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American Type Culture Collection5/18/2000
American Type Culture Collection, Inc. ("ATCC") takes this interlocutory appeal from an order denying its special appearance. See Tex. Civ. Prac. & Rem. Code Ann. ยง 51.014(a)(7) (Vernon Supp. 2000). We consider whether a mail-order company that does not advertise locally in, has no physical presence in, and performs all services outside Texas may nonetheless be subject to general personal jurisdiction in Texas when, among other things, Texas is its sixth largest market in the United States. Concluding it can under the evidence presented, we affirm.
I. Factual and Procedural Background
Appellees are veterans of the 1991 Persian Gulf War and some of their family members. Of the nearly 1800 plaintiffs in this case, about 185 live in Texas. Appellees allege ATCC, one of over 80 defendants, sold Iraq dangerous pathogens that were later used in weapons against the appellees who served in that war.
In June 1994, appellees sued the defendants in Brazoria County, Texas on theories of negligence and product liability. ATCC made a special appearance. The defendants removed the case to federal court, where ATCC moved to dismiss for lack of personal jurisdiction, but Judge Kent dismissed the entire case for lack of subject-matter jurisdiction. Coleman v. Alcolac et al., No. G-94-415, slip op. at 31 (S. D. Tex. June 6, 1995) (order granting motion to dismiss for lack of subject-matter jurisdiction and remanding cause to state court).
On remand, ATCC again urged its special appearance. In December 1998, the trial judge denied ATCC's special appearance without filing fact findings or legal conclusions. ATCC appeals, arguing in four points of error that the trial judge erred.
II. Standard of Review and Burden of Proof
The burden of proof was on ATCC to negate all possible grounds for personal jurisdiction. Garner v. Furmanite Australia Pty., Ltd., 966 S.W.2d 798, 802 (Tex. App.-Houston [1st Dist.] 1998, pet. denied). Existence of personal jurisdiction is a question of law, but that determination must sometimes be preceded by the resolution of underlying factual disputes. James v. Illinois Cent. R.R. Co., 965 S.W.2d 594, 596 (Tex. App.-Houston [1st Dist.] 1998, no pet.). When, as here, the trial judge files no fact findings, we presume all factual disputes were resolved to support the judge's order. Garner, 966 S.W.2d at 802. While we generally review for factual sufficiency, we review de novo if the underlying facts are undisputed or otherwise established. C-Loc Retention Sys., Inc. v. Hendrix, 993 S.W.2d 473, 476 (Tex. App.-Houston [14th Dist.] 1999, no pet.). Many of the facts here are undisputed, although the parties place greatly different significance on them.
III. Jurisdictional Test
A court may assert personal jurisdiction over a nonresident defendant only if the requirements of both the Fourteenth Amendment's due process clause and the Texas long-arm statute are satisfied. CSR, Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996) (orig. proceeding). Because the Texas long-arm statute reaches "as far as the federal constitutional requirements of due process will allow," the statute is satisfied if the exercise of personal jurisdiction comports with federal due process. Id.
Federal due process requirements are two-fold. First, the nonresident defendant must have purposefully established such minimum contacts with the forum that it could reasonably anticipate being sued there. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475; 105 S. Ct. 2174, 2183 (1985). If the nonresident defendant has purposefully availed itself of the privileges and benefits of conducting business in a state, it has sufficient
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