Moncrief Oil International, Inc. v. Oao Gazprom, Gazprom Export, LLC, and Gazprom Marketing & Trading, Ltd.

IN THE SUPREME COURT OF TEXAS
444444444444
NO . 11-0195
444444444444
MONCRIEF OIL INTERNATIONAL INC., PETITIONER,
v.
OAO GAZPROM, GAZPROM EXPORT, LLC, AND GAZPROM MARKETING &
TRADING, LTD., RESPONDENTS
4444444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS
4444444444444444444444444444444444444444444444444444
Argued February 6, 2012
JUSTICE GUZMAN delivered the opinion of the Court.
CHIEF JUSTICE JEFFERSON did not participate in the decision.
We have observed that the business contacts needed for specific personal jurisdiction over
a nonresident defendant “are generally a matter of physical fact, while tort liability (especially
misrepresentation cases) turns on what the parties thought, said, or intended. Far better that judges
should limit their jurisdictional decisions to the former rather than involving themselves in trying
the latter.”1 Here, nonresident defendants allegedly committed the tort of misappropriating purported
trade secrets from a Texas company concerning a proposed Texas venture during two meetings in
1
Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 791 (Tex. 2005).
Texas. The defendants claim their intent in attending the meetings was to discuss an unrelated
matter and that they informed the plaintiff of that intent at the meetings. But what the parties
thought, said, or intended is generally irrelevant to their jurisdictional contacts. Regardless of the
defendants’ subjective intent, their Texas contacts are sufficient to confer specific jurisdiction over
the defendants as to the trade secrets claim.
The nonresident defendants also face claims of tortious interference with the Texas
corporation’s relationship with a California corporation. But the tortious interference claims either
arise from a meeting in California (which cannot support jurisdiction in Texas) or the formation of
a competing enterprise in Texas by an entity not subject to jurisdiction in this proceeding. The trial
court granted the special appearance, which the court of appeals affirmed. Because we hold there
is jurisdiction over the trade secrets claim, but not over the tortious interference claims, we reverse
in part and affirm in part the court of appeals’ judgment and remand to the trial court for further
proceedings.
I. Background
Moncrief Oil International, Inc. (Moncrief) is a Texas-based company that entered into a
series of contracts in 1997 and 1998 with two subsidiaries of OAO Gazprom (Gazprom) regarding
development of a Russian gas field known as the Y-R Field. Moncrief Oil Int’l Inc. v. OAO
Gazprom, 481 F.3d 309, 310 (5th Cir. 2007). Gazprom, a Russian company, is among the world’s
largest producers of natural gas. After assuring Moncrief it would honor the contractual obligations
of its subsidiaries, Gazprom later contracted with German entities to develop the Y-R Field.
Moncrief, 481 F.3d at 311.
2
In the fall of 2003, Gazprom announced its intention to sell liquified natural gas to the United
States and contacted oil companies in the American market. When Moncrief asked Gazprom to
recognize its claimed interest or sell it an interest in the Y-R Field, Gazprom replied that it was
interested only in trading its resources for access to the American downstream market. Along those
lines, Moncrief had developed alleged trade secret information regarding a proposed joint venture
with California-based Occidental Petroleum Corporation to import liquified natural gas to a
regasification facility to be built in Ingleside, Texas.
Moncrief and Gazprom engaged in a series of communications (including phone calls,
emails, and in-person meetings) to discuss Moncrief’s rights in the Y-R Field and the establishment
of a consortium with Moncrief, Occidental, and Gazprom to import liquified natural gas to Texas.
Gazprom Export, LLC (Gazprom Export)—the Gazprom subsidiary that exports natural gas to
countries outside the former Soviet Union—also took part in the discussions.
These discussions began with a meeting in Moscow in September 2004, where Moncrief
proposed that: (1) Gazprom would grant Moncrief an interest in the Y-R Field; (2) Moncrief would
grant Gazprom an interest in the proposed Texas regasification facility; and (3) Moncrief would
grant Occidental a share of its interest in the Y-R Field. At the meeting, Moncrief provided
Gazprom alleged trade secrets concerning the Texas facility and marketing plan. Later that month,
Moncrief and Gazprom met in Washington, D.C., where Moncrief again provided Gazprom the
alleged trade secrets. The parties then exchanged a series of emails and phone calls regarding the
proposal.
3
In February 2005, Gazprom informed Moncrief it would not accept Moncrief’s proposal. In
June 2005, Moncrief sued Gazprom and the two subsidiaries it dealt with regarding the Y-R Field
in federal court in Texas over its interest in the Y-R Field. Moncrief, 481 F.3d at 311. Ultimately,
the Fifth Circuit Court of Appeals affirmed the dismissal of Gazprom due to lack of personal
jurisdiction but noted that “even without other contacts, jurisdiction would exist if Gazprom
committed a tort while in the state.” Id. at 314–15.
In late 2005, the parties resumed in-person discussions, with meetings in Houston, Boston,
and Fort Worth, where Moncrief provided updated versions of the alleged trade secrets to Gazprom.
Gazprom representatives later met directly with Occidental representatives in California, and
Occidental terminated the proposed venture with Moncrief after Gazprom refused to participate in
the venture. A subsidiary of Gazprom Export (Gazprom Marketing & Trading, Ltd.) then established
Gazprom Marketing & Trading USA, Inc. (GMT USA) in Houston to import Gazprom’s liquified
natural gas, regasify it, and sell it in the Unites States.
Moncrief sued Gazprom, Gazprom Export, and GMT USA in state court for tortious
interference, trade-secret misappropriation, conspiracy to tortiously interfere, and conspiracy to
misappropriate trade secrets. Gazprom and Gazprom Export (collectively the Gazprom Defendants)
specially appeared, asserting that their contacts with Texas were random, not purposeful, and that
Moncrief unilaterally disclosed the trade secrets. After a special appearance hearing with no live
testimony, the trial court granted the Gazprom Defendants’ special appearances. Findings of fact
and conclusions of law were not requested or filed.
4
The court of appeals affirmed, holding that legally and factually sufficient evidence supported
an implied finding that the location of the two Texas meetings was “merely random or fortuitous”
as to Moncrief’s trade secrets claim. 332 S.W.3d 1, 19–20. As to the tortious interference claims,
the court held that the record conclusively established that any alleged tortious interference that
might have occurred took place in California. Id. at 13–14. The court of appeals further held that
the trial court did not abuse its discretion in refusing to allow Moncrief additional depositions.2 Id.
at 22–23.3
II. Discussion
A. Standard of Review
Texas courts may exercise personal jurisdiction over a nonresident if “(1) the Texas long-arm
statute authorizes the exercise of jurisdiction, and (2) the exercise of jurisdiction is consistent with
federal and state constitutional due-process guarantees.” Moki Mac River Expeditions v. Drugg, 221
S.W.3d 569, 574 (Tex. 2007). Under the Texas long-arm statute, the plaintiff bears the initial burden
of pleading allegations sufficient to confer jurisdiction. Retamco Operating, Inc. v. Republic
Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009). The long-arm statute allows the exercise of personal
2
Moncrief also sued Gazprom Marketing & Trading, Ltd. and Gazprom Bank. Gazprom
Bank was allegedly part of Gazprom’s meeting with Occidental in California. The trial court granted
its special appearance, and the court of appeals granted Moncrief’s motion to dismiss Gazprom
Bank. 332 S.W.3d at 5, n.1. Further, the court of appeals held that there was no jurisdiction over
Gazprom Marketing & Trading, Ltd.—which Moncrief does not complain of here. Id. at 20–22.
3
The Texas Civil Justice League, the Texas Oil & Gas Association, the Texas Association
of Manufacturers, the Association of Electric Companies of Texas, and the Texas Association of
Business collectively submitted an amicus curiae brief in support of Moncrief.
5
jurisdiction over a nonresident defendant who “commits a tort in whole or in part in this state.” TEX .
CIV . PRAC. & REM . CODE § 17.042(2). Although allegations that a tort was committed in Texas
satisfy our long-arm statute, such allegations do not necessarily satisfy the U.S. Constitution.
Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 788 (Tex. 2005). Here, Moncrief
pled that the Gazprom Defendants committed torts in Texas by misappropriating Moncrief’s alleged
trade secrets at Texas meetings. Thus, Moncrief has met its initial burden of alleging a cause of
action sufficient to confer jurisdiction under the long-arm statute. See TEX . CIV . PRAC. & REM .
CODE § 17.042(2).
When the initial burden is met, the burden shifts to the defendant to negate all potential bases
for personal jurisdiction the plaintiff pled. Retamco, 278 S.W.3d at 337. As Moncrief’s sole
allegation as to personal jurisdiction is that the Gazprom Defendants committed torts in Texas, the
Gazprom Defendants must negate that basis. In response, the Gazprom Defendants argue that
exercising jurisdiction over them would violate due process. Asserting personal jurisdiction
comports with due process when (1) the nonresident defendant has minimum contacts with the forum
state, and (2) asserting jurisdiction complies with traditional notions of fair play and substantial
justice. Id. at 338. A defendant establishes minimum contacts with a forum when it “purposefully
avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits
and protections of its laws.” Id. (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)).
A nonresident’s contacts can give rise to general or specific personal jurisdiction. Id.
Continuous and systematic contacts with a state give rise to general jurisdiction, while specific
jurisdiction exists when the cause of action arises from or is related to purposeful activities in the
6
state. Id. Here, Moncrief’s asserted basis is specific jurisdiction, which focuses on the relationship
between the defendant, Texas, and the litigation to determine whether the claim arises from the
Texas contacts. See id.
When, as here, the trial court does not issue findings of fact and conclusions of law, we imply
all relevant facts necessary to support the judgment that are supported by evidence.4 Id. at 337
(quoting BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002)). The ultimate
question of whether a court has personal jurisdiction over a nonresident defendant is a question of
law we review de novo. Moki Mac, 221 S.W.3d at 574.
As an initial matter, specific jurisdiction requires us to analyze jurisdictional contacts on a
claim-by-claim basis. See, e.g., Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 660 (Tex.
2010) (separately analyzing jurisdictional contacts for fraud and trust fund claims to determine
specific jurisdiction). The Fifth Circuit has expressly held that a “plaintiff bringing multiple claims
that arise out of different forum contacts of the defendant must establish specific jurisdiction for each
claim.” Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 275 (5th Cir. 2006). As the Court
explained,
4
Moncrief’s briefing asserts that an appellate court should review a trial court’s implied
findings on a special appearance de novo when there is no live testimony. But we need not address
this issue because the relevant facts are undisputed. As to the trade secrets claim, the Gazprom
Defendants’ contacts with Texas are sufficient to support specific jurisdiction under our existing
framework for reviewing special appearance rulings. See infra Part II.B. And as to the tortious
interference claims, we agree with the courts below that the claims do not arise from or relate to
Texas contacts—a question of law unaffected by the operation of implied findings of relevant fact
necessary to support the special appearance ruling. See infra Part II.C; see also Moki Mac, 221
S.W.3d at 588–89.
7
This result flows logically from the distinction between general and specific
jurisdiction and is confirmed by the decisions of our sister circuits. If a defendant
does not have enough contacts to justify the exercise of general jurisdiction, the Due
Process Clause prohibits the exercise of jurisdiction over any claim that does not
arise out of or result from the defendant’s forum contacts.
Id. at 274–75.5 Of course, a court need not assess contacts on a claim-by-claim basis if all claims
arise from the same forum contacts.6 Because we determine that the tortious interference claims
arise from separate jurisdictional contacts than the trade secrets claim, we analyze those contacts
separately.
B. Trade Secrets Claim
1. Minimum Contacts
The parties primarily dispute whether Gazprom’s Texas contacts relating to the trade secrets
claim were purposeful. The Gazprom Defendants assert that any contacts with Texas were not
purposeful because Moncrief unilaterally disclosed the alleged trade secrets and the meetings in
Texas were simply fortuitous—as evidenced by meetings held in Moscow, Boston, and Washington,
D.C. The Gazprom Defendants assert they informed Moncrief at the meetings that they would only
discuss the potential venture once Moncrief dismissed the lawsuit regarding the Y-R Field. Moncrief
contends the disclosure was not unilateral because: (1) the purpose of discussions was to settle the
5
See also Touradji v. Beach Capital P’ship, 316 S.W.3d 15, 25–26 (Tex. App.—Houston
[1st Dist.] 2010, no pet.); Barnhill v. Automated Shrimp Corp., 222 S.W.3d 756, 766–67 (Tex.
App.—Waco 2007, no pet.); Remick v. Manfredy, 238 F.3d 248, 255–56 (3d Cir. 2001); Phillips
Exeter Acad. v. Howard Phillips Fund, Inc., 196 F.3d 284, 289 (1st Cir. 1999).
6
See, e.g., Touradji, 316 S.W.3d at 26; Sutton v. Advanced Aquaculture Sys., Inc., 621
F. Supp. 2d 435, 442 (W.D. Tex. 2007).
8
dispute relating to the Y-R Field in exchange for Gazprom’s participation in the venture, and (2) the
Texas meetings were not fortuitous because they were located in the state where Moncrief is
headquartered and where the proposed regasification facility would be located. We agree with
Moncrief that the contacts were purposeful but for different reasons.
When determining whether a nonresident purposefully availed itself of the privilege of
conducting activities in Texas, we consider three factors:
First, only the defendant’s contacts with the forum are relevant, not the unilateral
activity of another party or a third person. Second, the contacts relied upon must be
purposeful rather than random, fortuitous, or attenuated. Thus, sellers who reach out
beyond one state and create continuing relationships and obligations with citizens of
another state are subject to the jurisdiction of the latter in suits based on their
activities. Finally, the defendant must seek some benefit, advantage or profit by
availing itself of the jurisdiction.
Retamco, 278 S.W.3d at 338–39; see Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473, 475
(1985); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). This analysis
assesses the quality and nature of the contacts, not the quantity. Retamco, 278 S.W.3d at 339.
The United States Supreme Court has specified that a nonresident’s contacts are not unilateral
or random and fortuitous when the defendant “has created ‘continuing obligations’ between himself
and residents of the forum,” which shields the nonresident with the benefits and protections of the
forum’s laws. Burger King, 471 U.S. at 475 (quoting Travelers Health Ass’n v. Virginia, 339 U.S.
643, 648 (1950)). Further, the Court has stated that jurisdiction is proper “where the contacts
proximately result from actions by the defendant himself that create a substantial connection with
the forum State.” Id. (quotation marks omitted). A substantial connection can result from even a
single act. McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223 (1957). But the unilateral activity of
9
another person cannot create jurisdiction. Burger King, 471 U.S. at 475. Physical presence in the
state is not required but “frequently will enhance a potential defendant’s affiliation with a State and
reinforce the reasonable foreseeability of suit there.” Id. at 476. At its core, the purposeful
availment analysis seeks to determine whether a nonresident’s conduct and connection to a forum
are such that it could reasonably anticipate being haled into court there. Id. at 474.
The Court has also recognized “it is beyond dispute that [a forum] has a significant interest
in redressing injuries that actually occur within the State.” Keeton v. Hustler Magazine, Inc., 465
U.S. 770, 776 (1984). As the Court has expounded:
A state has an especial interest in exercising judicial jurisdiction over those who
commit torts within its territory. This is because torts involve wrongful conduct
which a state seeks to deter, and against which it attempts to afford protection, by
providing that a tortfeasor shall be liable for damages which are the proximate result
of his tort.
Id. (quoting Leeper v. Leeper, 319 A.2d 626, 629 (N.H. 1974); RESTATEMENT (SECOND ) OF
CONFLICTS OF LAWS § 36, cmt. c (1971)).7 Of course, states have an interest in protecting against
more than torts, and the Supreme Court has recognized state interests in protecting regulatory
schemes and contracts as well. See Travelers Health Ass’n, 339 U.S. at 648 (recognizing the “state’s
interest in faithful observance” of its regulatory scheme by nonresidents); McGee, 355 U.S. at 223
(observing that the forum “has a manifest interest in providing effective means of redress for its
residents” in relation to contract disputes).
7
The Restatement provides that “[a] state has power to exercise judicial jurisdiction over an
individual who has done, or has caused to be done, an act in the state with respect to any cause of
action in tort arising from the act.” RESTATEMENT (SECOND ) OF CONFLICTS OF LAWS § 36 (1971).
10
Although a forum’s interest in protecting against torts may operate to enhance the
substantiality of the connection between the defendant and the forum, it cannot displace the
purposeful availment inquiry. We have previously observed that Texas’s interest in protecting its
citizens against torts is insufficient to automatically exercise personal jurisdiction upon an allegation
that a nonresident directed a tort from outside the forum against a resident. Michiana, 168 S.W.3d
at 790–91. In Michiana, a Texan placed a phone call to an Indiana recreational vehicle dealer, paid
for the vehicle in Indiana, and arranged to have the vehicle shipped from Indiana to Texas. Id. at
784. He later sued the dealer in Texas, claiming a misrepresentation in the phone call from Texas
subjected the dealer to specific personal jurisdiction in Texas court. Id. We held that, although the
dealer allegedly committed a tort against a resident, its contacts with Texas were only receiving the
phone call and transferring the vehicle to the shipper the buyer had designated to transport the
vehicle to Texas. Id. at 786–87. Neither contact constituted purposeful availment because the dealer
“had no say in the matter.”8 Id. at 787.
Michiana overruled a myriad of court of appeals cases where jurisdiction was predicated
solely on the receipt of an out-of-state phone call or that analyzed whether the defendant’s contacts
were tortious rather than examining the contacts themselves. Id. at 791–92. But, importantly, we
differentiated cases where the defendant’s conduct “was much more extensive and was aimed at
getting extensive business in or from the forum state.” Id. at 789–90 & n.70. We cited as an
8
See also CMMC v. Salinas, 929 S.W.2d 435, 439 (Tex. 1996) (a French winepress maker
shipping a winepress to a Texas customer was insufficient to constitute purposeful availment).
11
example a case predicating jurisdiction on acts seeking to obtain business in Texas. Id. at 790 n.70
(citing Union Carbide Corp. v. UGI Corp., 731 F.2d 1186, 1189-90 (5th Cir. 1984)).
Here, the Gazprom Defendants’ contacts with Texas were neither unilateral activities by
Moncrief nor random and fortuitous. Unlike in Michiana, the Gazprom Defendants had a “say in
the matter.” 168 S.W.3d at 787. They were not unilaterally haled into forming contacts with Texas;
rather, they agreed to attend Texas meetings.9 And the Gazprom Defendants accepted Moncrief’s
alleged trade secrets at those meetings.10 See Retamco, 278 S.W.3d at 340 (affirming exercise of
specific personal jurisdiction when defendant “was a willing participant in a transaction with an
affiliated Texas company”).11
9
See Woodson, 444 U.S. at 299 (no jurisdiction over a nonresident automobile distributor
whose only tie to the state was a customer’s unilateral decision to drive there); Kulko v. Cal.
Superior Court, 436 U.S. 84, 93–94 (1978) (no jurisdiction over a nonresident divorced husband
owing child support to a former spouse who unilaterally decided to move to another state); Hanson,
357 U.S. at 251 (no jurisdiction over a nonresident trustee whose only connection to the state
resulted from the settlor’s unilateral decision to exercise her power of appointment in that state).
10
Moncrief substantiated its allegations with evidence that the Gazprom Defendants accepted
the alleged trade secrets at the Texas meetings. For example, an affidavit and deposition testimony
of Richard Moncrief, who attended the Texas meetings, stated that Moncrief provided the Gazprom
Defendants updated versions of the trade secrets at both meetings. The Gazprom Defendants cite
to evidence that they announced an intent not to discuss the proposed joint venture at the meetings
and did not agree to keep the alleged trade secrets confidential in exchange for receiving them. But
the Gazprom Defendants do not cite, and we cannot locate, any evidence in the record that the
Gazprom Defendants did not receive the alleged trade secrets at the meetings. Therefore, we cannot
imply a finding that the Gazprom Defendants did not receive the alleged trade secrets because such
a finding is not supported by evidence. See Retamco, 278 S.W.3d at 337.
11
Moreover, the previous meetings in Moscow, Boston, and Washington, D.C. did not render
the two Texas meetings random and fortuitous because: (1) the discussions were regarding a joint
venture in Texas, see Michiana, 168 S.W.3d at 789–90 & n.70, and (2) Moncrief was headquartered
in Texas, see Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 114 (1987).
Moreover, the information was revised and updated before the Texas meetings.
12
Additionally, the Gazprom Defendants’ contacts were purposeful and substantial because
their activity “was aimed at getting extensive business in or from the forum state.” Michiana, 168
S.W.3d at 789–90. While we have held that a single business transaction occurring outside the state
is insufficient to confer specific jurisdiction, id. at 787–88, the United States Supreme Court
concluded that forming an enterprise in one state to send payments to a corporation in the forum state
was sufficient to confer specific jurisdiction, Burger King, 471 U.S. at 468, 478. Because the
Gazprom Defendants attended two Texas meetings, at which they accepted Moncrief’s alleged trade
secrets regarding a proposed joint venture in Texas, their contacts were not unilaterally from
Moncrief, nor were they random and fortuitous.12
The Gazprom Defendants protest that their subjective intent in attending the meetings was
solely to discuss settlement of the Y-R Field dispute, indicating they did not purposefully avail
themselves of doing business in Texas. But the Gazprom Defendants attended the two Texas
meetings where they accepted the alleged trade secrets regarding a proposed Texas joint venture,
which is the crux of the matter. As we stated in Michiana, courts at the jurisdiction phase examine
business contacts, not what the parties thought or intended—which is the role of the fact-finder in
assessing the merits of the claim. See 168 S.W.3d at 791. For example, if a nonresident defendant
intended to drive through Texas and caused a vehicular accident in the state, her intent to simply pass
12
Moncrief also asserts in its briefing the additional contacts by the Gazprom Defendants of
use of the trade secrets in Texas. But Moncrief’s live pleading alleges GMT USA is using those
trade secrets in Texas and does not allege that the Gazprom Defendants provided the trade secrets
to GMT USA in Texas. Moreover, the court of appeals rejected Moncrief’s theory that GMT USA
is the alter ego of another Gazprom subsidiary, which Moncrief does not appeal here. 332 S.W.3d
at 20–22. Accordingly, we will not analyze these contacts for our purposeful availment analysis.
13
through the state would not negate the fact that she caused a vehicular accident. Here, the Gazprom
Defendants intended to, and did, come to Texas for two meetings, at which they accepted alleged
trade secrets from Moncrief that involved a proposed joint venture in Texas. The Gazprom
Defendants’ subjective intent does not negate their business contacts. See id.
Finally, the Gazprom Defendants benefitted from Texas. For contacts to be purposeful, the
defendant must seek some “benefit, advantage, or profit” by availing itself of the forum. Id. at 785.
This is premised on implied consent: a nonresident consents to suit by invoking the benefits and
protections of a forum’s laws.13 Id. at 784. We have found jurisdiction over nonresidents with no
physical ties to Texas when an out-of-state contract was formed “for the sole purpose of building a
hotel in Texas,” Zac Smith & Co., Inc. v. Otis Elevator Co., 734 S.W.2d 662, 665–66 (Tex. 1987),
and when enrollment for out-of-state school was executed in Arizona but was “actively and
successfully solicited” in Texas, Siskind v. Villa Found. for Educ., Inc., 642 S.W.2d 434, 437 (Tex.
1982); see also Michiana, 168 S.W.3d at 789–90 (discussing cases finding specific jurisdiction when
forum contact “was aimed at getting extensive business in or from the forum state”). Here, Gazprom
attended two Texas meetings with a Texas corporation and accepted alleged trade secrets created in
Texas regarding a potential joint venture in Texas with the Texas corporation. Far from seeking to
avoid Texas, Gazprom sought out Texas and the benefits and protections of its laws. Burger King,
471 U.S. at 474; Michiana, 168 S.W.3d at 785; BMC Software, 83 S.W.3d at 795.
13
A nonresident may structure its business so as to not profit from a forum’s laws and not
be subject to its jurisdiction. Michiana, 168 S.W.3d at 785.
14
2. Fair Play and Substantial Justice
In addition to minimum contacts, due process requires the exercise of personal jurisdiction
to comply with traditional notions of fair play and substantial justice. Retamco, 278 S.W.3d at 338.
If a nonresident has minimum contacts with the forum, rarely will the exercise of jurisdiction over
the nonresident not comport with traditional notions of fair play and substantial justice. Id. at 341.
We undertake this evaluation in light of the following factors, when appropriate: (1) the burden on
the defendant; (2) the interests of the forum in adjudicating the dispute; (3) the plaintiff’s interest in
obtaining convenient and effective relief; (4) the international judicial system’s interest in obtaining
the most efficient resolution of controversies; and (5) the shared interest of the several nations in
furthering fundamental substantive social policies. Spir Star AG v. Kimich, 310 S.W.3d 868, 878
(Tex. 2010); see Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 113 (1987).
On balance, asserting personal jurisdiction over the Gazprom Defendants as to the trade
secrets claim would not offend traditional notions of fair play and substantial justice. Subjecting the
Gazprom Defendants to suit in Texas certainly imposes a burden on them, but the same can be said
of all nonresidents. Distance alone cannot ordinarily defeat jurisdiction. Spir Star, 310 S.W.3d at
879 (“Nor is distance alone ordinarily sufficient to defeat jurisdiction: ‘modern transportation and
communication have made it much less burdensome for a party sued to defend himself in a State
where he engages in economic activity.’” (quoting McGee, 355 U.S. at 223)). Given the Gazprom
Defendants’ meetings with Moncrief in Texas and their increased familiarity with the forum and
legal system through establishing a subsidiary headquartered here, the burden of litigating in Texas
is not so severe as to defeat jurisdiction. See id. (holding jurisdiction was appropriate where German
15
company officers traveled to Houston to establish a distributing company). And this burden is
somewhat mitigated by the convenience to Moncrief, a Texas resident, of litigating in the forum
where the alleged trade secrets were appropriated and then purportedly used. Moreover, the
allegations that the Gazprom Defendants committed a tort in Texas against a resident implicate a
serious state interest in adjudicating the dispute.14 Finally, because these claims will be litigated with
GMT USA in a Texas court, it promotes judicial economy to litigate the claims as to all parties in
one court. See id. (“[B]ecause the claims against [the resident defendant] will be heard in Texas, it
would be more efficient to adjudicate the entire case in the same place.”). On balance, the burden
on the Gazprom Defendants of litigating in a foreign jurisdiction is minimal and outweighed by
Texas’s interests in adjudicating the dispute. Id. at 879–80.
The Gazprom Defendants counter that the Russian government is the majority owner of
Gazprom and government officials at the highest level are aware of Moncrief’s claims. In support,
the Gazprom Defendants cite to Solgas Energy Ltd. v. Global Steel Holdings Ltd., where a
nonresident was sued over an alleged bribe to a Nigerian official to terminate its contract with the
plaintiff. No. 04-06-00731-CV, 2007 WL 1892206, at *2, 7 (Tex. App.—San Antonio July 3, 2007,
no pet.) (mem. op.). There, the court of appeals held that Texas’s interest in resolving the dispute
was tenuous because the United States federal government has an interest in foreign relations and
the bribery allegations implicated Nigerian law. Id. at *7. But here, Gazprom is not wholly owned
14
See Keeton, 465 U.S. at 776 (“A state has an especial interest in exercising judicial
jurisdiction over those who commit torts within its territory.”); see also Asahi Metal, 480 U.S. at 114
(“Because the plaintiff is not a California resident, California’s legitimate interests in the dispute
have considerably diminished.”).
16
by the Russian government, Moncrief’s claims against the Gazprom Defendants do not implicate any
government officials, and no other jurisdiction has as significant an interest as Texas does in
resolving a claim for a tort committed in Texas against a Texas resident. On balance, this is not one
of the rare cases where exercising jurisdiction fails to comport with fair play and substantial justice.15
Accordingly, we hold that the trial court has jurisdiction over the Gazprom Defendants as to the trade
secrets claim.
C. Tortious Interference Claims
Moncrief also brought claims against the Gazprom Defendants for tortiously interfering with
existing and prospective business relationships. Moncrief contends the Gazprom Defendants’
appropriation of the alleged trade secrets in Texas and use of the information to form a competing
enterprise destroyed Moncrief’s existing and prospective relationships with Occidental. The
Gazprom Defendants respond, and the court of appeals held, that the tortious interference claims do
not arise from the Texas meetings or their receipt of the information from Moncrief. We agree.
Specific jurisdiction exists only if the alleged liability arises out of or is related to the
defendant’s activity within the forum. Moki Mac, 221 S.W.3d at 573. In considering competing
interpretations of the phrase, we ultimately determined “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 585. In Moki Mac, a Texas teenager fell to
15
The Gazprom Defendants also contend the information they received from Moncrief did
not constitute trade secrets. Although they may well ultimately prevail on this theory, it is a merits
issue that is inappropriate at the jurisdiction stage. Michiana, 168 S.W.3d at 790–91.
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his death in Arizona while on a hike supervised by a Utah-based company. Id. at 573. His parents
filed suit against the company in Texas for wrongful death, maintaining the claim arose from
misrepresentations in documents the company mailed to them in Texas as well as the company’s
other Texas contacts. Id. at 573, 576. We disagreed, holding “the operative facts of the [plaintiffs’]
suit concern principally the guides’ conduct of the hiking expedition and whether they exercised
reasonable care in supervising” the teenager. Id. at 585. We further observed the “events on the trail
and the guides’ supervision of the hike will be the focus of the trial, will consume most if not all of
the litigation’s attention, and the overwhelming majority of the evidence will be directed to that
question.” Id.
Here, Moncrief alleges the Gazprom Defendants tortiously interfered with its agreement and
relationship with Occidental, causing Occidental to breach its agreement and cease its relationship
with Moncrief. See Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 721–22, 727 (Tex. 2001)
(discussing tortious interference with contract and tortious interference with prospective contractual
or business relations claims). Under the framework we established in Moki Mac, Moncrief’s tortious
inference claims principally concern two activities: (1) discussions between Gazprom and Occidental
in California where Gazprom allegedly attempted to convince Occidental to proceed with a joint
venture that did not include Moncrief, and (2) the Gazprom Defendants’ establishment of a
competing enterprise in Texas, thereby diminishing the value of a joint venture between Occidental
and Moncrief to accomplish the same purpose. See Moki Mac, 221 S.W.3d at 585.
Moncrief also argues its tortious interference claims arise from a third set of contacts: the
Gazprom Defendants’ purported misappropriation of Moncrief’s alleged trade secrets in Texas. We
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disagree. Much like the accident in Moki Mac would not have occurred but for executing contract
materials in Texas, the establishment of a competing enterprise arguably would not be possible
without the Gazprom Defendants’ purported acquisition of the alleged trade secrets. See id. at 585.
However, but-for causation alone is insufficient. Id. Just as the wrongful death claim in Moki Mac
was principally concerned with alleged negligence in Arizona, the tortious interference claim here
is principally concerned with the California meeting and the competing Texas enterprise—not the
purported misappropriation of alleged trade secrets. See id.
Neither the California meeting nor the competing enterprise in Texas can form the basis for
specific jurisdiction over the Gazprom Defendants in Texas. As we held in Michiana, a nonresident
directing a tort at Texas from afar is insufficient to confer specific jurisdiction. 168 S.W.3d at
790–92. The focus is properly on the extent of the defendant’s activities in the forum, not the
residence of the plaintiff. Id. at 789. Thus, the Gazprom Defendants’ alleged tortious conduct in
California against a Texas resident is insufficient to confer specific jurisdiction over the Gazprom
Defendants as to Moncrief’s tortious interference claims. See id. at 789–92.
Moreover, Moncrief’s allegation that the Gazprom Defendants established a competing
enterprise in Texas cannot support specific jurisdiction. Moncrief alleges Gazprom Marketing &
Trading, Ltd., a Gazprom subsidiary, formed GMT USA as a competing enterprise in Texas. But
the court of appeals rejected Moncrief’s theory that GMT USA is the alter ego of Gazprom
Marketing & Trading, Ltd. 332 S.W.3d at 20–22; see PHC-Minden, L.P. v. Kimberly-Clark Corp.,
235 S.W.3d 163, 175 (Tex. 2007) (imputing jurisdictional contacts to another entity requires
assessing “the amount of the subsidiary’s stock owned by the parent corporation, the existence of
19
separate headquarters, the observance of corporate formalities, and the degree of the parent’s control
over the general policy and administration of the subsidiary”). Moncrief does not challenge that
ruling here. Additionally, Moncrief does not allege the Gazprom Defendants provided the trade
secrets to GMT USA in Texas. Therefore, we cannot impute the Texas contacts regarding the
competing enterprise to the Gazprom Defendants. In sum, we conclude neither the California
contacts nor the establishment of a competing enterprise supports an exercise of jurisdiction over the
Gazprom Defendants as to the tortious interference claims.
D. Additional Depositions
Finally, Moncrief contends the trial court erred in refusing to allow the deposition of
Gazprom’s deputy chairman and a representative of Gazprom Bank. The court of appeals held the
trial court did not abuse its discretion because it could have reasonably concluded the testimony
would be cumulative as to the jurisdictional facts. 332 S.W.3d at 23. We agree.
Initially, we note that because we have concluded the trial court has specific jurisdiction over
the Gazprom Defendants as to the trade secrets claim, further deposition testimony regarding these
claims is unnecessary. But we have also determined there is no specific jurisdiction over the
Gazprom Defendants as to the tortious interference claims. If the depositions Moncrief sought could
yield jurisdictional facts that support jurisdiction as to the tortious interference claims, then the trial
court abused its discretion.
Because Moncrief has not demonstrated what additional jurisdictional facts the depositions
would provide, we conclude the trial court did not abuse its discretion. Moncrief claims Gazprom’s
deputy chairman sent a representative of Gazprom Bank to California to meet with Occidental. In
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its motion to compel, Moncrief sought to depose Gazprom’s deputy chairman because it believed
he would provide testimony regarding the meetings with Moncrief. It also sought to depose the
Gazprom Bank representative because it believed he would provide testimony regarding his meeting
with Occidental. But Moncrief already deposed the consultant for Gazprom who attended the
meeting with Occidental (as well as both Texas meetings) and one of Occidental’s representatives
from that meeting—who both testified as to what the Gazprom Bank representative said. Moncrief
has not identified what additional testimony the depositions of the Gazprom Bank representative or
Gazprom’s deputy chairman would provide regarding Texas contacts with respect to the tortious
interference claims. Therefore, we hold the trial court did not abuse its discretion in denying
Moncrief’s motion to compel the depositions. See BMC Software, 83 S.W.3d at 800–01 (holding
trial court did not abuse discretion in denying continuance before special appearance hearing).
III. Conclusion
The Gazprom Defendants attended two Texas meetings with a Texas corporation and
accepted alleged trade secrets created in Texas regarding a potential Texas-based joint venture with
the Texas corporation. These contacts were neither unilaterally from Moncrief nor random and
fortuitous, and they indicate the Gazprom Defendants were benefitting from the protection of Texas
laws. Therefore, we conclude the trial court has specific personal jurisdiction over Moncrief’s trade
secrets claim, and the court of appeals erred in affirming the special appearance as to this claims.16
16
Moncrief’s conspiracy claims (for conspiracy to tortiously interfere and conspiracy to
misappropriate trade secrets) are not factually distinct from the underlying trade secret and tortious
interference claims. See 332 S.W.3d at 10 n.7 (“[B]ecause no factually distinct basis exists for
Moncrief Oil’s conspiracy claims, they add nothing to our jurisdictional analysis.”). Accordingly,
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But we agree with court of appeals that the trial court has no specific personal jurisdiction over the
Gazprom Defendants as to Moncrief’s tortious interference claims and that the trial court did not
abuse its discretion in refusing to compel additional depositions. Accordingly, we reverse the
judgment of the court of appeals in part, affirm in part, and remand to the trial court for further
proceedings consistent with this opinion.
____________________________________
Eva M. Guzman
Justice
OPINION DELIVERED: August 30, 2013
the exercise of jurisdiction is proper over the conspiracy to misappropriate trade secrets claim, see
supra Part II.B, and improper over the conspiracy to tortiously interfere claim, see supra Part II.C.
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