O'Quinn v. World Indus Constr ( 1998 )


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  •                      UNITED STATES COURT OF APPEALS
                                  FIFTH CIRCUIT
    
                                  _______________
    
                                    No. 95-40258
                                 Summary Calendar
                                  _______________
    
    
                      TERRY L. O'QUINN,
    
                                              Plaintiff-Appellant,
    
                      versus
    
                      WORLD INDUSTRIAL CONSTRUCTORS, INC.,
                      ET AL.,
    
                                              Defendants-Appellees.
    
    
               _______________________________________________
    
                 Appeal from the United States District Court
                       for the Eastern District of Texas
                                  (1:94 CV 179)
               _______________________________________________
                               September 19, 1995
    
    Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
    
    PER CURIAM:*
    
          Plaintiff Terry L. O'Quinn appeals the district court's order
    
    granting Defendants', World Industrial Constructors, Inc., et al.
    
    ("World"), motion to dismiss for lack of personal jurisdiction. We
    
    affirm.
    
          World, a United States Virgin Islands corporation, entered
    
    into a contract for the construction of an oil refinery in the
    
    Virgin Islands.     World then entered into a separate contract with
    
    
         *
                Local Rule 47.5.1 provides: "The publication of opinions that have
    no precedential value and merely decide particular cases on the basis of well-
    settled principles of law imposes needless expense on the public and burdens on
    the legal profession." Pursuant to that Rule, the Court has determined that this
    opinion should not be published.
    Merit      Industrial    Constructors,       Inc.   ("Merit"),   a    Louisiana
    
    corporation, to provide the labor and facilities necessary to
    
    recruit construction workers in the contiguous United States for
    
    the oil refinery job.         The World-Merit contract explicitly states
    
    that Merit does not have authority to hire, and that all hiring
    
    will be done by World in the Virgin Islands.
    
          Merit established an office in Texas City, Texas.                O'Quinn
    
    submitted an employment application to Merit's Texas office. Merit
    
    arranged for O'Quinn to travel to Merit's Louisiana offices for
    
    testing and then to World's facilities in the Virgin Islands, where
    
    he   was    hired   as   a   pipefitter.      Shortly    thereafter,   O'Quinn
    
    sustained a back injury in the course of his employment.
    
          O'Quinn filed a negligence action against World and Merit in
    
    the United States District Court for the Eastern District of Texas.
    
    World and Merit filed alternative motions either to transfer venue
    
    or to dismiss for lack of personal jurisdiction.                 The district
    
    court granted World's motion to dismiss for lack of personal
    
    jurisdiction.        The     court   then    granted    O'Quinn's    motion   to
    
    voluntarily dismiss the claims against Merit.               O'Quinn appeals,
    
    contending that the district court improperly granted World's
    
    motion to dismiss for lack of personal jurisdiction.1
    
    
    
    
        1
                We review the district court's determination of personal jurisdiction
    over nonresident defendants de novo. Command-Aire v. Ontario Mechanical Sales
    & Serv., Inc., 
    963 F.2d 90
    , 93 (5th Cir. 1992). Disputed material facts must be
    construed in the light most favorable to the plaintiff. Bullion v. Gillespie,
    
    895 F.2d 213
    , 216 (5th Cir. 1990).
    
    
                                           -2-
           A nonresident defendant is subject to personal jurisdiction in
    
    a federal diversity suit to the extent that the law of the forum
    
    state and constitutional due process considerations allow. Bullion
    
    v. Gillespie, 
    895 F.2d 213
    , 215 (5th Cir. 1990).              Both sides agree
    
    that Texas law applies to the jurisdictional inquiry in this case.
    
    Consequently, the personal jurisdiction of the district court
    
    depends on the scope of the Texas long-arm statute.2                Texas courts
    
    have interpreted the Texas long-arm statute to extend to the limits
    
    of due process.       Bearry v. Beech Aircraft Corp., 
    818 F.2d 370
    , 372
    
    (5th Cir. 1987); U-Anchor Advertising, Inc. v. Burt, 
    553 S.W.2d 760
    , 762 (Tex. 1977), cert. denied, 
    434 U.S. 1063
    , 
    98 S. Ct. 1235
    ,
    
    
    55 L. Ed. 763
       (1978).      Thus,   personal    jurisdiction        over   a
    
    nonresident      defendant     under   Texas    law   is     determined    by    a
    
    constitutional due process analysis.           Bearry, 818 F.2d at 373.
    
           Due process requires that federal courts assert personal
    
    jurisdiction over nonresident defendants only in cases in which
    
    (1) the defendant has purposefully established minimum contacts
    
    with the forum state, and (2) jurisdiction over the defendant does
    
    not   offend    traditional     notions   of   fair   play    and   substantial
    
    justice.      Asahi Metal Indus. Co. v. Superior Court, 
    480 U.S. 102
    ,
    
    112-113, 
    107 S. Ct. 1026
    , 1032-33, 
    94 L. Ed. 92
     (1987).                  Personal
    
    jurisdiction based on a minimum contacts analysis may be either
    
    general or specific.       Dalton v. R & W Marine, Inc., 
    897 F.2d 1359
    ,
    
    1361-62 (5th Cir. 1990).            In this case, O'Quinn alleges only
    
    specific personal jurisdiction.
    
           
    2 Tex. Civ
    . Prac. & Rem. Code Ann. §§ 17.041-17.045 (West 1986).
    
                                           -3-
          Specific jurisdiction is a two-prong inquiry.                   First, the
    
    defendant must have purposefully availed himself of the forum
    
    state, thereby seeking the benefits and protections of the laws of
    
    the state.      Bullion, 895 F.2d at 216.            Second, the plaintiff's
    
    cause of action must arise out of the defendant's contacts with the
    
    forum state.      Dalton, 897 F.2d at 1361.
    
          Seeking to establish the purposeful availment prong of the
    
    specific jurisdiction inquiry, O'Quinn first contends that personal
    
    jurisdiction over World is proper in Texas because a principal-
    
    agent relationship existed between World and Merit when Merit
    
    established recruiting offices and performed recruiting services in
    
    Texas. According to well-established law, a defendant may be found
    
    subject to personal jurisdiction as a result of the actions of an
    
    agent.    Davis v. Asano Bussan Co., 
    212 F.2d 558
    , 563 (5th Cir.
    
    1954); Sher v. Johnson, 
    911 F.2d 1357
    , 1362 (9th Cir. 1990).                 Under
    
    Texas law, in order for a principal-agent relationship to be
    
    established, the principal must have the right to control both the
    
    means    and    the   details    of     the    process   by   which   the    agent
    
    accomplishes the actions at issue.3            First Nat'l Bank of Fort Worth
    
    v. Bullock, 
    584 S.W.2d 548
    , 551-52 (Tex.App.--Dallas 1979, writ
    
    ref'd n.r.e.).
    
          Although the World-Merit contract specifies that Merit is to
    
    provide   the    labor   and    local    facilities      necessary    to   process
    
    
    
          3
                Under Texas law, agency is a mixed question of law and fact, freely
    reviewable on appeal to the extent that the facts underlying the agency question
    are undisputed. American International Trading Corp. v. Petroles Mexicanos, 
    835 F.2d 536
    , 539 (5th Cir. 1987).
    
                                             -4-
    applications, World simply does not have contractual authority to
    
    determine where such facilities are to be located.                         When Merit
    
    established its office in Texas City, Merit purposefully availed
    
    itself of the laws and protections of Texas.                   However, World did
    
    not have sufficient control over the means or details of Merit's
    
    actions to establish an agency relationship. See Matter of Carolin
    
    Paxson Advertising,            Inc.,   
    938 F.2d 595
    ,   598    (5th    Cir.   1991)
    
    (finding      no   agency      relationship     between     advertising      firm   and
    
    television station because of inadequate showing of right to
    
    control).      Thus, we find that Merit was not acting as an agent of
    
    World while it operated its local office and conducted recruiting
    
    services in Texas.            Consequently, O'Quinn has not established the
    
    contacts necessary to a finding of specific jurisdiction based on
    
    agency theory.
    
          In the alternative, O'Quinn argues that even if Merit was
    
    acting   only      as    an   independent     contractor      of   World,    personal
    
    jurisdiction over World was proper in Texas because O'Quinn's cause
    
    of action arose out of Merit's activities in Texas.                       However, the
    
    actions of an independent contractor in a forum state are not
    
    sufficient,        absent     other    contacts,     to    subject    a   nonresident
    
    corporation to personal jurisdiction.                     Smith v. Piper Aircraft
    
    Corp., 
    425 F.2d 823
    , 826 (5th Cir. 1970); see also Bearry, 818 F.2d
    
    at   375-76    (holding        manufacturer's       maintenance      of   distribution
    
    network in the forum insufficient to support finding of general
    
    jurisdiction).          O'Quinn does not allege any other contacts between
    
    World and Texas.           Thus, O'Quinn has not established that World,
    
    
                                              -5-
    either directly or through an agent, purposely availed itself of
    
    the benefits and protections of Texas.              On this record, we hold
    
    that O'Quinn has failed to establish specific personal jurisdiction
    
    over World.4
    
            Accordingly,   we   AFFIRM   the    order   of   the   district   court
    
    granting World's motion to dismiss for lack of jurisdiction.
    
    
    
    
        4
                Since we do not find that there are sufficient contacts between World
    and Texas to establish personal jurisdiction, we do not reach the separate
    specific jurisdictional requirement that O'Quinn's cause of action arise out of
    World's contacts with Texas. Nor do we reach the separate due process question
    of whether the exercise of jurisdiction by a Texas court over World would comport
    with traditional notions of fair play and substantial justice.
    
    
                                          -6-