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T.C. STONE,  
Plaintiff, 

v.                                                                                       No. 92-

DIANA KILMURY,  
Defendant. 

This action was commenced when plaintiff filed his complaint in the District Court of Kaufman County, Texas, on March 23, 1992. Along with a notice of deposition scheduled for April 28, 1992, the complaint was delivered on April 20 to the Texas Secretary of State for service on the defendant, who resides in Canada. It reached defendant's residence on April 27, and because she was away from home for that entire week, it was forwarded to her and reached her on April 29, 1992. On this date, the action was removed to this Court based on diversity of citizenship, and defendant now moves to dismiss this action for failure to allege sufficient facts to show that the Court has personal jurisdiction.

If the case is refiled in a proper jurisdiction, defendant will stoutly deny all allegations of the complaint except the residence of the parties, but we recognize that, for the purpose of this motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure, the Court is obligated to take the allegations as true and to construe them favorably to the plaintiff. Conley v. Gibson, 355 U.S. 41 (1957). Simply stated, the complaint alleges that defendant published a document, which is attached to the complaint as Exhibit A, and further alleges that the document is libelous and that it has injured plaintiff's reputation. The complaint does not specifically allege that injury was inflicted on plaintiff's reputation in any particular location, although it does allege that plaintiff previously "enjoyed a good reputation in this community." We assume that the Court will construe this awkwardly worded allegation to allege injury to reputation within this District (although if plaintiff does not intend so allege, we are confident that his counsel will, consistent with Rule 11, so inform the Court). What the complaint does not do, however, is allege publication in Texas, and for that defect, the action must be dismissed on both statutory and constitutional grounds.⁽¹⁾

We assume that the statute on which plaintiff will rely to support jurisdiction is Section 17.042(2) of the Civil Practice and Remedies Code, which authorizes the exercise of personal jurisdiction of a nonresident who "commits a tort in whole or in part in this state." "Under the 'commission of a tort' provisions of a long-arm statute, the jurisdictional requirements are met when the defendant, personally or through an agent, is the author of an act or omission within the forum state, and the petition states a cause of action in tort arising from such conduct." Arterbury v. American Bank & Trust Co., 553 S.W.2d 943 (Tex. App. 1977). See also Product Promotions v. Cousteau, 495 F.2d 483, 491 (5th Cir. 1974) (where plaintiffs "relied on the commission of a tort to establish the court's personal jurisdiction over the defendant, they were obliged to make a prima facie showing that a tort had occurred in whole or in part in Texas"). But there is no allegation that defendant Kilmury, or any agent of Kilmury, did anything at all in this state.

It is true that some courts have applied § 17.042(2) to allow suits for torts committed outside Texas that cause injuries inside Texas, but those cases generally involve nonresident defendants whose actions are directly linked to those of other wrongdoers, whose tortious conduct is directly linked to the state. In some libel cases, for example, a nonresident has been sued for an out-of-state publication of a libel, when the publisher had the expectation that the libelous material will be sent by others, such as a magazine or newspaper or catalogue publisher, into Texas. E.g., Jetco Electronic Ind. v. Gardiner, 473 F.2d 1228, 1233 (5th Cir. 1973); McBride v. Owens, 454 F. Supp. 731 (S.D. Tex. 1978). We know of no case in which the Texas long-arm statute has been extended to an alleged libel without both publication in Texas and a reasonable expectation on the part of the defendant that the libel would be published there. As we explain below, due process requires no less. And, indeed, in Wyatt v. Kaplan, 686 F.2d 276, 282 (5th Cir. 1982), the Court of Appeals refused to allow the assertion of jurisdiction under the Texas long-arm statute where the plaintiff had failed to allege and prove a non-privileged publication in Texas.

Here, plaintiff has alleged neither of the two key elements --a publication in Texas, nor a reasonable expectation on the part of Kilmury that a libel would be published there -- that he needs to establish the right to drag Kilmury into court in Texas, thousands of miles from her home in Vancouver, Canada. And Texas decisions make clear that, in order to confer jurisdiction on the Court, plaintiff was required to "allege[] all of the jurisdictional facts set out in the statute." Freight Terminals v. Ryder System, 461 F.2d 1046, 1052 (5th Cir. 1972); Steve Tyrell Prod. v. Ray, 674 S.W.2d 430, 433-434 (Tex. App. 1984). For this reason alone, the complaint should be dismissed for lack of personal jurisdiction.

But even if jurisdiction were shown under the long-arm statute, due process prevents defendant from being required to defend this action in Texas, because defendant has not been shown to have the requisite minimum contacts with Texas. In order to establish personal jurisdiction over defendant, plaintiff must show that the causes of action "arise out of, and are related to, defendant's activities within Texas." Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408 (1984). These actions, which must be related to the alleged tort, must have been sufficient to "create a 'substantial connection' with the forum state." Burger King Corp. v. Rudziewicz, 471 U.S. 462, 475 (1985), quoting McGee v. International Life Ins. Corp., 355 U.S. 220, 223 (1957). And even if the wrong arose out of defendant's contacts with the state of Texas, plaintiff must also show that the contacts that defendant established with the forum state are not so transient or minimal as to lack a real or substantial basis. See Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 111-113 (1987). Although the Supreme Court of the United States divided on the question in Asahi Metal, the Texas Supreme Court has embraced the proposition that the nonresident defendant's conduct must have been "purposely directed toward Texas." Guardian Royal Exch. Assur. v. English China Clays, 815 S.W.2d 223, 230 (1991), quoted in Jones v. Petty-Ray Geophysical Geosource, 954 F.2d 1061, 1068 n.9 (5th Cir. 1992). No such allegations have been made here.

First, the complaint concedes that Kilmury does not reside in Texas, and does not allege that she did any of the acts alleged in the complaint in Texas; indeed, if the case were to go beyond the complaint, defendant would show that she has never even been to Texas. Nor does the complaint allege that there has been any publication in Texas, not to speak of alleging that defendant has been responsible for some such publication. Thus, this case stands in contrast to cases where the courts have suggested that the author or publisher of a magazine or newspaper article could be sued for libel in a distant state if they knew that the magazine had a substantial circulation in the forum state. Compare Keeton v. Hustler Magazine, 465 U.S. 770 (1984) (jurisdiction of magazine allowed where magazine regularly sells 10,000 to 15,000 copies in forum state each month; issue of jurisdiction of author to be resolved on remand), and Stabler v. New York Times Co., 569 F. Supp. 1131 (S.D. Tex. 1983) (jurisdiction where newspaper both sold 6725 copies of edition containing alleged libel in forum state and maintained news bureau there); with New York Times Co. v. Connor, 365 F.2d 567, 570 (5th Cir. 1966) (no jurisdiction where newspaper sells less than 400 copies per day in forum state, and 2400 copies every Sunday); Buckley v. New York Times Co., 338 F.2d 470, 475 (5th Cir. 1964) (no jurisdiction in state with comparable circulation figures); McBride v. Owens, 454 F. Supp. 731 (S.D. Tex. 1978). Here there is no allegation that Kilmury intentionally directed the fund-raising letter in question at any substantial audience in Texas, and accordingly the complaint fails to allege sufficient contacts to permit this Court's exercise of jurisdiction.

The action should be dismissed for lack of personal jurisdiction.

Respectfully submitted,
 
 

Paul Alan Levy (DC Bar No. 946400)

Alan B. Morrison (DC Bar No. 073114)

Public Citizen Litigation Group
 
 
 
 

Steven B. Thorpe

Crews, Thorpe & Hatcher
 

Attorneys for Diana Kilmury

May 8, 1992

1. Although the document was published when plaintiff filed it in court and delivered it to the Secretary of State, defendant may not be held liable for such self-publication. Lyle v. Waddle, 144 Tex. 90, 94, 188 S.W.2d 770 (1945).

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