Dow Chemical Co. v. Castro Alfaro

COOK, Justice,

dissenting.

Like tum-of-the-century wildcatters, the plaintiffs in this case searched all across the nation for a place to make their claims. Through three courts they moved, filing their lawsuits on one coast and then on the other. By each of those courts the plaintiffs were rejected, and so they continued their search for a more willing forum. Their efforts are finally rewarded. Today they hit pay dirt in Texas.

No reason exists, in law or in policy, to support their presence in this state. The legislature adopted within the statute the phrase “may be enforced” to permit plaintiffs to sue in Texas, irrespective of where they live or where the cause of action arose. The legislature did not adopt this statute, however, to remove from our courts all discretion to dismiss. To use the statute to sweep away, completely and finally, a common law doctrine painstakingly developed over the years is to infuse the statute with a power not contained in the words. Properly read, the statute is asymmetrical. Although it confers upon the plaintiffs an absolute right to bring claims in our courts, it does not impose upon our courts an absolute responsibility to entertain those claims.

Even if the statute supported the court’s interpretation, however, I would remain unwilling to join in the opinion. The decision places too great a burden on defendants who are citizens of our state because, by abolishing forum non conveniens, the decision exposes our citizens to the claims of any plaintiff, no matter how distant from Texas is that plaintiff's home or cause of action. The interest of Texas in these disputes is likely to be as slight as the relationship of the plaintiffs to Texas. The interest of other nations, on the other hand, is likely to be substantial. For these reasons, I fear the decision allows assertions of jurisdiction by Texas courts that are so unfair and unreasonable as to violate the due process clause of the federal constitution.

I. PERSONAL JURISDICTION — FROM PRESENCE TO FAIR PLAY

Over a century ago, the United States Supreme Court was called upon to decide the reach of a state’s power to adjudicate a resident plaintiff's claim against an out-of-state defendant in a state court. The Court adopted and applied a simple rule: the state’s power to adjudicate was circumscribed by its borders. If a defendant was present within those borders, then he was subject to the state’s jurisdiction. Thus, the state courts in Oregon could enter a binding personal judgment against the de *698 fendant if, and only if, he was personally served with process within the state or voluntarily appeared before the court. Pennoyer v. Neff, 95 U.S. 714, 720-23 , 24 L.Ed. 565 (1878).

The presence rule was onerous for both plaintiffs and defendants. Plaintiffs had to capture defendants within a state’s borders to serve process. The law compensated for this burden upon plaintiffs by allowing them to serve even transient defendants. This concession to plaintiffs worked a hardship on defendants, who were subjected to assertions of jurisdiction no matter how fleeting the passage of the defendants through a state. For this hardship, the common law provided relief of another kind: the notion that litigants should not be confined to inappropriate forums. This idea, which has developed into what we now call the doctrine of forum non conve-niens, stepped in to bridge the gap between the interests of defendants and forums on the one hand and Pennoyer’s dogmatic presence rule on the other. See Eh-renzweig, The Transient Rule of Personal Jurisdiction: the “Power” Myth and Forum Conveniens, 65 Yale L.J. 289 , 292 (1956).

Pennoyer’s. jurisdictional scheme proved too simplistic for the complexities of modern life, with its large corporations and controversies involving multi-state elements. A new jurisdictional rule was necessary. It was formulated when the United States Supreme Court dispensed with the presence rule and redefined the nature and extent of a state’s power to adjudicate in the case of International Shoe Co. v. Washington, 326 U.S. 310 , 66 S.Ct. 154 , 90 L.Ed. 95 (1945). In Shoe, the Court held that a state may exercise in personam jurisdiction over an out-of-state defendant when the defendant has certain minimum contacts with the forum such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. Id. at 316 , 66 S.Ct. at 158 .

Two standards derived from Shoe, the first relating to the existence of contacts between an out-of-state defendant and the forum, the second relating to notions of fair play and reasonableness. Although the standards have appeared at times to merge into one idea, they have evolved over the years to perform different functions in the due process analysis.

The first standard departs from the traditional concept, described in Pennoyer , that imposition of jurisdiction is always proper where a defendant is present in the forum. In place of that concept, the Shoe Court developed the less stringent requirement that a defendant have “minimum contacts” with the forum. Id. at 316, 66 S.Ct. at 158 . The second standard appears as a theme underlying the first. This theme expresses the Court’s belief that irrespective of the contacts upon which a state’s exercise of jurisdiction is based, jurisdiction must still be consistent with “fair play and substantial justice.” Id.

It is the first standard, contacts, that dominates both the reasoning in Shoe and in most of the subsequent jurisdiction decisions of the Court. This standard has developed to incorporate most of the rules that inhibit a state in its exercise of jurisdiction over an out-of-state defendant. It is true that in the forty years following Shoe, courts dutifully recited the fair play standard. But once courts applied the analysis developed under the contacts standard and found that minimum contacts existed, courts did not have to be concerned that jurisdiction would falter upon application of the second, fair play, standard.

The dominance of Shoe’s contacts standard diminished neither the need for nor recognition of the occasional application of the doctrine of forum non conveniens. In Gulf Oil Corp. v. Gilbert, 330 U.S. 501 , 67 S.Ct. 839 , 91 L.Ed. 1055 (1946), the United States Supreme Court acknowledged that a court may apply the doctrine and discussed the circumstances under which the doctrine is appropriate. These include both the private interest of the litigant and the public interest. Private interest considerations include the ease of access to sources of proof, the availability of witnesses, and any other practical problem that makes the trial of a case easy, expeditious, and inexpensive. Id. at 508 , 67 S.Ct. at 843 . Public *699 interest concerns focus on a court’s attention on such factors such as the administrative difficulties that result from litigation pile-ups and the burden of jury duty upon communities which have no relation to the litigation. Id. at 508-09 , 67 S.Ct. at 843 . The Gilbert decision, which came only one year after Shoe, provided the same balance to Shoe’s jurisdictional scheme that post- Pennoyer jurisprudence provided to the presence test. Forum non conveniens, although not explicitly dealt with in the jurisdictional analysis, was still the bridge that transversed the gap between constitutional doctrines of jurisdiction and problems arising from inconvenient forums.

The pre-eminence of contacts over fair play as a jurisdictional yardstick began to taper when the Court decided World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 , 100 S.Ct. 559 , 62 L.Ed.2d 490 (1980). In Volkswagen, the Court both acknowledged the existence of the fair play standard and extracted from prior case law the elements that comprise this standard. They include: (1) the burden on a defendant; (2) the forum state’s interest in adjudicating the dispute; (3) the plaintiff’s interest in obtaining convenient and effective relief, at least when that interest is not adequately protected by the plaintiff’s power to choose the forum; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several states in furthering fundamental substantive social policies. Id. at 292 , 100 S.Ct. at 564 .

Volkswagen’s accumulation of these factors transformed the fair play standard from a dutifully recited incantation to a substantial test for gauging the propriety of jurisdictional assertions. Although not applied in Volkswagen, the factors contained the sum of ideas concerning fair play and substantial justice that had developed in case law over the years. Not surprisingly, the factors included and overlapped some of the same ideas that had been developing in the doctrine of forum non conveniens. The test for jurisdiction and the test for forum appropriateness were, therefore, undergoing parallel developments. See generally Piper Aircraft Co. v. Reyno, 454 U.S. 235 , 102 S.Ct. 252 , 70 L.Ed.2d 419 (1981).

In Burger King Corp. v. Rudzewicz, 471 U.S. 462 , 105 S.Ct. 2174 , 85 L.Ed.2d 528 (1985), the Court gave real power to the fair play standard by stating that minimum contacts, even where established, may be considered in light of the Volkswagen factors to determine whether the assertion of jurisdiction comports with fair play and substantial justice. Id. at 476 , 105 S.Ct. at 2184 . At the same time, the Court discussed the function of forum non conve-niens in the context of a jurisdictional analysis. First, the Court conceded that, in most cases, the Shoe test of due process need never be implicated. Objections to jurisdiction arising from the fair play standard could be accommodated through a “means short of finding jurisdiction unreasonable.” Id. at 477 , 105 S.Ct. at 2184 . In plainer words, a court could address the concerns inherent in the fair play standard without raising those concerns to the level of a constitutional inquiry. Second, the Court noted examples of “means short of finding jurisdiction unreasonable.” Choice-of-law clashes, said the Court, may be accommodated through application of the forum’s choice-of-law rules. Similarly, a defendant claiming substantial inconvenience may seek a change of venue under the federal venue statutes or forum non con-veniens. Id.

The Burger King view of the proper place for forum non conveniens was, therefore, not so distant from the place the doctrine had occupied in the years following both Pennoyer and Shoe. The doctrine reached where the due process test of jurisdiction did not and, once again, bridged the gap between the due process test for jurisdiction and concerns about forum appropriateness. Where the law provided that bridge, there was no need for application of the Volkswagen factors. The Court made it clear, however, that where a defendant presents a compelling case that the presence of the Volkswagen factors renders jurisdiction unreasonable, then the Constitution comes into play, and the fair play *700 standard may defeat jurisdiction. 1 Id. at 477-78, 105 S.Ct. at 2184-85 .

Burger King ’s pronouncement, however strong, did not determine the outcome in that case. In Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102 , 107 S.Ct. 1026 , 94 L.Ed.2d 92 (1987), however, application of certain factors of the fair play standard defeated jurisdiction independently of considerations about the defendant’s contacts with the forum state. Id. at 114-16 , 107 S.Ct. at 1034-36 . The Court decided that a Taiwanese company which had been sued and had settled with a California plaintiff could not seek indemnification from a Japanese defendant in a California court. Specifically, the Court was influenced by: (1) the procedural and substantive policies of other nations whose interests were affected by the assertion of the state’s jurisdiction; (2) the slight interests of the Taiwanese plaintiff and the California forum in the state’s assertion of jurisdiction over the defendant; and (3) the severe burden on the Japanese defendant. Id. Justice Brennan noted in his concurring opinion that the case presented one of those rare instances in which the fair play standard defeated jurisdiction even where the defendant had purposefully availed himself of the forum. Id. at 116 , 107 S.Ct. at 1035 . The fair play standard had achieved, at long last, the independent status and power of the contacts standard. As Justice Stevens flatly stated, “An examination of minimum contacts is not always necessary to determine whether a state court’s assertion of personal jurisdiction is constitutional.” Id. at 121 , 107 S.Ct. at 1037 .

II. FAIR PLAY IN THE ABSENCE OF FORUM NON CONVENIENS

In Asahi, the fair play standard acquired — and perhaps eclipsed — the force of the minimum contacts standard. It is now clear that considerations of fair play may defeat jurisdiction even where a defendant has minimum contacts with the forum. Should the same considerations be allowed to defeat the contacts that exist between defendant and forum in the case before us today? To arrive at the answer, I invite a comparison between Asahi and this case.

In Asahi, a foreign plaintiff sought to enforce his claim against a foreign defendant in a California court. The United States Supreme Court considered both of the standards derived from Shoe, dividing on the question whether the foreign defendant had sufficient contacts with California. Nevertheless, the fair play standard of the due process clause, standing alone, foreclosed the plaintiff’s claim and defeated the court’s jurisdiction. In the case before us today, a foreign plaintiff seeks to enforce his claim against a Texas defendant. These defendants may not defeat jurisdiction based on a contacts analysis, for they have many contacts with our state. The question remains, however, whether they are entitled to the same inquiries into fair play afforded the foreign defendant in Asahi. If the answer is no, then the due process clause produces a lopsided and incorrect result: lopsided because it protects a foreign defendant from a foreign plaintiff but leaves a United States citizen exposed to liability from a similar source, incorrect because the Constitution does not afford greater protection to foreign plaintiffs than to American citizens. The answer, therefore, must logically be yes. Where the assertion of jurisdiction threatens notions of fair play and substantial justice, then the elements of fair play must be investigated, irrespective of the contacts of the defendant.

III. ABOLITION OF FORUM NON CON-VENIENS-EFFECTS ON THE FAIR PLAY ANALYSIS

I do not lightly suggest that the due process clause is, or should be, implicated in the case before this court. I am aware of Justice Brennan’s observation in Burger King that, in most cases, fair play “considerations usually may be accommodated *701 through means short of finding jurisdiction unreasonable.” Burger King, 471 U.S. at 477 , 105 S.Ct. at 2184 . It is my belief, however, that in the absence of forum non conveniens, many of those accommodations cannot be made.

Consider, for example, the Burger King Court’s statement that a defendant claiming inconvenience may seek a change of venue. Id. at 477 , 105 S.Ct. at 2184 . While transfer of venue is feasible only within a unitary judicial system, a defendant outside the system who claims substantial inconvenience may normally move for dismissal under the common-law doctrine of forum non conveniens. Forum non conveniens may indeed be a more appropriate vehicle than application of a due process analysis for taking account of defendant inconvenience. See Stravitz, Sayonara to Minimum Contacts: Asahi Metal Industry Co. v. Superior Court, 39 S.C.L.Rev. 729, 808-09 (1988). In this case, however, forum non conveniens has been abolished. No vehicle exists to take account of a defendant’s inconvenience. Consequently, the common law factors that once comprised the forum non conveniens analysis, factors that addressed complaints of inconvenience through a “means short of finding jurisdiction unreasonable,” must now be raised to the level of a constitutional inquiry and subsumed within the fair play standard of the due process jurisdictional analysis.

IV. OTHER CONCERNS

Other considerations in this case implicate the fair play standard. Although they are too numerous and complex for analysis here, they are important enough to warrant the attention of the court and the litigants. First, we are inviting into our courts disputes that may involve more substantial connections to foreign countries than to our own. Should we not stop to consider, as the Asahi court did, the possible effects of extending our laws beyond the shores of the United States? See generally Born, Reflections on Judicial Jurisdiction in International Cases, 17 Ga.J.Int’1 & Comp.L. 1 (1987).

Second, there are in this case unresolved choice of law questions that, once resolved, may diminish the interest of this state in this litigation. The plaintiffs proceed as though obtaining jurisdiction in Texas automatically confers upon them the benefits of Texas substantive law as well. As Justice Brennan made clear in Burger King when he urged consideration of choice of law principles as a “means short of finding jurisdiction unreasonable,” such a result does not automatically follow. Burger King, 471 U.S. at 477 , 105 S.Ct. at 2184 . On remand, the parties must debate choice of law before the trial court, which must again make a determination of the forum’s contacts with the plaintiff and the litigation. There is a strong possibility that a choice of law analysis will result in the application of Costa Rican law. If so, what then is Texas’ interest in adjudicating a foreign claim by foreign plaintiffs? The Volkswagen factors are clear, and they include the forum state’s interest in adjudicating the dispute as well as the interstate judicial system’s interest in obtaining the most effective resolution of controversies. Volkswagen, 444 U.S. at 292 , 100 S.Ct. at 564 . Yet the majority fails to recognize the impact of choice of law on the fair play standard. This impact should be given more careful consideration.

Finally, and most important, I have questions concerning the propriety of exercising jurisdiction over plaintiffs whose relationship to this state is so attenuated. Although the United States Supreme Court’s position on plaintiff-forum relationship has been uncertain, the law indicates a growing concern with that relationship. In two earlier cases, the Court rejected the notion that a plaintiff’s contacts with the forum should be properly included in the due process analysis. See Keeton v. Hustler Magazine, Inc., 465 U.S. 770 , 104 S.Ct. 1473 , 79 L.Ed.2d 790 (1984); Calder v. Jones, 465 U.S. 783 , 104 S.Ct. 1482 , 79 L.Ed.2d 804 (1984). In Burger King, however, the Court included the plaintiff’s interest in obtaining relief as one of the factors in the fair play analysis. Burger King, 471 U.S. at 477 , 105 S.Ct. at 2184 . And in Asahi, *702 the Court attached importance to the lack of a relationship between the plaintiff and California, stating that “[b]ecause the plaintiff is not a California resident, California’s legitimate interests in the dispute have considerably diminished.” Asahi, 480 U.S. at 114 , 107 S.Ct. at 1034 .

It appears, therefore, that a plaintiff’s relationship to the forum state constitutes a legitimate inquiry in the fair play analysis. Without a comprehensive record in this case, I decline to consider whether the plaintiffs are sufficiently connected with Texas such that their suit would not offend traditional notions of fair play and substantial justice. I believe, however, that the question ought to be investigated. 2

V. CONCLUSION

The due process test for in personam jurisdiction has developed to protect defendants from unreasonable and unfair assertions of judicial power. The dominant component of the test has concentrated on a defendant’s contacts with the forum, but the test includes another component, the recurring question whether the assertion of jurisdiction comports with constitutional guarantees of fair play and substantial justice. Although questions whether the forum is appropriate often encompass considerations of fair play, the due process test has not developed answers to these questions. Indeed, there has been no need for the test to do so, for the common law doctrine of forum non conveniens has bridged the gap between the due process test of jurisdiction and concerns about forum appropriateness. By abolishing the doctrine of forum non conveniens, the court shatters that bridge. The questions of fair play inherent in the forum non conveniens inquiry cannot now be answered unless they are answered within the context of the due process test for in per-sonam jurisdiction.

. Texas has expressly adopted Burger Kings fair play analysis. See Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662, 664 (1987); cert. denied, 484 U.S. 1063 , 108 S.Ct. 1022 , 98 L.Ed.2d 986 (1988).

. 1 also observe with interest that there may someday be a “means short of finding jurisdiction unreasonable” to answer the potential problem of foreign plaintiffs suing American defendants in American courts. Those means could come in the form of a federal law. In 1987, a bill was introduced in the House to amend the Judicial Code to provide specifically for removal to federal court actions commenced in state courts by foreign citizens against a United States citizen "for injury that was sustained outside the United States and relates to manufacture, purchase, sale, or use of a product outside the United States.” See H.R. 3662, 100th Cong., 1st Sess., 133 CONG.REC. 10,785-86 (1987). In the 101st Congress, the bill was revised somewhat and has been reintroduced. See H.R. 3406, 101st Cong., 1st Sess., 135 CONG.REC. 1124 (1989).