recognizing that, even though an organization’s sales in Texas constituted only five percent of nationwide sales, the trial court could rely on those sales as a factor in establishing general jurisdiction
How later courts described this case
- recognizing that, even though an organization’s sales in Texas constituted only five percent of nationwide sales, the trial court could rely on those sales as a factor in establishing general jurisdiction
- observing that “[f]ed-eral authority indicates that contacts occurring after suit is filed are irrelevant....”
Written by the judges who cited it.
The opinion
SUPPLEMENTAL OPINION ON MOTION FOR REHEARING
Appellant, American Type Culture Collection, Inc. (“ATCC”), has moved for rehearing. We overrule that motion, but issue this supplemental opinion to address some of its arguments.
Under rehearing issue one, ATCC argues that our jurisdictional formula results in jurisdiction over mail-order companies only in populous states, thereby violating the U.S. Constitution’s Due Process Clause.
ATCC did not argue this before rehearing, although appellees had relied heavily on the fact that Texas was ATCC’s sixth largest U.S. market and that ATCC’s sales were “repetitive” and not sporadic — the same facts on which our opinion largely relied. We conclude this is not an argument that could have been made only after reading our opinion. Therefore, we will not consider it. See, e.g., McGuire v. F.D.I.C., 661 S.W.2d 213, 216 (Tex.Civ.App.—Houston [1st Dist.] 1977, no writ); Trice Prod. Co. v. Dutton Drilling Co., 333 S.W.2d 607, 617 (Tex.Civ.App.-Houston 1960, writ ref'd n.r.e.).
Moreover, adopting ATCC’s view would result in virtually a per se rule preventing general personal jurisdiction over mail-order companies in any state but where they are headquartered. We can find no support for such a per se rule. 1
*53 We overrule this argument under rehearing issue one.
Under rehearing issue two, ATCC argues
The Panel gives only lip service to the concept of purposeful availment, adopting what might best be described as a “pebbles-on-the-scale” theory of personal jurisdiction. It has accumulated a number of pebble-like facts {e.g., ATCC’s attending five conferences in Texas, making 1.7% of sales to Texas residents, etc.) that it concedes would be insufficient to justify general jurisdiction by themselves and has declared that the sum of these pebbles is, in essence, greater than their constitutive parts.
We disagree. We placed some “pebbles” on the jurisdictional scale, but only on top of the “bedrock” facts that (1) Texas was ATCC’s sixth biggest U.S. market; (2) its sales were continuous and regular, not sporadic; and (3) these sales had continued for at least 18 years. That is, minimal contacts, such as ATCC’s attending Texas conferences and not showing its contracts included non-Texas-choice-of-law clauses, and signing 2.7 percent of its repository agreements with Texas residents, would not have tipped the jurisdictional scale had Texas not already been an important sales market for ATCC.
We overrule this argument under rehearing issue two.
We overrule ATCC’s rehearing motion.
The panel denied appellant’s motion for rehearing.
A majority of the Justices of the Court voted to deny appellant’s motion for en-banc rehearing.
Justice O’CONNOR dissents from the denial of appellant’s motion for en-banc rehearing.
. Some case law finding general personal jurisdiction over non-resident mail-order companies indicates the opposite. See Sollinger v. Nasco Int'l, Inc., 655 F.Supp. 1385, 1388-89 (D.Vt.1987) (under long-arm statute reaching as far as Texas’s, after holding specific personal jurisdiction existed, noting in dicta that there was also general personal jurisdiction when defendant was mail- and phone-order company, sent its catalog to unspecified number of Vermont residents, and had no other Vermont contacts); see also Dillon v. Numismatic Funding Corp., 291 N.C. 674, 679-80 , 231 S.E.2d 629, 632-33 (1977) (under long-arm statute reaching as far as Texas’s, and for claims that did not arise out of defendant’s activities in North Carolina, holding personal jurisdiction existed over defendant that "engaged in substantial activity” in North Carolina by regularly mailing advertisements to *53 North Carolina residents, selling $50,000 of coins to 27 residents in 142 sales, and once sending representative to sell to and service North Carolina customer); Michigan Nat’l Bank v. Quality Dinette, Inc., 888 F.2d 462, 466 (6th Cir.1989) (under long-arm statute reaching as far as Texas’s, holding there was general personal jurisdiction when defendants were mail-order businesses and also solicited sales by mail, they had independent sales representative in Michigan, 3 percent of total sales were in Michigan, they made at least one sale per month, and they had no other contacts with Michigan). Cf. Tools USA & Equip. Co. v. Champ Frame Straightening Equip. Inc., 841 F.Supp. 719, 720-21 (M.D.N.C.1993) (after applying virtually same “continuous and systematic — doing business” test as that used to determine general personal jurisdiction, holding venue proper against defendant in North Carolina district in which 1 to 1.5 percent of defendant’s national mail-order business, and 2.5 to 3 percent of its publication circulation, took place).