Opinion
CIVIL ACTION NO. 3:02-CV-0994-G
September 12, 2002
MEMORANDUM ORDER
Before the court is the motion of defendant Robert Evans ("Evans") to dismiss the claims of the plaintiff Addison Insurance Marketing, Inc. ("Addison") for lack of personal jurisdiction or, in the alternative, to transfer this case to the United States District Court for the Western District of Pennsylvania. For the reasons set forth below, the defendant's motion to dismiss is granted and the alternative motion to transfer is denied as moot.
The defendant also requests that this court dissolve the temporary restraining order against him granted by the District Court of Dallas County, 298th Judicial District. That temporary restraining order, however, has already expired. Granny Goose Foods, Inc. v. Brotherhood of Teamsters Auto Truck Drivers Local No. 70 of Alameda County, 415 U.S. 423, 445 (1974).
I. BACKGROUND
This suit involves the alleged breach of a covenant not-to-compete in an agency agreement and the alleged misuse of confidential trade secret information. Addison is a Texas corporation with its principal place of business in Dallas, Texas. See Plaintiff's Original Petition ("Petition") ¶ 4, located in Defendant's Notice of Removal. Addison is a corporation engaged in the business of marketing and selling annuities and other insurance products throughout the country. Id. ¶ 9; see also Plaintiff's Response to Defendant's Special Appearance and Motion to Dismiss the Claim for Lack of Jurisdiction or, in the Alternative, to Transfer Venue ("Response") at 4. Evans is an individual domiciliary and resident of the Commonwealth of Pennsylvania. Petition ¶ 5.
On February 27, 2001, Evans began working for Addison as an independent agent to sell Addison's products and services in Pennsylvania. Petition ¶ 17. Addison hired Evans at its office in Pittsburgh, Pennsylvania ("Pittsburgh office") after Evans responded to a solicitation of employment Addison sent to his home in Greensburg, Pennsylvania. See Reply Brief of the Defendant, Robert Evans, in Further Support of Motion to Dismiss for Lack of Personal Jurisdiction ("Reply") at 3. The solicitation listed the address and phone number of Addison's Pittsburgh office. See Transcript of Deposition of Robert Evans ("Evans Deposition"), located in Appendix to Plaintiff's Response to Defendant's Special Appearance and Motion to Dismiss the Claim for Lack of Personal Jurisdiction or, in the Alternative, to Transfer Venue ("Appendix"), at 18-19. At the outset of the employment relationship, Addison required Evans to sign an agency agreement, which contained a covenant not-to-compete and choice-of-law provision. See Addison Insurance Marketing, Inc. Agent Agreement ("Agent Agreement"), located in Appendix at 41, 45, 48. The choice-of-law provision provided that the agreement would be construed in accordance with Texas law and that the venue for any dispute would be a court of proper jurisdiction" in Dallas County, Dallas, Texas. Id. at 48. Evans received and signed the agreement at the Pittsburgh office following his second and final interview. See Evans Deposition, Appendix at 20. All training appears to have been conducted by a supervisor at Addison's Pittsburgh office. Reply at 3.
It is unclear if the parties disagree about whether Evans has ever traveled to Texas for a business-related purpose. In plaintiffs original petition and application for temporary restraining order and injunctive relief in the Dallas County District Court, plaintiff alleged that Evans had "traveled to Texas for corporate convention(s), training session(s) and/or strategy meetings." Petition ¶ 6. Evans denies ever traveling to Texas for any purpose, personal or business, and challenges these assertions as misrepresentations. See Brief of the Defendant, Robert Evans, in Support of Motion to Dismiss for Lack of Personal Jurisdiction ("Defendant's Brief') at 4-6. Addison has not responded to Evans' denial of presence in Texas.
Evans' position with Addison involved the sale of insurance policies in Pennsylvania. Evans would begin by meeting with potential customers at their homes to discuss the sale of products and services offered by Addison. Reply at 3-4. Addison prearranged these meetings and notified Evans of his customer appointments on a daily basis — initially by faxes sent to his home from the Pittsburgh office and later through e-mail messages from the Dallas office. Id. When Evans, acting on behalf of Addison, made a sale to one of these customers, Addison required that Evans notify both the Pittsburgh and Dallas offices of the sale. Id. at 4. Evans notified the Dallas office of the sale by leaving a voice-mail message, but in reporting a sale he never spoke to anyone in the Dallas office. Id. After verbally notifying the Pittsburgh and Dallas offices of the sale, Evans would mail the completed insurance forms and any required payment to the Dallas office, which would send the forms to American Equity Investment Life Insurance Company, Inc. ("American Equity"), its insurance carrier in Iowa. Response at 5; see also Reply at 4. American Equity would return the processed policy to the Dallas office, which would forward it to the Pittsburgh office. Response at 6. Evans would then pick up the completed policy from the Pittsburgh office and personally deliver it to the customer. Id. at 5-6. Addison required that a delivery receipt notification be sent to the Dallas office after Evans delivered a policy. Id. at 6. Upon completion of a sale, the Dallas office would send a commission check to the Pittsburgh office and Evans would pick up the check from that office. Reply at 5.
Addison selected these potential customers from a "customer list" developed at its office in Dallas, Texas ("Dallas office"). Petition ¶¶ 10-11; see also Response at 2-4. These customer lists were compiled on the basis of responses from Addison's mass mailings and its customer call center in Dallas. Petition ¶ 11.
In the event that Evans had any questions or difficulties in servicing a customer, he was to contact his supervisor at the Pittsburgh office. Id. at 4. Addison also provided Evans with business cards to distribute to customers and potential customers. Response at 5. These cards listed the Pittsburgh office address and a tollfree number that connected customers with personnel at the Dallas office. Reply at 4. However, the card did not indicate that the toll-free number called any office other than the one listed on the card. Id. Pennsylvania remained Evans' only sales territory throughout his employment with Addison and he apparently had no customers outside of that state. Id. at 3-4. Evans performed all of his work out of the Pittsburgh office until it closed; thereafter, he worked out of the Philadelphia office for his last two months with Addison. Id. at 5; see also Evans Deposition, Appendix at 22.
On or about November 19, 2001, for reasons undisclosed, Evans tendered his resignation from Addison at the Philadelphia office. Petition ¶ 21. Addison alleges that following his resignation, Evans engaged in conduct which violated the covenant not-to-compete by directly competing with Addison, "either alone or in concert with other persons," and that Addison "has reason to believe that [Evans] is selling the same types of insurance products that [he] sold while [he] was an Agent for Plaintiff." Id. ¶ 23. On April 19, 2002, Addison filed plaintiff's original petition and application for temporary restraining order in the District Court of Dallas County, 298th Judicial District. The district court granted a temporary restraining order on April 19, 2002, which was extended on April 24, 2002 at Addison's request. On May 10, 2002, Evans removed the case to this court. Subsequently, on May 13, 2002, Evans filed the instant motion.
II. ANALYSIS A. The Factual Standard: A Prima Facie Case
When a nonresident defendant moves to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing the district court's jurisdiction over the nonresident. Wilson v. Belin, 20 F.3d 644, 648 (5th Cir.), cert. denied, 513 U.S. 930 (1994); Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir. 1985). If the district court chooses to decide the matter without an evidentiary hearing, the plaintiff may meet its burden by presenting a prima facie case for personal jurisdiction. Wilson, 20 F.3d at 648; Thompson v. Chrysler Motors Corporation, 755 F.2d 1162, 1165 (5th Cir. 1985).
The court will take the allegations of the complaint as true, except where they are controverted by opposing affidavits, and all conflicts in the facts are resolved in favor of the plaintiff. Wilson, 20 F.3d at 648. In making its determination, the court may consider affidavits, interrogatories, depositions, oral testimony, or any combination of recognized discovery methods. Thompson, 755 F.2d at 1165; Stuart, 772 F.2d at 1192.
B. The Legal Standard
"A federal district court sitting in diversity may exercise personal jurisdiction over a nonresident defendant if (1) the long-arm statute of the forum state confers personal jurisdiction over that defendant; and (2) exercise of such jurisdiction by the forum state is consistent with due process under the United States Constitution." Ruston Gas Turbines, Inc. v. Donaldson Company, Inc., 9 F.3d 415, 418 (5th Cir. 1993); see also Asarco, Inc. v. Glenara, Ltd., 912 F.2d 784, 786 (5th Cir. 1990); Pedelahore v. Astropark, Inc., 745 F.2d 346, 347 (5th Cir. 1984). A defendant is amenable to the personal jurisdiction of a federal court sitting in diversity to the same extent that he would be amenable to the jurisdiction of a state court in the same forum. Pedelahore, 745 F.2d at 347. Applying state law, this court must first determine whether Texas, the forum state, could assert long-arm jurisdiction. Id. Because the Texas long-arm statute confers jurisdiction to the limits of the federal constitution, Hall v. Helicopteros Nacionales de Colombia, S.A., 638 S.W.2d 870, 872 (Tex. 1982), rev'd on other grounds 466 U.S. 408 (1984), the court need only concern itself with the federal due process inquiry. Bullion v. Gillespie, 895 F.2d 213, 215-16 (5th Cir. 1990); see also TEX. Civ. PRAC. REM. CODE ANN. § 17. 041 et seq. (Vernon 1997) (Texas long-arm statute).
C. Due Process Requirements
Due process requires the satisfaction of two elements to exercise personal jurisdiction over a non-resident defendant: (1) the nonresident must have some minimum contact with the forum which results from an affirmative act on his part such that the nonresident defendant could anticipate being haled into the courts of the forum state; and (2) it must be fair or reasonable to require the nonresident to defend the suit in the forum state. Burger King Corporation v. Rudzewicz, 471 U.S. 462, 474-77 (1985); C H Transportation Company, Inc. v. Jensen Reynolds Construction Company, 719 F.2d 1267, 1269 (5th Cir. 1983) (citations omitted), cert. denied, 466 U.S. 945 (1984). The Due Process Clause ensures that persons have a "fair warning that a particular activity may subject a person to the jurisdiction of a foreign sovereign." Shaffer v. Heitner, 433 U.S. 186, 218 (1977) (Stevens, J., concurring).
1. Minimum Contacts
To establish minimum contacts, a nonresident defendant must do some act by which he "purposefully avails himself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253 (1958) (citing International Shoe Company v. Washington, 326 U.S. 310, 319 (1945)). However, the unilateral activity of one asserting a relationship with the nonresident defendant does not satisfy this requirement. World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 298 (1980) (quoting Hanson, 357 U.S. at 253); Stuart, 772 F.2d at 1190. In determining whether the exercise of jurisdiction is appropriate, the Supreme Court has focused less on presence in the forum state as a means to establish jurisdiction and looked increasingly to whether a defendant's contacts with the forum state make it reasonable to require the defendant to defend the particular suit in that forum. Shaffer, 433 U.S. at 203.
Two types of in personam jurisdiction may be exercised over a nonresident defendant: specific jurisdiction and general jurisdiction. Specific jurisdiction exists if the cause of action is related to, or arises out of, the defendant's contacts with the forum and those contacts meet the due process standard. Ruston Gas, 9 F.3d at 418-4 19; Stuart, 772 F.2d at 1190 n. 3. "When a court exercises personal jurisdiction over a defendant based on contacts with the forum related to the particular controversy, the court is exercising `specific jurisdiction.'" Holt Oil Gas Corporation v. Harvey, 801 F.2d 773, 777 (5th Cir. 1986) (citations omitted), cert. denied, 481 U.S. 1015 (1987). General jurisdiction, on the other hand, may be found when the claim is unrelated to the nonresident's contacts with the forum but where those contacts are "continuous and systematic." Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 415-16 (1984).
Under either a specific or general jurisdiction analysis, however, "the constitutional touchstone remains whether the defendant purposefully established "minimum contacts' in the forum [s]tate." Burger King, 471 U.S. at 474 (quoting International Shoe, 326 U.S. at 316). The "purposeful availment" requirement of the minimum contacts inquiry "ensures that a defendant will not be haled into a jurisdiction solely as a result of `random,' `fortuitous,' or `attenuated' contacts . . . or of the `unilateral activity of another party or a third person.'" Id. at 475 (citations omitted). A plaintiff must establish a substantial connection between the nonresident defendant and the forum state. Jones v. Petty-Ray Geophysical, Geosource, Inc., 954 F.2d 1061, 1068 n. 9 (5th Cir.), cert. denied, 506 U.S. 867 (1992); Bearry v. Beech Aircraft Corporation, 818 F.2d 370, 374 (5th Cir. 1987) (citing Burger King, 471 U.S. at 475 n. 18); McGee v. International Life Insurance Company, 355 U.S. 220, 223 (1957)).
A court must consider all factors when making the purposeful availment inquiry — "no single factor, particularly the number of contacts, is determinative." Stuart, 772 F.2d at 1192. "[W]hether the minimum contacts are sufficient to justify subjection of the non-resident to suit in the forum is determined not on a mechanical and quantitative test, but rather under the particular facts upon the quality and nature of the activity with relation to the forum state." Mississippi Interstate Express Inc. v. Transpo, Inc., 681 F.2d 1003, 1006 (5th Cir. 1982) (emphasis added), see also D.J. Investments, Inc. v. Metzeler Motorcycle Tire Agent Gregg, Inc., 754 F.2d 542, 547 (5th Cir. 1985).
a. Specific Jurisdiction
Addison asserts that specific jurisdiction may be exercised over Evans due to the "voluminous number of activities" that he "purposefully directed" at Texas. Response at 14-16. In particular, Addison argues that the following conduct on the part of Evans is sufficient for this court to establish personal jurisdiction over him: (1) receiving appointments by e-mail sent from the Dallas office, (2) giving customers a business card with toll-free number that connects those customers with personnel in Texas, (3) use of a voice-mail system based in the Dallas office, (4) sending the completed insurance forms and any payments to Texas for processing, (5) sending policy delivery confirmations to Texas, (6) receiving commission checks in Pennsylvania that were originally printed and sent from Texas, (7) signing a contract with Addison in Pennsylvania while knowing that Addison is a Texas corporation and (8) the presence of a choice-of-law provision in his agency agreement. Id. These contacts alone, however, are insufficient to warrant this court's exercise of in personam jurisdiction over Evans.
To exercise specific jurisdiction, the court must examine the relationship among the defendant, the forum, and the litigation to determine whether maintaining the suit offends traditional notions of fair play and substantial justice. See Halt Oil, 801 F.2d at 777. The Fifth Circuit has held that when parties direct purposeful tortious activity towards a particular forum, they should anticipate being haled into court in that forum. See D.J. Investments, 754 F.2d at 547 (defendant corporate officer accused of fraud had sufficient contacts as he engaged in correspondence with plaintiffs forum, phoned plaintiff, and visited forum to negotiate); Brown v. Flowers Industries, Inc., 688 F.2d 328, 333-34 (5th Cir. 1982) (single defamatory phone call sufficient to create personal jurisdiction), cert. denied, 460 U.S. 1023 (1983); Union Carbide Corporation v. UGI Corporation, 731 F.2d 1186, 1189-90 (5th Cir. 1984) (out-of-state acts giving rise to tortious injury in forum state enough to warrant personal jurisdiction).
The critical inquiry in these cases is "whether the contacts suggest that the nonresident defendant purposefully availed himself of the benefits of the forum state." Brown, 688 F.2d at 333 (citation omitted). "In addition to the existence of foreseeable consequences, courts consider "the quantity of contacts and the source and connection of the cause of action with those contacts' in determining whether a defendant's actions constitute `purposeful availment.'" Id. (citations omitted). However, it is not solely the number of the defendant's contacts with Texas that the court considers, but whether those contacts "appear to be purposefully directed at Texas." Hoffman International Properties, Inc. v. Sullivan, No. 3:98-CV-1811-G, 1999 WL 451340 at *5-*6 (N.D. Tex., June 28, 1999) (emphasis in original).
In the case sub judice, it was purely fortuitous that the company for which Evans had agreed to sell insurance products in Pennsylvania was based in Texas. Addison solicited Evans at his home in Pennsylvania to sell insurance policies only within Pennsylvania. Reply at 3; see also Evans Deposition, Appendix at 18-19. Evans worked exclusively out of Addison's offices in Pennsylvania and maintained no customers outside of that state. Reply at 3. In the event that Evans had any problems in his employment, he was to report to supervisors in the Pennsylvania offices. Reply at 4. Evans also entered into the agent agreement, received training, and picked up his paychecks, as well as the completed policies, at Addison's Pennsylvania offices. Id. at 3-5. Additionally, it appears that Evans has never even been to the state of Texas, and there is no allegation that he possesses any property within the boundaries of this state. See Defendant's Brief at 4.
The contacts relied on by Addison to support personal jurisdiction over Evans consist primarily of incidental contacts with the state of Texas. See Patterson v. Dietze, Inc., 764 F.2d 1145, 1147 (5th Cir. 1985) (where vast the majority of parties' activities are conducted in a foreign state, incidental contacts with the forum are insufficient to confer specific jurisdiction over nonresident defendant). The regular email notifications, voice-mail messages, receipt of paychecks sent from Texas, toll-free Texas number on Evans' business card, transmission of completed policies to the Dallas office and other correspondence merely represent the particular administrative procedures Addison required of its agents in selling insurance policies. See Response at 14-16. Such contacts do not demonstrate any purposeful tortious activity directed towards Texas by Evans sufficient for him to anticipate being haled into a Texas court. See D.J. Investments, 754 F.2d at 547; Patterson, 764 F.2d at 1147; see also Barnstone v. Congregation Am Echad, 574 F.2d 286, 287-89 (5th Cir. 1978) (negotiations by telephone and mail with Texas architect regarding construction of a synagogue in Maine did not confer personal jurisdiction over Maine defendant). Rather, these contacts, regardless of any regularity, appear to be nothing more than requirements Addison imposed on Evans for his conduct of business within Pennsylvania. All of Evans' alleged contacts with Texas in the sale of Addison insurance policies clearly rested on nothing more that "the mere fortuity that [Addison] happens to be a resident of the forum," Holt Oil, 801 F.2d at 778 (quoting Patterson, 764 F.2d at 1147), and simply do not establish the purposeful availment of the "benefits and protections" of Texas law. Wilson, 20 F.3d at 647.
Moreover, Addison's claim that Evans knew Addison to be a Texas-based corporation when he signed the agency agreement is inconsequential under the present facts. Mere knowledge by the defendant of the plaintiffs Texas domicile is insufficient for personal jurisdiction without evidence that defendant has expressly directed allegedly tortious activity at the forum. See Southmark Corporation v. Life Investors, Inc., 851 F.2d 763, 772-773 (5th Cir. 1988); Hoffman, 1999 WL 451340 at *5 Since the facts in this case fail to show any purposeful tortious conduct expressly aimed by Evans at Texas, the fact that Evans may have known Addison to be a Texas corporation when he signed the agreement is not sufficient to confer jurisdiction over Evans.
Addison also places substantial weight on the choice-of-law provision in the agency agreement in arguing that sufficient contacts exist for this court to exercise personal jurisdiction over Evans. Response at 7, 16. "[T]he Supreme Court has indicated that a choice-of-law provision should neither be ignored nor considered sufficient alone to confer jurisdiction." Electrosource, Inc. v. Horizon Battery Technologies, Ltd., 176 F.3d 867, 873 (5th Cir. 1999). Such a provision is merely "one factor among others that may determine whether the forum State has jurisdiction over a nonresident defendant." Id. Thus, the choice-of-law provision must be considered in light of the Evans' other contacts with Texas. As discussed above, the contacts urged by Addison in support of in personam jurisdiction do not indicate that Evans has expressly aimed any tortious activity at Texas. Southmark, 851 F.2d at 772. Simply stated, these contacts fail to show the purposeful availment necessary to satisfy the due process inquiry. See Patterson, 764 F.2d at 1147. Therefore, the choice-of-law provision, without more, is not sufficient to warrant the exercise of personal jurisdiction over Evans by this court.
It is of further significance that Addison's causes of action — namely for breach of contract, conversion, and the misuse of trade secret information — relate only indirectly, if at all, to the contacts alleged by Addison. See Petition ¶¶ 29-61 (Addison's individual causes of action and relief sought). Specific jurisdiction cannot exist when "the act or transaction being sued upon is unrelated to the defendant's contacts with the forum state." Ruston Gas, 9 F.3d at 418-19; see also Bearry, 818 F.2d at 374. In the present case, the alleged injury centers around contacts occurring in Pennsylvania between Evans, a former Pennsylvania agent for Addison, and Addison's Pennsylvania customers. See Response at 15. The injury claimed by Addison does not directly arise from Evans' contacts with Texas, but rather from actions allegedly taken by Evans in Pennsylvania following the termination of his employment. The fact that Addison may have originally sent any of the allegedly misappropriated information from Texas to Evans in Pennsylvania relates only indirectly, if at all, to Addison's causes of action and therefore further weakens the value of these contacts in the jurisdictional analysis. See Beany, 818 F.2d at 374 (noting that when a cause of action fails to arise from or directly relate to nonresident's purposeful conduct with forum, only an exercise of general jurisdiction will comport with due process).
Finally, Addison makes a number of references to the cost of developing its trade secrets and the financial harm it has and will suffer as a result of Evans' alleged activities. See ¶¶ 9-16, 27; Response 2-3. These references are irrelevant to the determination of jurisdiction over Evans, for any financial injury Addison felt in Texas as a result of Evans' conduct in Pennsylvania is insufficient to warrant the exercise of jurisdiction over Evans by this court. The Fifth Circuit has held that in deciding the place of injury for jurisdictional purposes, "actual injury must be distinguished from its resultant consequences, such as . . . [the] economic effects or other collateral consequences that often stem from the actual injury." Jobe v. ATR Marketing, Inc., 87 F.3d 751, 753-54 (5th Cir. 1996); see also Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 212 (5th Cir. 1999); Southmark, 851 F.2d at 772-73. While the collateral harm may be far reaching, the consequences stemming from actual injury generally do not confer personal jurisdiction "at the site or sites where such consequences happen to occur." Jobe, 87 F.3d at 753. Even where those harmful affects are foreseeable, they are only to be addressed as one part of the defendant's relevant contacts with the forum. See Wien Air Alaska, 195 F.3d at 212. However, "[f]oreseeable injury alone is not sufficient to confer specific jurisdiction, absent the direction of specific acts towards the forum." Id.
Addison's actual injury, if any, from the alleged conduct of Evans would have occurred in Pennsylvania where Addison claims to have lost customers and where it claims Evans misused confidential trade secret information. See Petition ¶¶ 23-25, 27. Further, any breach of Evan's agency agreement would also have taken place in Pennsylvania, where Evans signed his agreement and where Addison now claims he has acted in violation thereof by soliciting its Pennsylvania customers. Id. ¶ 25. There is no evidence in the record to indicate that any event essential to Addison's causes of action has occurred in, or was directed at, Texas. See Jobe, 87 F.3d at 754-55; Southmark, 851 F.2d at 772-773. Texas simply was not the "focal point" of the conduct and resultant injury claimed by Addison. See Southmark, 851 F.2d at 773. It is clear to this court that any injuries alleged to have occurred in Texas are nothing more than the economic consequences and other miscellaneous fallout" that would normally result from direct competition in an out-of-state market. See Jobe, 87 F.3d at 754. Thus, any harm felt by Addison in Texas as a result of the alleged conduct of Evans in Pennsylvania is merely a collateral consequence of Addison's actual injuries in Pennsylvania and, even if foreseeable, is insufficient to allow this court to exercise personal jurisdiction over Evans.
Based on the totality of the circumstances in this case, the court cannot conclude that Evans purposefully directed any tortious conduct at Texas in such a manner that he could reasonably anticipate being haled into a court in this forum. Those cases supporting the view that telephone conversations, e-mails, and other correspondence may be a sufficient basis for exercising personal jurisdiction involve a greater degree of purposeful activity by the nonresident defendant than is the case here. See, e.g., Wien Air Alaska, 195 F.3d at 212 (defendant sent letters, faxes, and telephone calls to Texas, the contents of which contained the fraudulent misrepresentations and promises at issue); WNS, Inc. v. Farrow, 884 F.2d 200, 203-04 (5th Cir. 1989) (exercise of personal jurisdiction proper where plaintiff alleged fraud and the facts showed that defendants had traveled to Texas to perpetrate the alleged fraud and had numerous contacts with the Texas plaintiff related to the alleged fraud); S J Diving, Inc. v. Doo-Pie, Inc., No. Civ. A. H-02-0293, 2002 WL 1163627 at *1 (S.D. Tex., May 30, 2002) (defendant made express misrepresentations through telephone calls, faxes, and e-mails sent to Texas); Hupp v. Siroflex of America, Inc., 848 F. Supp. 744, 747 (S.D. Tex. 1994) (defendant "sent over 150 of [its] products directly to Texas"). Moreover, the choice-of-law provision in the agreement is not, absent stronger contacts with Texas, sufficient for this court to exercise personal jurisdiction over Evans. Finally, the alleged contacts between Evans and Texas relate only indirectly, if at all, to Addison's causes of action, and any financial Addison harm felt in Texas as a result of these contacts is also insufficient to meet due process requirements. This court therefore concludes that insufficient contacts existed between Texas, Evans, and the instant case to support an exercise of specific jurisdiction.
b. General Jurisdiction
Because the claims in this case do not concern conduct that is unrelated to Evans' contacts with Texas, and because Addison does not allege any systematic and continuous contact between Evans and Texas, the court will not address the question of general jurisdiction.
2. Fair Play and Substantial Justice
The second element of the due process inquiry limits the court's power to exercise personal jurisdiction over a nonresident if the exercise of jurisdiction under the circumstances would offend "traditional notions of fair play and substantial justice." International Shoe, 326 U.S. at 316 ( quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). Since Addison has not established that Evans has sufficient minimum contacts such that he can be subject to jurisdiction in the state of Texas, this court need not determine whether exercise of personal jurisdiction here would comport with notions of fair play and substantial justice." Ham v. La Cienega Music Company, 4 F.3d 413, 416 n. 15 (5th Cir. 1993).
III. CONCLUSION
In deciding whether a nonresident should be required to defend himself in a suit arising in Texas out of contacts between him and a Texas citizen, "`each case must be decided on its own facts.'" Hydrokinetics, Inc. v. Alaska Mechanical, Inc., 700 F.2d 1026, 1028 (5th Cir. 1983) (citation omitted), cert. denied, 466 U.S. 962 (1984). In this case, the totality of the contacts alleged between Evans and Addison does not demonstrate that Evans purposefully availed himself of the benefits and protections of Texas law or that he could reasonably foresee being haled into court here. The exercise of jurisdiction over Evans would thus be inconsistent with the requirements of due process. Accordingly, Evans' motion to dismiss for lack of personal jurisdiction is GRANTED, and Addison's claims against Evans are DISMISSED without prejudice. Finally, Evans' motion to transfer is DENIED as moot.