes the
exercise of personal jurisdiction and the exercise of jurisdiction is consistent with federal and state
constitutional guarantees of due process. Moki Mac, 221 S.W.3d at 574); BMC Software, 83 S.W.3d at
795. The Texas long-arm statute authorizes Texas courts to exercise jurisdiction over a nonresident
defendant who “does business” in the state. Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (Vernon 2008).
The Texas Supreme Court has interpreted the broad language of the Texas long-arm statute to extend
Texas courts’ personal jurisdiction “‘as far as the federal constitutional requirements of due process will
allow.’” BMC Software, 83 S.W.3d at 795 (quoting Guardian Royal Exch. Assurance, Ltd. v. English China
Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991)). As a practical matter, therefore, we need consider only
whether it is consistent with federal constitutional requirements of due process for Texas courts to assert
personal jurisdiction over the nonresident defendant. Moki Mac, 221 S.W.3d at 575; Brocail, 132 S.W.3d
at 557.
Personal jurisdiction over a nonresident defendant is constitutional when two conditions are met: (1) the
defendant has established minimum contacts with the forum state; and (2) the exercise of jurisdiction
comports with traditional notions of fair play and substantial justice. Int’l Shoe Co. v. Washington, 326 U.S.
310, 316 (1945); BMC Software, 83 S.W.3d at 795. Minimum contacts are sufficient for personal
jurisdiction when the nonresident defendant purposefully avails itself of the privilege of conducting
activities within the forum state, thus invoking the benefits and protections of its laws. Int’l Shoe, 326 U.S.
at 319; Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 785 (Tex. 2005). Three factors
important in determining whether a defendant has purposefully availed itself of the forum are: (1) only the
defendant’s contacts with the forum matter, (2) the acts relied on must be purposeful rather than merely
fortuitous, and (3) the defendant must seek some benefit, advantage, or profit by availing itself of the
forum. Michiana, 168 S.W.3d at 784. Because of the unique and onerous burden placed on a party
called upon to defend a suit in a foreign legal system, the minimum-contacts analysis is particularly
important when the defendant is from a different country. Asahi Metal Indus. Co. v. Superior Court, 480 U.
S. 102, 114 (1987); BMC Software, 83 S.W.3d at 795.
D
Texas courts may exercise two types of jurisdiction based on a nonresident’s contacts with the state. If the
defendant has made continuous and systematic contacts with the forum, general jurisdiction is established
whether or not the defendant’s alleged liability arises from those contacts. Moki Mac, 221 S.W.3d at 575;
BMC Software, 83 S.W.3d at 796. In contrast, when specific jurisdiction is alleged, we focus the minimum-
contacts analysis on the relationship among the defendant, the forum, and the litigation. Moki Mac, 221 S.
W.3d at 575–76. Specific jurisdiction is established if the defendant’s alleged liability arises out of or is
related to an activity conducted within the forum. Id. at 576. For a nonresident defendant’s forum contacts
to support an exercise of specific jurisdiction, there must be a substantial connection between those
contacts and the operative facts of the litigation. Id. at 580, 585. To identify the operative facts of the
litigation, we select those facts that would be the focus of the trial. See id.; Pulmosan Safety Equip. Corp.
v. Lamb, 273 S.W.3d 829, 839 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). Here, the appellants
allege only specific jurisdiction.
III
On appeal, the appellants contend that Rawlinson engaged in acts constituting “doing business” in Texas
as provided in the Texas long-arm statute because they alleged that Rawlinson entered into contracts with
Texas residents and engaged in other purposeful contacts constituting “doing business” in Texas. See
Tex. Civ. Prac. & Rem. Code Ann. § 17.042. The appellants also contend that they demonstrated that
Rawlinson has constitutionally sufficient minimum contacts to support specific jurisdiction and that the
assumption of jurisdiction would not offend traditional notions of fair play and substantial justice.
In their original petition, the appellants alleged that Rawlinson was amenable to service of process
pursuant to the Texas long-arm statute because he “entered into several contracts with Texas residents
that called for performance in part in Texas, including, but not limited to, a contract of employment with
[Eurosourcing], a Texas company . . . .” The appellants further alleged that Rawlinson executed a
confidentiality agreement with Technology Partners and Eurosourcing, that he agreed not to engage in
any competition or perform any services for a competitor, and that his employment with EquaTerra
breached three of his agreements with the appellants. Additionally, the appellants alleged that Rawlinson
solicited business from the appellants’ clients, solicited the appellants’ employees to leave their
employment, and took the appellants’ confidential information and gave it to EquaTerra.[4] Because the
exercise of jurisdiction under the Texas long-arm statute is limited by federal and state due-process
requirements, we need only consider whether the assertion of jurisdiction accords with the due-process
guarantees. See Moki Mac, 221 S.W.3d at 575.
The appellants primarily contend that Rawlinson’s various agreements with Texas entities establish
minimum contacts. Specifically, the appellants point to Rawlinson’s execution of employment agreements
with Eurosourcing, a Texas limited-liability company, which incorporated the restrictive covenants in a
contemporaneously executed confidentiality agreement with both Eurosourcing and Technology Partners,
also a Texas company. Additionally, the appellants allege that Rawlinson entered into two more contracts
with MCP-TPI, another Texas limited-liability company “by which he was also employed and in which he
owned an equity interest.” One of these agreements included restrictive covenants and was governed by
Texas law. Further, the appellants contend, the restrictive covenants protected, among other things, the
confidential information stored on Texas-based servers that Rawlinson regularly accessed in the daily
performance of his job using a computer Eurosourcing issued to him. Rawlinson’s electronic mail was also
routed through these same servers. Additionally, Rawlinson also made two trips to Texas as required for
his job.
These contacts, the appellants contend, show that Rawlinson purposefully availed himself of the privilege
of conducting activities within Texas, thereby invoking the benefits and protection of its laws. See Burger
King v. Rudzewicz, 471 U.S. 462, 475–76 (1985). But the appellants do not allege that Rawlinson
engaged in any acts constituting a breach of contract in Texas, nor do they explain how the contracts
required Rawlinson to conduct activities in Texas. Merely contracting with a Texas company does not
constitute purposeful availment for jurisdictional purposes. See, e.g., IRA Res., Inc. v. Griego, 221 S.W.3d
592, 597–98 (Tex. 2007) (per curiam); Alenia Spazio, S.P.A. v. Reid, 130 S.W.3d 201, 213 (Tex. App.—
Houston [14th Dist.] 2003, pet. denied); Shell Compania Argentina de Petroleo, S.A. v. Reef Exploration,
84 S.W.3d 830, 838 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). Nor does simply being employed
by a Texas company. See, e.g., Gonzalez v. AAG Las Vegas, L.L.C., ___ S.W.3d ___, No. 01-08-00377-
CV, 2009 WL 3490989, *4–5 (Tex. App.—Houston [1st Dist.] October 29, 2009, no pet. h.); Rushmore Inv.
Advisors, Inc. v Frey, 231 S.W.3d 524, 530 (Tex. App.—Dallas 2007, no pet.); Gustafson v. Provider
HealthNet Servs., Inc., 118 S.W.3d 479, 483 (Tex. App.—Dallas 2003, no pet.).
Further, viewed in the context of the appellants’ allegations, the Texas contacts the appellants rely on
appear more attenuated than purposeful. In their petition, the appellants alleged that Rawlinson breached
three agreements: (1) the Confidentiality and Proprietary Information Agreement executed on June 7,
2004 (among Technology Partners, Eurosourcing, and Rawlinson); (2) the Non-Competition, Non-
Solicitation, Non-Disclosure and Lock-Up Agreement executed on May 30, 2007 (between Information
Services and Rawlinson); and (3) the Restricted Stock Unit Award Agreement and Restrictive Covenant
Agreement executed on November 16, 2007 (between Information Services and Rawlinson). The first of
these, the Confidentiality and Proprietary Information Agreement, identified Eurosourcing as “a branch [of
Technology Partners] registered in England and Wales” and reflected Eurosourcing’s and Rawlinson’s U.
K. addresses. This agreement also specified that it was governed by English law and the parties agreed
to submit to the exclusive jurisdiction of the English courts. Moreover, it was ancillary to Rawlinson’s
employment agreements, which similarly specified that they were governed by the laws of England and
Wales. The more recent of the two employment agreements further provided that the parties agreed to
submit to the non-exclusive jurisdiction of the English courts. Additionally, although Rawlinson’s
employment agreements provided that Eurosourcing could require Rawlinson to work or travel outside of
the U.K., it designated Rawlinson’s “Place of Work” as “your home address in England” and never
mentioned Texas as a potential place for performance. The other two agreements allegedly breached
were with Information Services, a Delaware corporation, were governed by either New York or Delaware
law, and neither of these agreements contemplated performance in Texas.
As noted in Michiana Easy Livin’ Country, Inc. v. Holten, the United States Supreme Court has held that
choice-of-law provisions should be considered when determining whether a defendant has purposely
availed itself of the benefits and protections of a state’s laws. 168 S.W.3d at 792 (citing Burger King, 471
U.S. at 482). Further, the Michiana court instructed that “insertion of a clause designating a foreign forum
suggests that no local availment was intended.” Id. Here, the forum-selection clauses, while not
dispositive, provide some evidence that no local availment was intended, as does the designation of
Rawlinson’s place of work as his home address in the U.K. Additionally, Rawlinson also signed these
agreements in the U.K., and the appellants do not contend that Rawlinson ever worked for any of them in
Texas.
The appellants also point out that Rawlinson entered into two agreements with MCP-TPI, a Texas
company, and those agreements include a Texas choice-of-law provision. The appellants also focus on
Rawlinson’s equity interest in MCP-TPI, stressing that an ownership interest in a Texas company is a much
more significant contact than mere employment by a Texas company. But MCP-TPI is not a party to the
lawsuit, and the appellants have not asserted in their petition that any alleged breach of the agreements
with MCP-TPI constitutes a basis for relief in their lawsuit. Accordingly, these contacts are not relevant to
the minimum-contacts analysis for specific jurisdiction. See Yfantis v. Balloun, 115 S.W.3d 175, 183 (Tex.
App.—Fort Worth 2003, no pet.); Shell Compania Argentina de Petroleo, S.A., 84 S.W.3d at 838–39.
In addition to contracting with Texas companies, the appellants point to several contacts Rawlinson had
with Texas during his employment with Eurosourcing. But these contacts were made at Eurosourcing’s
direction or were otherwise attenuated or fortuitous. First, appellants point out that Rawlinson was
required to travel to Texas to participate in company conferences. Rawlinson traveled to Texas two times,
totaling six days, and these two trips were the only times Rawlinson ever traveled to Texas. The appellants
presented some evidence that Rawlinson received confidential and proprietary information at the
conferences, but they do not allege that Rawlinson’s trips to Texas relate in any way to the breach-of-
contract claims against him. Further, Rawlinson did not elect to visit Texas; it is undisputed that he
attended the conferences at Eurorsourcing’s direction. Such unilateral activity is insufficient to constitute
relevant jurisdictional contacts. See Gonzalez v. AAG Las Vegas, L.L.C., 2009 WL 3490989, at *5–6;
Pelican State Physical Therapy, L.P. v. Bratton, No. 01-06-00199-CV, 2007 WL 2833303, at *9 (Tex. App.
—Houston [1st Dist.] Sept. 27, 2007, no pet.) (mem. op.). Moreover, visits to Texas that are unrelated to
the claims asserted are insufficient to establish specific jurisdiction. See Moki Mac, 221 S.W.3d at 588.
The appellants also presented evidence that Rawlinson accessed confidential and proprietary
information—via the company website and email—from company servers that happened to be located in
Texas. To support their contention that these contacts are relevant to the minimum-contacts analysis, the
appellants cite to TravelJungle v. American Airlines, Inc., 212 S.W.3d 841 (Tex. App.—Fort Worth 2006, no
pet.). But TravelJungle is inapposite. In that case, the court held that jurisdiction existed because
American’s causes of action, including trespass of server, were directed to TravelJungle’s repeated
accessing of American’s website to obtain and sell American’s fare data. Id. at 844, 849–51. TravelJungle
was the operator of a travel website that accessed American’s website—sometimes as often as 2,972
times per day—and took the information from the website to use for its own commercial advantage, in
direct violation of American’s terms of use for its website. Id. at 850. The court held that TravelJungle was
subject to the jurisdiction of Texas courts because “it purposefully directed its data-gathering activity
toward AA.com’s servers, which are located in Texas, for commercial, profit-driven purposes; thus, the
basis for jurisdiction specifically arises out of the conduct of which American complains.” Id. at 850.
In contrast, the appellants here do not allege that Rawlinson acted improperly or unlawfully when
accessing the servers from the U.K., nor does Rawlinson’s access to them form the basis for any of the
appellant’s claims against him. Further, the appellants unilaterally chose the Texas location for the
servers, and it is undisputed that Rawlinson did not know where the servers were located. Therefore,
Rawlinson could not have purposefully availed himself of the benefits of conducting business in Texas by
accessing the servers from the U.K.[5] In the absence of any allegation that Rawlinson purposefully
directed any improper activity towards their servers, Rawlinson’s business-related use of appellants’
website and email that happened to be routed through servers the appellants chose to locate in Texas is
merely fortuitous. Even if we assume that Rawlinson ultimately obtained confidential information from the
Texas-based servers and gave it to EquaTerra in breach of the various restrictive covenants with the
appellants, there is no allegation or evidence that he did so in Texas. See Gustafson, 118 S.W.3d at 484
(Michigan employee’s travel to Texas twice for management meetings was not a contact connected to
Texas employer’s breach of confidentiality agreement claim when employer did not assert that employee
breached any duties to it or committed any torts during those meetings). Indeed, Rawlinson averred in his
amended supporting affidavit that all negotiations with EquaTerra Europe relating to his current
employment took place in the U.K., and the appellants do not challenge this testimony.
Appellants also argue that Rawlinson’s employment-related contacts created “continuing relationships and
obligations” with Texas entities subjecting him to jurisdiction in Texas to face the consequences of his
activities. See Burger King, 471 U.S. at 473. For this proposition, appellants primarily rely on Burger King
and a case from this court, Lathrop v. Personalysis Corp., No. 14-06-00074-CV, 2006 WL 3072072 (Tex.
App.—Houston [14th Dist.] Oct. 31, 2006, no pet.) (mem. op.). Both cases are distinguishable.
Burger King instructs that we must look not merely to a party’s contract with the nonresident; we must also
examine the factors surrounding the contract—prior negotiations and contemplated future consequences,
the terms of the contract, and the parties’ actual course of dealing—to determine whether the nonresident
purposefully established minimum contacts within the forum. 471 U.S. at 479. In that case, Burger King
sued Rudzewicz, a franchisee, for breach of the franchise agreement’s payment provision and for
trademark infringement. Id. at 468–69. Burger King alleged that Rudzewicz failed to make required
monthly payments and continued to use the Burger King trademarks at his restaurant after the franchise
was terminated. Id. Burger King sued in Florida, the location of its headquarters, even though Rudzewicz’s
franchise was in Michigan. Id. at 466. Rudzewicz argued that he was not subject to personal jurisdiction in
Florida because his restaurant was located in Michigan and he had never even visited Florida. Id. at 469,
479. The Court concluded that “this franchise dispute grew directly out of “‘a contract which had a
substantial connection with that State.’” Id. at 479 (quoting McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223
(1957)). In reaching its conclusion, the Court noted that Rudzewicz had “[e]schew[ed] the option of
operating an independent local enterprise,” and instead deliberately “‘reached out beyond’ Michigan and
negotiated with a Florida corporation for the purchase of a long-term franchise and the manifold benefits
that would derive from affiliation with a nationwide organization.” Id. at 479–80. The Court also explained
that in light of Rudzewicz’s “voluntary acceptance of the long-term and exacting regulation of his business”
from Burger King’s Miami headquarters, the quality and nature of his relationship to the company in Florida
could in no sense be viewed as random, fortuitous, and attenuated. Id. at 480. Further, Rudzewicz’s
default on the required payments to the Florida home office and his illegal use of Burger King’s trademarks
“caused foreseeable injuries to the corporation in Florida” and therefore “it was, at the very least,
presumptively reasonable for Rudzewicz to be called to account there for such injuries.” Id.
Similarly, in Lathrop v. Personalysis Corp., Lathrop, a Washington resident, was hired by Manatech, a
Washington corporation with its principal place of business in Washington. 2006 WL 3072072, at *1.
Manatech was a licensee of Personalysis, a Texas corporation, and as such, Manatech was an authorized
distributor of the Personalysis personality test and related consulting services. Id. Lathrop often worked
directly with Personalysis, selling its tests, using its services to score the tests, and eventually signing a
license agreement governed by Texas law. 2006 WL 3072072, at *1–2. Lathrop later reverse-engineered
the test in direct violation of the license agreement and began selling it as his own product. Id. at *2.
Personalysis sued Lathrop in Texas, alleging that Lathrop used information learned during his training
sessions in Texas to reverse engineer the scoring methodology of the Personalysis test. Id. This court
concluded that Lathrop’s continuing relationship with Personalysis resembled the franchising relationship
in Burger King because the license agreement between Lathrop and Personalysis provided that it was
governed by Texas law; the agreement contemplated that Personalysis would train Lathrop to use its
system; Lathrop’s agreement with Manatech specifically called for training sessions in Houston; Lathrop
contractually agreed to follow Personalysis’s procedures, policies, standards, and materials; and
Manatech, the local licensee, monitored Lathrop’s day-to-day activities much like the local district office
that reported to Burger King in Florida. Id. at 6–8.
We conclude that the facts of the present case are substantially different from those in Burger King and
Lathrop. Here, Rawlinson was a U.K. employee of Eurosourcing, a European branch of Technology
Partners, and he was not a franchisee or licensee of Technology Partners. The record evidence shows
that, other than two required trips to Texas for company conferences and infrequent communications
initiated from Texas, Rawlinson’s employment activities occurred exclusively in the U.K. Further, Rawlinson
did not “reach out” to Texas by seeking employment in Texas; he averred that he did not solicit
employment or business in Texas and there is no contrary evidence. And, as noted above, Rawlinson’s
confidentiality agreement with Eurosourcing and Technology Partners, which is one of the agreements the
appellants allege Rawlinson breached, provided that it was governed by English law and the parties were
subject to the exclusive jurisdiction of the English courts. More importantly, there is no evidence that
Rawlinson’s employment with Eurosourcing in the U.K. contemplated a relationship with Technology
Partners in Texas akin to the continued direct oversight and compliance that Burger King and Personalysis
required of their franchisees and licensees. Examining the factors surrounding Rawlinson’s contracts with
Eurosourcing and Technology Partners, including prior negotiations and contemplated future
consequences, along with the terms of the contract and the parties’ actual course of dealing, see Burger
King, 471 U.S. at 479, we cannot conclude that Rawlinson purposefully established minimum contacts with
Texas through a continuing relationship with Technology Partners in Texas.
Moreover, as our supreme court explained in Moki Mac, there must be a substantial connection between
the alleged contacts and the operative facts of the litigation. Moki Mac, 221 S.W.3d at 585. Here, the
appellants allege that Rawlinson breached contracts containing non-compete, non-solicitation, and non-
disclosure covenants by, among other things, accepting employment with the appellants’ competitor,
contacting or soliciting business from the appellants’ clients, taking confidential and proprietary information
from the appellants, and providing such information to EquaTerra or its affiliates. On the facts before us,
the majority of the focus of any trial would be directed to Rawlinson’s alleged wrongdoing in the U.K., not
Texas. It is undisputed that Rawlinson lived and worked in the U.K., entered into his contracts with
appellants in the U.K., worked for Eurosourcing in the U.K, negotiated his employment with EquaTerra
Europe in the U.K., and now works for EquaTerra Europe in the U.K. If Rawlinson contacted the
appellants’ clients or provided the appellants’ confidential information to EquaTerra or its affiliates, there is
no evidence to suggest that he would have done so anywhere but in the U.K.
The appellants assert that minimum contacts are established by Rawlinson’s contracts with and
employment by Texas companies, his two trips to Texas for company conferences, his access to the
appellants’ servers in Texas through his use of the appellants’ website and his email account, and his
occasional communications with the appellants’ representatives outside of the U.K. But these contacts are
not substantially connected to the operative facts of a trial based on the appellants’ allegations. Although
Rawlinson may have received confidential and proprietary information at the Texas conferences or
obtained it by remotely accessing the appellants’ Texas servers, the appellants do not identify the
confidential information Rawlinson allegedly provided to EquaTerra (or its affiliates) and they do not allege
that Rawlinson gave confidential information to EquaTerra in Texas. Even assuming that Rawlinson’s
employment-related contacts were sufficient to demonstrate purposeful availment, they do not create a
substantial connection to the operative facts of the litigation. See Moki Mac, 221 S.W.3d at 585–88.
Therefore, Rawlinson lacks sufficient minimum contacts to enable a Texas court to assert personal
jurisdiction over him.
Other courts have reached the same conclusion in analogous cases. For example, in Gonzalez v. AAG
Las Vegas, L.L.C., Gonzalez was employed in Ohio at an automotive dealership when an officer of Ascent
Automotive Group, L.P., a Delaware partnership located in Houston, approached him about a management
position with an Ohio Lexus dealership. 2009 WL 3490989, at *1. Gonzalez traveled to Houston to
interview for the position, and while there he was asked to invest in two Ohio dealerships and allegedly was
offered the right to earn an ownership interest in the dealerships. Id. Gonzalez became the general
manager of one of the dealerships, and as such he reported to Texas, received his pay from Texas, and
regularly telephoned Houston to report on the status of the dealership. Id. AAG Las Vegas then hired
Gonzalez to be the general manager of a Las Vegas Lexus dealership, and Gonzalez moved from Ohio to
Las Vegas for the job. While there, he traveled to Houston to attend a general manager’s meeting. Id.
After about a year, AAG Las Vegas terminated Gonzalez and sued him for breach of the duty of loyalty,
usurpation of corporate opportunities, and a declaratory judgment that he was not entitled to an ownership
interest in the Ohio and Las Vegas dealerships. Id. at *2, 5. The trial court denied Gonzalez’s special
appearance, but the court of appeals held that the employment-related contacts the appellants asserted
lacked a sufficient connection to the litigation’s operative facts. Id. at *5. Based on the appellants’
pleadings, the court determined that the operative facts of their claims concerned Gonzalez’s acts while
general manager in Las Vegas, and that Gonzalez’s employment-related contacts with Texas were
“minimal.” Id. at *5–7. Accordingly, the court held that Gonzalez lacked sufficient minimum contacts to
support the assertion of specific jurisdiction in Texas. Id. at *8.
Likewise, in Rushmore Investment Advisors, Inc. v. Frey, the Pennsylvania employee of a Texas company
was sued in Texas for breach of an employment contract, misappropriation of trade secrets, and unfair
competition. 231 S.W.3d at 526–27. The employer, Rushmore, contended that specific jurisdiction was
proper over Frey, the former employee, because she had entered into a written employment agreement in
Texas and was employed by a Texas firm for twenty-two months. Id. at 529–30. Rushmore also
contended that Frey represented to clients and federal agencies that she worked in Texas, made trips to
Texas for work, maintained contact with clients in Texas, and signed an employment agreement providing
that Texas law would govern any disputes between the parties. Id. at 527. The court upheld the trial court’
s dismissal for lack of personal jurisdiction because “merely contracting with a Texas company does not
necessarily constitute purposeful availment for jurisdictional purposes” and because “Frey’s alleged
liability did not arise from and was not related to activity conducted within Texas,” but rather her activities in
Pennsylvania. Id. at 530.
In Pelican State Physical Therapy, L.P. v. Bratton, the court of appeals affirmed the grant of a special
appearance even though the Louisiana-based defendant entered into employment contracts with his
Texas employer that contained, among other provisions, non-compete, non-solicitation, and non-
disclosure covenants; the employee had taken many trips to Texas to attend company meetings; and he
had extensive communications with the employer’s personnel in Texas. See 2007 WL 2833303, at *4–6.
In that case, Bratton managed a physical-therapy clinic in Louisiana for his Texas employer, Pelican State.
Id. at *3. When Bratton resigned his employment and opened a competing clinic in Louisiana, Pelican
State sued him in Texas for breach of his employment contract. Id. at *4. Pelican State argued that
Bratton was subject to personal jurisdiction in Texas because Bratton’s regular business contacts and
communications with its parent company’s Houston office created continuing obligations with a Texas
resident. Id. at *7. Through these obligations, Pelican State argued, Bratton derived substantial personal
benefits and thus availed himself of the privilege of conducting business in Texas. Id. The court rejected
this argument, explaining that the status of employment and the signing and possible breach of an
employment agreement were not “continuing obligations” sufficient to establish the substantial connection
required to support the exercise of personal jurisdiction. Id. at *7–9. Further, the court concluded that
Pelican State’s allegations and the evidence showed that Pelican State’s lawsuit involved acts in Louisiana,
and thus Pelican State’s asserted Texas contacts were not substantially related to the litigation’s operative
facts. See id. at *8–9.
In another analogous case, Gustafson v. Provider HealthNet Services, Inc., the court of appeals rejected a
Texas employer’s assertion that specific jurisdiction existed over its former Michigan employee because
the employment relationship created “continuing obligations” with Texas. See 118 S.W.3d at 484. PHNS,
a Delaware company with its principal place of business in Texas, hired Gustafson, a Michigan resident, to
provide outsourcing services to a Michigan hospital. Id. at 481. PHNS later terminated Gustafson’s
employment and sued him in Texas for breach of his confidentiality agreement, misappropriation of trade
secrets and business information, and breach of fiduciary duties. Id. PHNS pointed to the following
contacts to show specific jurisdiction over Gustafson: (1) the employment relationship itself; (2) two short
visits to Texas associated with Gustafson's employment; (3) Gustafson was paid from a Texas bank; (4)
Gustafson submitted requests for reimbursement to PHNS’s Texas office and cashed checks for
reimbursement that were drawn off a Texas bank; (5) Gustafson communicated with PHNS’s employees
that were located in Texas; (6) Gustafson’s health benefits were administered from PHNS’s Texas offices;
(7) Gustafson’s health insurance was through Blue Cross Blue Shield of Texas; and (8) insurance agents
located in Texas administered Gustafson’s dental and life insurance. Id. at 483.
The Gustafson court determined that, based on the claims alleged, these contacts were not sufficient to
establish specific jurisdiction because the contacts were not “connected to Gustafson’s execution of the
confidentiality agreement, or his dissemination of confidential information, both of which occurred in
Michigan.” Id. at 484. The court went on to reject PHNS’s assertion that “continuing obligations” arising
from the employment relationship established jurisdiction. Id. The court expressly distinguished Burger
King, noting that in Burger King the contract between the franchisor and franchisee required performance
in the forum state and the agreement expressly provided that it was governed by the forum state’s law. Id.
In contrast, Gustafson had not signed an employment agreement, but he did sign a confidentiality
agreement that was executed in Michigan, made no reference to Texas, and did not require any
performance in Texas. Id. Lastly, the court recognized that a breach of the confidentiality agreement
“could cause an injury in Texas,” but concluded that “the mere fact that an injury is caused in the forum
state is insufficient to establish minimum contacts.” Id.
In an effort to identify contacts substantially connected to the litigation’s operative facts, the appellants
contend that Rawlinson failed to negate all bases of jurisdiction alleged against him because he has
provided no evidence to show that the various agreements and restrictive covenants did not require
performance in Texas. By this argument, the appellants appear to suggest that Texas has personal
jurisdiction over Rawlinson because he was contractually prohibited from competing against Technology
Partners in Texas—and apparently anywhere else in the world. Consequently, the appellants argue, the
covenants require performance in Texas and so personal jurisdiction is proper here. The appellants also
stress that Rawlinson has admitted that he breached the non-compete agreements, but we do not
consider the merits of appellants’ claims when conducting a personal-jurisdiction analysis. See Weldon-
Francke v. Fisher, 237 S.W.3d 789, 792 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
We disagree that a nonresident may be automatically subject to personal jurisdiction in any forum in which
he is prohibited from engaging in business based on a non-compete agreement, without regard to whether
he actually engaged in competitive activities in the forum or otherwise lacked minimum contacts. Further,
we conclude that an agreement not to compete in a forum is more properly viewed as an agreement to
refrain from performance in the forum rather than a contact with the forum. As one court explained:
“If the question is whether an individual’s contract with an out of state party alone can automatically
establish sufficient minimum contacts in the other party’s home forum, we believe the answer is clearly that
it cannot.” This holding must apply with particular force where the contract is one to refrain from doing an
act in Texas.
Dowdy v. Miller, 122 S.W.3d 816, 822 (Tex. App.—Amarillo 2003, no pet.) (quoting Burger King, 471 U.S.
at 478)) (emphasis added); see also Brocail, 132 S.W.3d at 564 (“‘[I]t is difficult to see how a failure to act
could meet the purposeful availment requirement needed to establish personal jurisdiction.’”) (citing
Anderson v. Bechtle, No. 01-00593-CV, 2001 WL 930205, at *2 ((Tex. App.—Houston [1st Dist.] Aug. 16,
2001, no pet.) (not designated for publication)). Therefore, we decline to adopt a position that an
employee, by agreeing to a non-compete or non-solicitation agreement, is effectively consenting to
jurisdiction as far-reaching as the scope of the agreement, which in this case is worldwide. It cannot be
enough that Rawlinson simply agreed not to compete or solicit clients in Texas. To hold otherwise would
supplant the minimum-contacts analysis and thus vitiate the due-process requirements for personal
jurisdiction
Based on the foregoing, we hold that the trial court did not err in granting Rawlinson’s special appearance
and dismissing him from the case because Rawlinson lacks the minimum contacts required for the trial
court to exercise personal jurisdiction over him. Therfore, we do not consider whether the exercise of
personal jurisdiction over him comports with traditional notions of fair play and substantial justice.
* * *
We affirm the trial court’s judgment.
/s/ Jeffrey V. Brown
Justice
Panel consists of Justices Yates, Frost, and Brown.
[1] MCP-TPI is not a party to the lawsuit below.
[2] Although it is a defendant below, EquaTerra, Inc. is not a party to this appeal. EquaTerra Europe is not a party to this
lawsuit.
[3] Here, the trial court held a hearing on Rawlinson’s special appearance, but we have no reporter’s record of the hearing.
Because neither party contends the hearing was evidentiary and the record does not indicate otherwise, we will presume
that the hearing was non-evidentiary and that the trial court considered only the evidence filed with the clerk. See Michiana
Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005).
[4] As an initial matter, Rawlinson contends that the appellants failed to plead adequate jurisdictional facts to shift the
burden to him to negate every pleaded basis for jurisdiction over him. We disagree. As discussed above, the appellants
alleged that Rawlinson entered into contracts with Texas companies calling for performance in part in Texas, and that he
breached his agreements with the appellants. The appellants also alleged that Rawlinson “has engaged in significant
activities in or related to Texas, [and] has conducted business and negotiated in Texas with Texas residents.” Liberally
construing the pleadings, we conclude that the appellants’ jurisdictional allegations were sufficient to shift the burden to
Rawlinson to negate the jurisdictional allegations. See Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (acts that may constitute
“doing business” include “contract[ing] by mail or otherwise with a Texas resident and either party is to perform the contract
in whole or in part in this state”); Huynh v. Nguyen, 180 S.W.3d 608, 619–20 (Tex. App.—Houston [14th Dist.] 2005, no pet.)
(stating plaintiff’s minimal pleading requirement is satisfied by an allegation that the nonresident defendants are doing
business in Texas).
[5] TravelJungle also contended that it could not be subject to personal jurisdiction because it did not know where American’
s servers were located, but the court rejected TravelJungle’s contention, concluding that TravelJungle purposefully directed
its activities to American’s website and so “should have been aware” that it would be subject to jurisdiction in any forum
where the website’s servers were located. See TravelJungle, 212 S.W.3d at 851. In reaching this conclusion, the court
drew an analogy to federal cases in which senders of spam emails were held to be subject to personal jurisdiction in the
forum in which their emails were received or where the servers processing those emails were located because the
senders purposefully targeted email addresses using a particular server and so assumed the risk that they would be haled
into a forum where that server is located. See id. at 850–51. In contrast, this case involves no allegations or evidence that
Rawlinson purposefully directed any improper activities toward Technology Partners’s website or servers, and the facts are
not analogous to those involving mass spam emails. Therefore, we do not similarly discount Rawlinson’s assertion that
he did not know the location of Technology Partners’s servers.