Petition — C & H Transportation Co. v. Jensen & Reynolds Construction Co.

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Supreme Court of the United States

C & H TRANSPORTATION CO., INC.,

Petitioner

vs.

JENSEN AND REYNOLDS CONSTRUCTION

COMPANY AND PAR INDUSTRIES, INC.,

Respondents

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

BY C & H TRANSPORTATION CO., INC.

Ralph W. Pulley, Jr.

H.N. Cunningham III

102 Metropolitan Savings Tower

5944 Luther Lane

Dallas, Texas 75225

(214) 696-0055

Attorney for Petitioner

TO THE COURT:

C & H Transportation Co., Inc. (C & H or Petitioner) presents

to the Court this Petition for Certiorari of the decision by the Fifth

Circuit Court of Appeals favorable to Respondents Par

Industries, Inc. (Par) and Jensen and Reynolds Construction

Company (Jensen):

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Court of Appeals erred in affirming the Trial

Court by concluding that no basis has been shown for exercising

jurisdiction in this case over Par in the Northern District of

Texas, Dallas Division.

2. Whether the Court of Appeals erred in affirming the Trial

Court by concluding that no basis has been shown for establishing

in personam jurisdiction in this case over Jensen in the Northern

District of Texas, Dallas Division.

3. Whether the action of the Court of Appeals is contra to this

Court’s decisions in /nternational Shoe Co. vs. Washington, 36

U.S. 310, 316 (1945); McGee vs. International Life Insurance Co.,

355 U.S. 220 (1957); Southern Pacific Transportation Co. vs.

Commercial Metals Co., 102 §.Ct. 1822, 72 L.Ed. 123 and the

Texas Supreme Court Decisions in Hall vs. Helicoptoros

Nacionales De Columbia S.A., 638 S.W.2d 870 (Tex. 1982), cert.

granted, 103 Sup.Ct. 1270, 75 L.Ed.2d 493 (1983), and U-Anchor

Advertising, Inc. vs. Burt, 553 S.W.2d 760 (Tex. 1977).

LIST OF INTERESTED PARTIES

The list as it relates to the Respondents is taken from the list

submitted to the Court of Appeals:

C &H Transportation Co., Inc., Petitioner, is a’ Texas

corporation. The parent corporation is The Tyler Corporation,

a publicly held company. The other subsidiaries and affiliates of

the Tyler Corporation are:

Tyler Corporation

C & H Transportation Co., Inc.

C & H Freightways

C & H Forwarding Co., Inc.

Tyler Pipe Industries, Inc. (Delaware)

Tyler Pipe Industries of Texas, Inc.

Wade, Inc.

Tyler Pipe Industries, Inc. (Penn.)

East Penn Foundary Co.

Tyler Plastic Co.

Swan Development Co.

M. J. Harvey Foundation

Atlas Powder Company

Hall-Mark Electronics Corp.

Kinepak, Inc.

Oniard Powder Co., Inc.

Tyler Tank Cars, Inc.

East Kentucky Explosives, Inc.

Atlas Slurry Company

Tyler Leasing Company

B&H Explosives

West Kentucky Explosives

Explo-Midwest, Inc.

Powder River Explosives

Bolt-Lock, Inc.

Dallas, Texas

Phoenix, Ariz

Dallas, Texas

Tyler, Texas

Macungie, Penn

Tyler, Texas

Dallas, Texas

Deer Park, Wash.

Dallas, Texas

Prestonsburg, KY

Dallas, Texas

Coeburn, Virginia

Madisonville, KY

Joplin, Missouri

Billings, Montana

St. Louis Prk., MN

Hazard Explosives

C & H Warehouse & Rigging, Inc.

Atlas International, Inc.

Star Export Services, Inc.

Tyler Transportation Company

Tyler Aviation, Inc.

Thurston Motor Lines, Inc.

Thurston Aviation, Inc.

Phoenix Fittings

Reliance Universal, Inc.

Leeder Chemicals, Inc.

Reliance Brooks, Inc.

Reliance Intl. Sales Corp.

Reliance Powder Products, Inc.

Reliance Universal, Inc.

Reliance Universal, Inc. of Ohio

Reliance Universal, Inc. (B.C.) Ltd.

Reliance Universal, Inc.

Reliance Universal of Louisiana

Hazard, Kentucky

Dallas, Texas

Miami, FL

Pearlington, Miss.

Charlotte, N.C.

Tyler, Texas

Louisville, Texas

California

Kentucky

Illinois

California

Illinois

New Jersey

North Carolina

Oregon

Texas

Virginia

Ohio

Canada

Louisiana

Reliance Universal of Puerto Rico, Inc. Kentucky

Reliance Universal, N. V. of Belgium Belgium

Reliance Western Hemisphere, Inc. Kentucky

To Counsel’s knowledge, Jensen and Reynolds Construction

Company has no parent or affiliate company.

Par Industries, Inc. has a parent company, Armco, Inc., a

publicly-held company. Armco has the following affiliates which

are not wholly owned by Armco to the best of Counsel’s

knowledge:

Accerex Peru

Aceros Del Sur S.A. Peru

Allied Investment Corporation Delaware

The American Life Insurance

Company of New York New York

Armco-Bundy Ror AB Sweden

Armco Industrial S.A. Ecuador

Armco Industries (Nigeria) Ltd. Nigeria

Armco Jennings Finance Limited Australia

Armco Marstell Alloy Corporation Philippines

Armco Moly-Cop S.p.A. Italy

Armco Peruana S.A. Peru

Armco Robson (Pty.) Limited South Africa

Armco Thyssen GmbH Germany

Australian Steel & Mining

Corporation Pty. Ltd. Australia

P. T. Bakne — Armco Indonesia

Bienes de Capital Imsa, S.A. de C.V. Mexico

Big Three Lincoln (U.K.) Limited Scotland

Black River Lime Company Ohio

Court Galvanizing, Inc. California

Court Galvanizing Limited Canada

D.T.F.S.LC.A. Venezuela

, Equipetrol Administracao

E Participacoes Ltd. Brazil |

Equipetrol, S.A. Brazil rE.

Equipetrol Norte Industria

E Commercio Ltd. Brazil

Falconbridge Dominicana C. por A.

Herman Smith HITCO Ltd.

IMSA National, S.A. de C.V.

Industrias National Supply C.A.

Intercontinental Insurance Agencies,

Inc.

Iron Ore Company of Canada

Mansion Management Services

Limited

Marine Mineral Industries, Inc.

Metaltuous C.A.

Middletown Enterprises, Inc.

Minera Cerro de Plata, S.A. de C.V.

Northern Land Company

Nuovi Tubi Brindisi SpA

Obras Civiles e Industrias C.A.

Oregon Metallurgical Corporation

Productos Metalicos Armco S.A.

Prolansa

Reserve Mining Company

Wilbur Smith and Associates

Limited

State Surety Company

Technocargo-Transportes

Especializados Ltd.

Torcad Limited

Dominican

Republic

United Kingdom

Mexico

Venezuela

Puerto Rico

Delaware

Bermuda

Philippines

Venezuela

Ohio

Mexico

Minnesota

Italy

Ecuador

Oregon

Ecuador

Peru

Minnesota

Canada

lowa

Brazil

Canada

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ..................

ET aT I cinch sera benitiobocneanankconsednsbenyetintousensecenes

STATEMENT OF GROUNDS FOR JURISDICTION ..

CONSTITUTIONAL PROVISIONS AND

Vii

TABLE OF AUTHORITIES

CASES:

Hall vs. Helicopteros Nacionales De Columbia S.A.

638 S.W. 2d 870 (Tex. 1982), cert. granted

103 S.Ct. 1270, 75 L.Ed.2d 493 (1983).........ccccccceees 6,8,11

International Shoe Co. vs. Washington

36 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95

(CRESS re ACHR A at PE ME 7,9,11

Jetco Electronic Industries, Inc. vs. Gardiner

ipa ae ve Merc 2 A: cane 2

Kulko vs. California Superior Court

[436 U.S.] at 92, 56 L.Ed.2d 132, 98 S.Ct. 1690........... 5,8

Louisville & N.R.R. vs. Central Iron & Coal Co.

265 U.S. 59, 70, 44 S.Ct. 441, 444, 68 L.Ed. 900

ahs dec headliscctaica dc iedipdeisieahts bitencapansiieiaiaaapbasnieanntssesabadéadoabestid 6

McGee vs. International Life Insurance Co.

DD iain shat pcincstenpiadiancinasminctobes 5,8,9,10,11

Milliken vs. Meyer

311 U.S. 457, 463 61 S.Ct. 339, 85 L.Ed. 278 (1940)...... 7

Navarro vs. Sedco, Inc.

Be ooo is ccs cacsccncnonsesoncovsnnnazumongaubeens 6

O’Brien vs. Lanpar Company

a, adnan egusnnsacanvsonsvecceciin’ 7,9,11

Prejean vs. Sonatrach, Inc.

i ce EE EE GY, HEME ai cccscnsccccecccccsvcoarscccksonenpenenes 6

Shafer vs. Heitner

433 U.S. 186, 211 n. 37 53 L.Ed. 2d 683, 97,

aR EE MET TU voy bscecdinliclsiaiahaonedaditiahbandisipbastictisbepovicieslbnati 8

Vill

TABLE OF AUTHORITIES (Continued)

Page

Southern Pacific Transportation Co. vs. Commercial

Metals Co.

102 S.Ct. 1822 72 L.Ed. 123 reversing 642 F.2d 263....... 6

U-Anchor Advertising Inc. vs. Burt

FE ee FE Es BO i iciessintincticinriinronmsnenveniones 5,7,11

World-Wide Volkswagon Corp. vs. Woodson

IS Be I ahi chnicnntiaintaiiciscetasindnaaionianbicdaoneatanant 8,10,11

STATUTES:

RNAS OTe ae nee RIE rere O 3

RAs MII niin csniicn: nee easiliecepideguiciappidadaiabiiaiendesemabineas 3

Slee SII ichiscssenitiinisinsjenseansenahieidbioastsapacseceatibamancataitaadbict 3

i I AUT 2 aeckinitiea snnnteheticntetipsiasdnihgsitdtieiesenideciecaiais 2

Fe Rss NE IE entisitinieheuvndndpinttnsihvaciniesepienmiecbaaesaiaall 2

Vernon’s Ann. Tex. Civ. Stat. art 2031Db................cecee0e 9,10

UNITED STATES CONSTITUTION:

Selects MCI, MINE, Bi cncsasbinininccteunsanicacdenamsatdhidesepsiiien 2

ren

IN THE

Supreme Court of the United States

C & H TRANSPORTATION CO., INC.,

Petitioner

vs.

JENSEN AND REYNOLDS CONSTRUCTION

COMPANY AND PAR INDUSTRIES, INC.,

Respondents

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

BY C & H TRANSPORTATION CO., INC.

STATEMENT OF GROUNDS FOR JURISDICTION

The date of the decree sought to be reviewed by Petitioner ws

November 21, 1983. This is also the time the decision was

entered by the court.

The statutory provision believed to confer on this Court

jurisdiction to review the decree in question by Writ of Certiorari

is 28 U.S.C. §1254(1) and Rule 17(a) and (c), Supreme Court

Rules.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

These include 49 U.S.C. §§10743, 10761 and 10762; Vernon's

Ann. Texas Civ. St. art. 2031b, §4; and U.S.C.A. Const. Amend.

14, 28 U.S.C. §1337, 28 U.S.C. §1254(1).

STATEMENT OF THE CASE

This civil action was initially filed by C &H under the

provisions of Title 28 U.S.C. §1337 which provides the District

Courts have original jurisdiction of any Civil Action arising

under any act of Congress relating to commerce. C & H as a

regulated motor carrier, performed transportation services in

interstate commerce under tariffs filed with the Interstate

Commerce Commission. After an adverse order by the United

States District Court dismissing the case without prejudice upon

motions by Respondents, Petitioner appealed the lower Court's

order to the Fifth Circuit Court of Appeals. Because there was

a complete dismissal and termination of the case, the trial court

order was final and appealable. Jetco Electronics Industries, Inc.

vs. Gardiner, 473 F.2d 1228, 1231 (Sth Cir. 1973).

C & H originally instituted this suit seeking payment of freight

charges due from Par as consignor and Jensen as consignee for

regulated transportation services related to the transporting by

C & H of products identified on the Bill of Lading contracts and

related freight bills as various Crane Parts, i.e. a Boom Section,

a Spreader Bar, Cat Walks, Cable Guide, etc. Shipments moved

from facilities of Par at New Iberia, Louisiana consigned to Foss

Alaska Line c/o Jensen, Seattle, Washington. The balance of the

charges due to C & H are sought in the total sum of $30,191.73.

The freight bills issued are attached to the Complaint. (TR 1-34).

Par filed a Motion to Dismiss and/or Motion for Summary

Judgment asserting lack of jurisdiction and/or improper venue

(TR 37-53). C & H filed an Affidavit in opposition with copies

of its dispatch records for the shipments attached. (TR 54-68).

Jensen filed a Motion to Dismiss or, alternatively, to quash the

return of service of summons with a Brief in support. (TR 69-81).

C & H filed an Affidavit in opposition to the Jensen Motion

(TR 82-97).

The Trial Court filed an Order on May 24, 1983, granting the

Motions to Dismiss by Par and Jensen and dismissing the case

without prejudice. (TR 96-99). C & H perfected its Appeal from

this Order to the Fifth Court of Appeals. On November 21, 1983,

the Fifth Court of Appeals affirmed.

C & H isa motor common carrier regulated by the Interstate

Commerce Commission and provides transportation service to

the shipping public charging rates authorized under published

tariffs. C & H is a Texas corporation and maintains its principal

office and place of business in Dallas County, Texas. The action

arises under the Revised Interstate Commerce Act, Title 49,

U.S.C.A. §10743, §10761 and §10762.

Par is a Louisiana corporation with its principal place of

business in New Iberia, Louisiana. (TR 41). Par is the consignor

named on each Bill of Lading and the related freight bills issued

for the transportation services provided by C & H. (TR 6-34).

The shipments were loaded by Par personnel with Par equipment

at Par’s facilities in New Iberia. (TR 56). Par has no office or place

of business in Texas. (TR 41). C & H was lead to believe at all

times that Par was the consignor of the shipments. (TR 56).

Jensen is a California corporation where its principal place of

business is located. It has no office in Texas. (TR 93). David

Jensen is apparently an officer in Jensen and Manitou

Equipment Corp. The Bills of Lading and related freight bills

named the consignee as Foss Alaska in care of Jensen. In June,

1981, David Jensen contacted the C & H terminal in Tacoma,

Washington regarding transporting the Crane from Par’s

facilities at New Iberia to Jensen at the Foss Alaska Lines facility

in Seattle. Jolly, the C & H terminal manager at Tacoma, and

Jensen contacted David Wilson, C & H manager-Heavy Haul

Division at Dallas to discuss the shipment. Jolly and Wilson

contacted the C & H Harvey, Louisiana Terminal for the

dispatch, and a Dispatch Order was issued. (TR 84, 88). At all

times pertinent herein, C & H was lead to believe that Jensen was

the consignee of the shipments. Foss Alaska Line was represented

to be the agent of Jensen. Foss receipted for the shipments at

Seattle as agent for Jensen. C & H understands that Foss is a

Steamship Company hired by Jensen to transport the Crane parts

from Seattle to Alaska. (Tk 84). Pursuant to billing instructions

given C & H by David Jensen, the freight charges were to be billed

to a third party, Manitou Equipment Corp., Seattle,

Washington. In August, 1981, C & H received a letter from

David Jensen on the letterhead of Manitou Equipment Corp.

(TR 90). David Jensen signed as president of Manitou

Equipment Corp. for Jensen. The letter protested the freight bill

for transporting the Crane claiming an original quote for the

service in the sum of $21,556 for nine (9) trucks while the freight

bills had a total of “$42,895.72”. It was felt the charge was

: “exorbitant”. After prolonged collection efforts in January,

f 1982, C & H received a check by mail from Jensen at C & H’s

Dallas, Texas, facility in partial payment of the freight charges.

The check is of record. (TR 97) The check is payable to C & H

Transportation Co., P.O. Box 270535, Dallas, Texas 75227 and

is issued for the sum of $30,000. The check was mailed to the

address stated on the freight bills by C & H as the place where

payment of the freight bills was to be made. (TR 30-34). Jensen

claims that Manitou contracted with Transmaster, Inc., a freight

forwarder in Seattle, Washington for shipment of the goods from

New Iberia to Foss Alaska Lines in Seattle. (TR 94). Jensen

claims a contract was made with Transmaster for a specific price

not to exceed $30,000 in shipping costs. (TR 94). Transmaster

does not appear on any shipping documents of C & H and was

not mentioned as a factor until the Affidavit filed by Jensen in

support of its motion. C & H had no dealings with Transmaster.

(TR 85). The contract for transportation was performed in part

in the Northern District of Texas in that C & H transported the

goods from New Iberia through the Northern District of Texas

to Seattle (TR 85) and partial payment of the freight charges was

made by check issued by Jensen payable to C & H at Dallas, and

mailed to and received by C & H in Dallas County, Texas in the

Northern District of Texas.

ARGUMENT

The U.S. Supreme Court cases of McGee vs. International Life

Insurance Co., 355 U.S. 220 (1957) and Kulko vs. California

Superior Court, [436 U.S.] at 92, 56 L.Ed.2d 132, 98 S.Ct. 1690,

contain important, app!icable principals, but were not cited by

the Court of Appeals. The enlarged interpretation and

application of Article 2031(b) by the Texas Supreme Court in

U-Anchor Advertising Inc. vs. Burt, 553 S.W.2d 760 (Tex. 1977)

and related decisions greatly expanded the Texas Long-Arm

Statute. The principals of such cases were not properly applied

by the Fifth Court of Appeals to the situation presented in the

case at bar.

ie 2p si ps

If the reasoning and decision of the Court of Appeals affirming

the Trial Court is correct, then C & H must bring a lawsuit in

Louisiana against the consignor and a lawsuit in California or

Washington against the consignee. Yet, the interstate judicial

system has an interest in obtaining the most efficient resolution

of controversies.

Respondent Par Industries, Inc. is the consignor shown on the

C &H bill of lading contract. The shipment was loaded on

C & H trucks by Par equipment, at a Par facility and by Par

employees. Par could have protected itself as consignor by

signing Section 7 of the bill of lading. This was not done. Southern

Pacific Transport Co. vs. Commercial Metals Co.,102 S.Ct. 1822,

72 L.Ed. 123 reversing 642 F.2d 263.

Respondent Jensen & Reynolds Construction Company was

consignee and made a partial payment of the freight charges to

C & H. The consignee is also liable for the tariff charges for the

C & H services, Louisville & N.R.R vs. Central Iron & Coal Co.,

265 U.S. 59, 70, 44 S.Ct. 441, 444, 68 L.Ed. 900 (1924).

Par, as consignor, and Jensen, as consignee, are responsible,

jointly and severally for the payment of the freight charges to

C & H. This virtual absolute liability is important to emphasize

particularly with respect to C & H’s interest in effective and

convenient relief in the forum of its choice.

The reach sanctioned by the State Long-Arm Statute is a

question of Texas Law, Prejean vs. Sonatrach, Inc., 652 F.2d

1260 (Sth Cir. 1981). However, the interpretation of the due

process clause as applied to the service of process under the Texas

Long-Arm Statute is not binding on this Court, Navarro vs.

Sedco, Inc., 449 F.Supp. 1355 (1978).

The Texas Supreme Court reviewed its interpretation and

application of Art. 2031(b), VACS, and the cases relating to that

iii iii a. ”

” I o .

, ae

Statute in Hall vs. Helicopteros Nacionales de Colombia S.A., 638

S.W.2d 870(Tex. 1982), cert. granted, 103S.Ct. 1270, 75 L.Ed.2d

493 (1983). The Texas Court withdrew an earlier opinion 25

Tex.Sup.Ct. Journ. 190 (1982). The Court reaffirmed its opinion

in U-Anchor Advertising, Inc. vs. Burt, supra, in which the Court

held that Art. 2013b VACS reaches as far as the Federal

Constitutional requirements of due process will permit. This

permits the Courts “ ... to focus on the constitutional limitations

of due process rather than to engage in technical and abstruse

, 99

attempts to consistently define ‘doing business’ ”’.

The Texas Court also reaffirmed its approval in U-Anchor of

the “three-prong” test set out in O’Brien vs. Lanpar Company,

399 S.W.2d 340 (Tex. 1966). That three-prong test is:

(1) The nonresident defendant or foreign corporation must

purposefully do some act or consummate some transaction in

the forum state;

(2) The cause of action must arise from or be connected

with, such act or transaction; and

(3) The assumption of jurisdiction by the forum state must

not offend traditional notions of fair play and substantial

justice; consideration being given to the quality, nature, and

extent of the activity in the forum state, the relative

convenience of the parties, the benefits and protection of the

laws of the forum state afforded the respective parties, and the

basic equities of the situation.

While the Texas Court recognized /nternational Shoe Co. vs.

Washington, 326 U.S. 310, 316, 66 S.Ct 154, 90 L.Ed. 95 (1945),

quoting Milliken vs. Meyer, 311 U.S. 457, 463 61 S.Ct. 339, 85

L.Ed. 278 (1940), the Texas Court concluded that the U.S.

Supreme Court had broadened the parameters of due process to

“allow inquiry into other ‘relevant factors,’ " citing

World-Wide Volkswagen Corp. vs. Woodson, 444 U.S. 286

(1980).

Citing /nternational Shoe, supra, this Court in commenting

about the burden of a non-resident Defendant in World-Wide at

292, stated:

“*.. the burden on defendant, while always a primary

concern, will in an appropriate case be considered in light

of other relevant factors, including the forum State’s interest

in adjudicating the dispute, «see MCGEE vs.

INTERNATIONAL LIFE INS. CO. 355, U.S. 220, 223, 2

L.Ed.223, 78 S.Ct. 199 (1957); the Plaintiff's interest in

obtaining convenient and effective relief, see KULKO vs.

CALIFORNIA SUPERIOR COURT, [436 U.S.] at 92, 56

L.Ed.2d 132, 98 S.Ct. 1690, at least when that interest is not

adequately protected by the Plaintiff's power to choose the

forum, c.f. Shafer vs. Heitner, 43 U.S. 186, 211, n. 37, 53

L.Ed.2d 683, 97 S.Ct. 2569 (1977); the interstate judicial

system’s interest in obtaining the most efficient resolution

of controversies; and the shared interest of the several States

in furthering fundamental substantive social policies, see

KULKO vs. CALIFORNIA SUPERIOR COURT, supra, at

93, 98, 56 L.Ed.2d 132, 98 S.Ct. 1690.”

These conclusions in World-Wide make provision to look at

the State’s interest in adjudicating this dispute between C & H

and Respondents and C &H’s interest in effective and

convenient relief. The Texas Court in Hall made the same

observation in finding that Texas had an interest in obtaining the

most efficient resolution of controversies and that Hall had a

genuine interest and desire in obtaining convenient and effective

relief.

The Texas Court also made reference to the U.S. Supreme

Court decision in McGee vs. International Life Insurance Co., 355

U.S. 220 (1957). In that case, this Court recognized there might

be some inconvenience to the Defendants, but based on the

situation, due process would not be offended.

In affirming the motions of respondents in this case, the Court

of Appeals failed to properly apply pertinent considerations.

Such include the complete transaction which involved partial

consummation of the contract by Jensen in the payment of a

portion of ihe freight charges to C & H at its general office in

Dallas in accordance with the freight bills issued from Dallas by

C & H. Art. 2031b, VTCS, as recognized by the Texas Supreme

Court in the Hail decision, provides that the non-resident must

have a contract with a Texas resident performable in part by

either party in Texas to constitute “doing business” in the State.

The transaction was finally negotiated over the telephone by a

representative of Jensen and a C & H representative in Dallas.

C & H picked up the load from Par at its facilities in New Iberia,

Louisiana, transported the shipment through the Northern

District of Texas, delivered it in Seattle, Washington, to the agent

of Jensen as consignee, and C & H received partial payment of

the freight charges at its Dallas office by a Jensen check payable

to C & H at its Dallas address and received in Dallas.

Turning to the O'Brien case, supra, and the three-prong test,

and contrary to the Court of Appeals interpretation and

application of same, it is evident the transaction was partially

consummated in Texas as the forum State; the cause of action did

arise from and was connected with the transaction; and the

assumption of jurisdiction by Texas as the forum State does not

offend traditional notions of fair play and substantial justice

based on the elements given consideration in part (3) of the test.

In addition, this Supreme Court has broadened the parameters

of due process to permit inquiry into other “relevant factors”.

Texas is certainly a reasonable location to require Respondents

to defend the particular suit. C & H is a Texas corporation and

has its general office in Dallas which creates an interest for Texas

in adjudicating the dispute. C & H has a definite interest in

obtaining convenient and effective relief, particularly

considering the nature of the suit and the absolute liability by

Respondents as consignor and consignee. There is nothing

reasonable or fair about requiring C & H, under the conditions

existing here, to bring a law suit in Louisiana and a law suit in

California or Washington resulting in separate litigation and a

very inefficient resolution of the controversy. These are relévant

factors under the World-Wide and McGee decisions, supra.

In the McGee case, McGee, a California resident, sued a Texas

insurance company as a beneficiary under a life insurance policy.

The insurance company’s only contact had been its mailing of the

policy to the State, and its receipt of premium payments from the

decedent. The U.S. Supreme Court addressed the relative

convenience of the parties and based its decision permitting the

maintenance of the suit in California on the State’s interest in

providing effective redress, and the fact that an individual

claimant could not overcome the difficulties of maintaining an

action in a foreign forum. The Court also recognized the

inconvenience caused to the Defendant, but based on the

contacts of Defendant, due process was not offended.

It certainly cannot be said that this transaction between C & H

and Respondents is totally unrelated to Texas. With all of the

factors here involved, including the part payment of the freight

charged by Jensen, Texas is the proper forum. Service was proper

under Art. 2031b of the Texas Statute and due process is not

offended by requiring Respondents to defend this action in the

Northern District of Texas at Dallas. There is much more

involved here than just the goods being transported through

Texas from origin to destination. The fact is that in implementing

the contract, this was done by C & H. With the other contacts,

related specifically to this transaction, the proper and convenient

forum is in the Northern District of Texas at Dallas. Par is an

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integral part of the transaction and is a part of the Bull of Lading

contract as consignor. The liability of the consignor and

consignee in the situation presented here by C & H is joint and

several.

The Court of Appeals found that any nexus requirement in

Hall vs. Helicopteros Nacionales, supra, is fully satisfied.

However, the Court erroneously failed to conclude that the

telephone call between C & H and Jensen initially arranging the

transaction, the transporting of the commodities through the

Northern District of Texas, the mailing of a check by Jensen in

partial payment to C & H at Dallas, Texas, as specified in the

shipping document, and the receipt of the check by C & H at

Dallas, was not sufficient to satisfy the first and third

requirements of the three-pronged test stated by the Texas

Supreme Court.

Because the basis for the litigation involves interstate

commerce, the collection of freight charges promulgated by

interstate tariffs, and the factual elements properly point to the

Northern District of Texas as a proper place for this litigation

involving an interstate commercial transaction, this petition for

certiorari should be granted. The Court of Appeals decision is

contrary to the decision of this Court in McGee and in

International Shoe, and the Texas Supreme Court in Hail,

U-Anchor, O’Brien, and the relevant language of this Court in

World-Wide Volkswagen Corp.

Respectfully submitted,

Ralph W. Pulley, Jr.

H.N. Cunningham III

102 Metropolitan Savings Tower

5944 Luther Lane,

Dallas, TX 759p5

Nave ala 964

Pulley, Jr. 5 (

Attorney sek Ki Petitioner

CERTIFICATE OF SERVICE

I certify that a copy of this Petition for Writ of Certiorari has

been served on Counsel for Respondents Barry J. Brooks and

David M. Taylor by placing a copy of same in the United States

Mail, postage prepaid, on this .{{@ day of February, 1984,

addressed to Brooks & Brooks, 8300 Douglas, Suite 800, Dallas,

Texas 75225 and 2001 Bryan Tower, Suite 1000, las, Texas

75201, respectively.

alph W. Pulley, Jr.

A. Decision of Fifth Circuit Court Appeals.

B. Order United States District Court Northern District of

Texas.

C. List of Constitutional Provisions and Statutes.

APPENDIX

A-l

C & H TRANSPORTATION CO., INC.,

Plaintiff-Appellant,

JENSEN AND REYNOLDS CONSTRUC-

TION COMPANY and Par Industries,

Inc., Defendants-Appellees.

No. 83-1425

Summary Calendar.

United States Court of Appeals

Fifth Circuit.

Nov. 21, 1983.

Motor common carrier brought action

for payment of freight charges for trans-

portation of crane parts. The United

States District Court for the Northern Dis-

trict of Texas, A. Joe Fish, J., granted

motions to dismiss defendant Louisiana

consignor and defendant California corpo-

ration which had contracted to rent crane

parts, and carrier appealed. The Court of

Appeals, Johnson, Circuit Judge, held that:

(1) District Court lacked statutory jurisdic-

tion over consignor, and (2) it could not be

A-2

said that corporation purposely availed it-

self of privilege of conducting business

within Texas or that it invoked benefits and

protections of Texas law.

Affirmed.

1. Federal Courts 701

In motor common carrier’s action for

payment of freight charges for transporta-

tion services it performed, grant by United

States District Court for the Northern Dis-

trict of Texas of nonresident defendant

consignor’s motion to dismiss on basis of

lack of statutory jurisdiction would be af-

firmed absent record evidence that consign-

or entered into contract with carrier. Ver-

non’s Ann.Texas Civ.St. art. 2031b, § 4.

2. Constitutional Law = 305(6)

In motor common carrier’s action for

payment of freight charges for transporta-

tion of crane parts, exercise of jurisdiction

by Texas over California corporation which

contracted to lease crane parts would not

comport with basic due process require-

A-3

ments of United States Constitution where

corporation’s only contacts with Texas con-

sisted of conference telephone call, move-

ment of parts through Texas and mailing

of check to carrier in Texas. U.S.C.A.

Const.Amend. 14.

3. Federal Courts 71

For court to exercise jurisdiction over

nonresident defendant, defendant must

have some minimum contact with state re-

sulting from affirmative act or acts on its

part and it must not be unfair or unreason-

able to require nonresident defendant to

defend suit in forum. U.S.C.A. Const.

Amend. 14.

Appeal from the United States District

Court for the Northern District of Texas.

Before GEE, POLITZ, and JOHNSON,

Circuit Judges.

JOHNSON, Circuit Judge:

Plaintiff C & H Transportation, Inc. (C &

H) appeals the district court’s grant of the

—

motions to dismiss of defendants Par In-

dustries, Inc. (Par) and Jensen & Reynolds

Construction Co. (Jensen & Reynolds) on

the basis of lack of in personam jurisdic-

tion. This Court affirms the district

court’s grant of the motions to dismiss of

both defendants.

Plaintiff C & H, a motor common carrier,

brought this action under the Revised In-

terstate Commerce Act,!' seeking payment

of freight charges for transportation serv-

ices it performed. These services involved

movement of crane parts from New Iberia,

Louisiana, to Seattle, Washington. C & H

is a Texas corporation with its principal

office and place of business in Dallas Coun-

ty, Texas. Defendant Par is a Louisiana

corporation with its principal place of busi-

ness in New Iberia, Louisiana. Par neither

has an office nor conducts business in the

State of Texas. Par was the consignor

that loaded the equipment at its facilities in

New Iberia. Defendant Jensen & Reyn-

olds is a California corporation with its

principal place of business in California.

1. 49 USC. §§ 10743, 10761 & 10762.

A-5

Jensen & Reynolds has no office in Texas,

has no license to do business in Texas, and

has not conducted business in Texas.

Jensen & Reynolds contracted with Mani-

tou Equipment Corp. (Manitou) in the State

of Washington to lease crane parts for use

in construction jobs. At that time, Mani-

tou’s crane parts were in the possession of

defendant Par in New Iberia, Louisiana.

Jensen & Reynolds claims that Manitou

contracted with Transmaster, Inc., a

freight forwarder in Seattle, Washington,

to ship Manitou’s equipment to Foss Alas-

ka Lines (Foss) in Seattle.2 According to

David Jensen, president of Jensen & Reyn-

olds, Manitou, after obtaining Jensen’s ap-

proval, contracted with Transmaster for a

specific price not to exceed $30,000 in ship-

ping costs. C & H denies any knowledge

of such a contract as well as any dealings

2. C & H claims that it was led to believe that

Jensen & Reynolds was the consignee of the

shipment and that Foss was Jensen & Reynolds’

agent. Apparently, however, Foss was the

steamship company hired by Jensen & Reynolds

to transport the crane parts from Seattle to

Alaska.

A-6

between itself and Transmaster. C & H

notes that Transmaster did not appear on

any of its shipping documents.

Some period of time after Manitou al-

legedly contracted with Transmaster,

David Jensen called Manitou to inquire

where his leased equipment was. Accord-

ing to Jensen, Manitou put him in touch

with Transmaster who in turn put him in

touch with C & H’s terminal manager in

Tacoma, Washington. A three-way confer-

ence call then took place involving C & H’s

offices in Washington, C & H’s offices in

Dallas, and Jensen.* In addition to inform-

ing C & H where the equipment was to be

sent and to whom it was to be delivered,

Jensen told C & H to send the freight bill

to Manitou.

C & H transported the equipment from

New Iberia to Seattle, Washington via

northern Texas. After receiving C & H’s

bill from Manitou in August 1981, Jensen

3. Jensen claims that it was his understanding

that C & H had assumed Transmaster’s obliga-

tions to ship the equipment.

A-7

complained to Manitou about the charges

which exceeded $30,000. According to

Jensen, Manitou told him to send a written

complaint to C & H. Jensen then wrote C

& H a letter protesting the freight bill on

Manitou stationery and signed “David Jen-

sen, President.” Although Jensen meant

to sign as president of Jensen & Reynolds,

C & H understood that Jensen had signed

in the capacity of president of Manitou. In

January 1982, Jensen & Reynolds mailed a

check for $30,000 to C & H at its offices in

Dallas, Texas.

[1] Plaintiff alleges jurisdiction over

both defendants pursuant to the Texas

“long-arm’”’ statute, Article 2031b(4), which

provides, in pertinent part, that any foreign

corporation “shall be deemed doing busi-

ness in this State by entering into contract

by mail or otherwise with a resident of

Texas to be performed in whole or in part

by either party in this State ....” The

district court granted Par’s motion to dis-

miss on the basis of a lack of statutory

jurisdiction. The grant of the motion to

4. The freight bills totaled $42,895.72.

dismiss as to Par must be affirmed. There

is no record evidence that Par entered into

a contract with C & H. Indeed, C & H

makes no claim that it contracted with Par.

The district court was therefore correct in

granting Par’s motion to dismiss for C &

H’s failure to satisfy the requirements of

Article 2031b(4).

[2,3] As for Jensen & Reynolds, the

district court assumed compliance with the

statutory requirements® but granted the

motion to dismiss on the constitutional ba-

sis of a lack of “minimum contacts” be-

tween Jensen & Reynolds and the State of

Texas. The court found that it would of-

fend the traditional notions of fair play and

substantial justice for Texas to exercise

jurisdiction over Jensen & Reynolds on the

basis of no more than (1) a three-way con-

ference call involving Jensen in the State of

Washington, C & H in the State of Wash-

ington, and C & H in Texas concerning

details of shipping goods and (2) movement

of the goods through the State of Texas.

5. The court credited plaintiff's contention that a

contract was formed between C & H and Jensen

& Reynolds during the course of the three-way

conference call.

A-9

The court further found that C & H’s

choice of a route through Texas was not an

act which was purposefully conducted by

Jensen & Reynolds in Texas. The court

therefore found that the first and third

prongs of the O’Brien test ® had not been

satisfied.

We agree with the district court that the

exercise of jurisdiction over Jensen &

Reynolds by the State of Texas does not

6. The three-prong test to determine whether

constitutional due process requirements have

been met when a state exercises jurisdiction

over the person of a defendant was set out in

O'Brien v. Lanpar Co., 399 S.W.2d 340, 342 (Tex.

1966). The test is as follows:

(1) the nonresident defendant or foreign cor-

poration must purposefully do some act or

consummate some transaction in the forum

state;

(2) the cause of action must arise from, or be

connected with, such act or transaction;

and

(3) the assumption of jurisdiction by the fo-

rum state must not offend traditional no-

tions of fair play and substantial justice;

consideration being given to the quality,

nature, and extent of the activity in the

forum state, the relative convenience of the

parties, the benefits and protection of the

laws of the forum state afforded the respec-

tive parties, and the basic equities of the

situation.

A-10

comport with the basic due process require-

ments of the United States Constitution.

For purposes of clarity, this Court notes

that although the district court spoke in

terms of a three-pronged test for meeting

the requirements of constitutional due

process, the constitutional test is only two-

pronged. The defendant must have some

minimum contacts with the state resulting

from an affirmative act or acts on its part,

and it must not be unfair or unreasonable

to require the nonresident defendant to de-

fend the suit in the forum. Hydrokinetics,

Inc. v. Alaska Mechanical, Inc., 700 F.2d

1026, 1028 (5th Cir.1983); Southwest Off-

set, Inc. v. Hudco Publishing Co., 622 F.2d

149, 152 (5th Cir.1980). Since the instant

case does not involve the second prong of

the O’Brien test (the requirement of a

nexus between the cause‘of action and the

defendant's contacts with the state),’ the

district court’s reference to the test as

7. Here, any nexus requirement is fully satis-

fied—C & H's cause of action for unpaid freight

charges arises from Jensen & Reynolds contacts

with Texas (phone call, movement of its goods

through Texas, and mailing of a check).

A-1]

three-pronged in no way impairs its analy-

sis.* It is beyond question that at least one

prong—the affirmative act prong—is not

satisfied in the instant case. In Hanson v.

Denckla, 357 U.S. 235, 78 S.Ct. 1228, 1240,

2 L.Ed.2d 1283 (1958) the Supreme Court

stated: “{I]t is essential in each case that

there be some act by which the defendant

purposely avails itself of the privilege of

conducting activities within the forum

State, thus invoking the benefits and pro-

tections of its laws.”

8. Although in Hall v. Helicopteros Nacionales,

638 S.W.2d 870 (Tex.1982), cert. granted, —

U.S. ——, 103 S.Ct. 1270, 75 L.Ed.2d 493 (1983),

the Texas Supreme Court extended the reach of

article 2031b to the limits of due process, lan-

guage in the opinion indicates that the second

prong, the nexus requirement, is constitutional-

ly required in cases where the nonresident de-

fendant only maintained single or few contacts

with the forum:

The second prong is useful in any fact situa-

tion in which a jurisdiction question exists;

and is a necessary requirement where the

nonresident defendant only maintained single

or few contacts with the forum. However,

the second prong is unnecessary when the

nonresident defendant's presence in the fo-

rum through numerous contacts is of such a

nature, as in this case, so as to satisfy the

demands of the ultimate test of due process.

A-12

Here, it cannot be said that Jensen &

Reynolds purposely availed itself of the

privilege of conducting business within

Texas or that it invoked the benefits and

protections of Texas law. Jensen & Reyn-

olds’ only contacts with Texas consisted of

the three-way conference call (with Jensen

in the State of Washington), the movement

of the goods it had leased through Texas

on their way to Washington, and the send-

ing by mail of a $30,000 check to C & H in

Dallas. As for the conference call involv-

ing C & H’s Dallas offices, the call was

Accordingly through the statutory authority of

Art. 2031b Tex.Rev.Civ.Stat.Ann. there re-

mains the single inquiry: is the exercise of

jurisdiction consistent with the requirements

of due process of law under the United States

Constitution?

Hall, 638 S.W.2d at 872. [Certiorari was grant-

A-13

apparently initiated by the C & H terminal

manager in Tacoma, even though it was

Jensen who had contacted C & H in Taco-

ma to inquire about the equipment. Even

attributing the initiative for this call to

Jensen & Reynolds, this sole use of inter-

state commerce is “insufficient to be char-

acterized as purposeful activity invoking

the benefits and protections of the forum

state’s laws.” See Hydrokinetics, 700

F.2d at 1029 (extensive communications be-

tween Texas and Alaska in the develop-

ment of the contract insufficient to count

as purposeful activity). Secondly, the rout-

ing of the equipment through Texas was

undoubtedly not the result of any affirma-

tive act by Jensen & Reynolds—C & H, as

carrier, was responsible for the choice of

route. Performance—delivery of the

equipment—was not to occur in Texas, but

in the State of Washington. Compare Hy-

drokinetics, 700 F.2d at 1029 & 1030 [dis-

tinguishing the case at bar from Product

Promotions, Inc. v. Cousteau, 495 F.2d

483 (5th Cir.1974) in that the contract in

Cousteau required delivery of the prdduct

in Texas}. Finally, the fact that Jensen &

A-14

Reynolds mailed a payment check to C & H

in Texas can hardly be termed significant

in terms of a purposeful availment of the

benefits of the forum state. In Hydroki-

netics, 700 F.2d at 1029, this Court did not

“weigh heavily” the fact that the defendant

might have mailed a check to the forum

state in payment for the goods received.

The significant factor here, as in Hydroki-

netics, is that only a single, isolated trans-

action ®—Jensen & Reynolds’ sole contact

with the forum state—was involved. In

sum, the totality of Jensen & Reynolds’

contacts with Texas do not support an in-

ference of purposeful availment. The mere

use of interstate commerce on a single

occasion involving the forum, the fortui-

tous routing of equipment through the fo-

rum on the way to its destination in Wash-

ington, and the mailing of a payment check

to the forum do not constitute the mini-

mum contacts necessary to constitutionally

9. The record does not reveal that Jensen &

Reynolds had other contacts with Texas, nor

dges plaintiff contend that Jensen & Reynolds

regularly seeks the services of Texas residents.

A-15

exercise jurisdiction over Jensen & Reyn-

olds. The judgment of the district court is

affirmed.

AFFIRMED.

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

C & H TRANSPORTATION

CO., INC.

Plaintiff,

VS. | CIVIL ACTION NO.

JENSEN AND REYNOLDS CA 3-82-1336-G

CONSTRUCTION COMPANY and

PAR INDUSTRIES, INC.,

Defendants.

ORDER

The motions to dismiss of defendants Jensen and Reynolds

Construction Company and Par Industries, Inc. are GRANTED

on the ground that the Court’s jurisdiction over these

non-resident defendants has not been established.

When this Court’s jurisdiction is challenged by a defendant,

the burden is on plaintiff to establish jurisdiction. Familia De

Boom v. Arosa Mercantil, S.A., 629 F.2d 1134, 1138 (Sth Cir.

1980). Plaintiff asserts jurisdiction pursuant to the Texas

long-arm statute, article 2031b (4), which provides, in pertinent

part, that “any foreign corporation ........ shall be deemed doing

business in this State by entering into a contract by mail or

otherwise with a resident of Texas to be performed in whole or

in part by either party in this State ....... .” According to plaintiff,

jurisdiction exists in this case (1) because a representative of

plaintiff conversed with a representative of Jensen on long

distance telephone regarding the shipment in question, the

conversation amounting to formation of a contract between the

B-2

parties, and (2) because the shipment in question was transported

through Texas, thus constituting part performance by plaintiff in

this state.

Plaintiff has never contended, however, that it entered into a

contract in Texas with defendant Par Industries, Inc.

Consequently, the Court need not decide whether exercising

jurisdiction over defendant Par would exceed constitutional

bounds, because the first step in resolving a jurisdictional

challenge under the long-arm statute is to determine whether

requirements of the statute have been satisfied. Prejean v.

Sonatrach, Inc., 652 F.2d 1260, 1264 (Sth Cir. 1981). If the

requirements of article 2031b have not been met, the Court must

dismiss the case without further inquiry. The Court concludes

that no basis has been shown for exercising jurisdiction in this

case over defendant Par.

On the other hand, the Court must pursue the inquiry

mentioned above to determine whether exercise of jurisdiction

over defendant Jensen is constitutional. For Texas to

constitutionally maintain jurisdiction over this non-resident

defendant, Jensen must have had “minimum contacts” with the

state. A three-prong test involving the defendant’s contacts with

Texas must be satisfied before an exercise of jurisdiction is

proper:

(1) The non-resident defendant must purposefully do some

act or consummate some transaction in the forum state;

(2) The cause of action must arise from, or be connected

with, such act or transaction; and

(3) The assumption of jurisdiction by the forum state must

not offend traditional notions of fair play and substantial

justice, consideration being given to the quality, nature and

B-3

extent of the activity in the forum state, the relative

convenience of the parties, the benefits and protection of the

laws of the forum state afforded the respective parties, and the

basic equities of the situation.

U-Anchor Advertising, Inc. v. Burt, 553 S.W. 2d 760, 762 (Tex.

1977), cert. denied, 434 U.S. 1063 (1978); O’Brien v. Lanpar

Company, 399 S.W. 2d 340, 342 (Tex. 1966).

Defendant Jensen’s two contacts with the State of Texas do not

rise to the level of the required “‘minimum contacts.” An exercise

of jurisdiction over a non-resident whose only contacts with the

state of Texas consisted of (1) a three-way conference call (among

Jensen in Washington state, C & H in Texas, and the C&H

terminal manager in Washington state) concerning details of

shipping the goods, and (2) movement of the goods through the

state of Texas, does not satisfy the three-prong test of O’Brien.

Given the extensive use of interstate telephone communication

in today’s business world, it is not reasonable for a party to be

subjected to the jurisdiction of whatever foreign state or states he

may happen to talk with by telephone. Such an idea offends

traditional notions of justice and fair play. For much the same

reason, a state should not exercise jurisdiction over a party

merely because goods with which he is somehow connected must

pass through the state to reach their destination. For

jurisdictional purposes, the routing of such goods through Texas

by someone other than defendant was purely fortuitous and not

a purposefully conducted activity. See U-Anchor Advertising,

Inc. v. Burt, supra, at 763. Were this Court to hold that these two

contacts are sufficient to satisfy due process, any person,

individual or corporate, could be subject to the jurisdiction of

virtually every state in the union. The Court declines to adopt

such an expansive interpretation of due process. See generally

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286,

295-298 (1980).

B-4

Because plaintiff has not discharged its burden of establishing

in personam jurisdiction over these non-resident defendants,

their motions to dismiss are GRANTED, and this case is

dismissed without prejudice.

May 24, 1983.

A. JOE FISH

United States District Judge

APPENDIX C

28 USC § 1337

The district courts shall have original jurisdiction of any civil

action or proceeding arising under any Act of Congress regulating

commerce or protecting trade and commerce against restraints

and monopolies.

49 USC § 10743. Payment of rates

(a) Except as provided in subsection (b) of this section, a

common carrier (except a pipeline or sleeping car carrier)

providing transportation or service subject to the jurisdiction of

the Interstate Commerce Commission under this subtitle shall

give up possession at destination of property transported by it

only when payment for the transportation or service is made.

(bX 1) Under regulations of the Commission governing the

payment for transportation and service and preventing

discrimination, those carriers may give up possession at

destination of property transported by them before payment for

the transportation or service. The regulations of the Commission

may provide for weekly or monthly payment for transportation

provided by motor common carriers and for periodic payment

for transportation provided by water common carriers.

(2) Such a carrier (including a motor common carrier being

used by a freight forwarder) may extend credit for transporting

property for the United States Government, a State, a territory

or possession of the United States, or a political subdivision of

any of them.

C-2

49 USC § 10761. Transportation prohibited without tariff

(a) Except as provided in this subtitle, a carrier providing

transportation or service subject to the jurisdiction of the

Interstate Commerce Commission under chapter 105 of this title

shall provide that transportation or service only if the rate for the

transportation or service is contained in a tariff that is in effect

under this subchapter. That carrier may not charge or receive a

different compensation for that transportation or service than the

rate specified in the tariff whether by returning a part of that rate

to a person, giving a person a privilege, allowing the use of a

facility that affects the value of that transportation or service or

another device.

49 USC § 10762. General tariff requirements

(al) A carrier providing transportation or service subject to

the jurisdiction of the Interstate Commerce Commission under

chapter 105 of this title (except a motor common carrier) shall

publish and file with the Commission tariffs containing the rates

and (A) if a common carrier, classifications, rules, and practices

related to those rates, and (B) if a contract carrier, rules and

practices related to those rates, established under this chapter for

transportation or service it may provide under this subtitle. A

motor common carrier shall publish and file with the

Commission tariffs containing the rates for transportation it may

provide under this subtitle. The Commission may prescribe other

information that motor common carrier shall include in their

tariffs. A motor contract carrier that serves only one shipper and

has provided continuous transportation to that shipper for at

least one year or a motor carrier of property providing

transportation under a certificate to which the provisions of

section 10922(b4)\E) of this title apply or under a permit to

which the provisions of section 10923(b\5) of this title apply

may file only its mmimum rates unless the Commission finds that

filing of actual rates is required in the public interest.

C-3

(2) Carriers that publish tariffs under paragraph (1) of this

subsection shall keep them open for public inspection. A rate

contained in a tariff filed by a common carrier providing

transportation or service subject to the jurisdiction of the

Commission under subchapter II, III, or TV of chapter 105 shall

be stated in money of the United States. A tariff filed by a motor

or water contract carrier or by a freight forwarder providing

transportation or service subject to the jurisdiction of the

Commission under subchapter II, III, or IV of that chapter,

respectively, may not become effective for 30 days after it is filed.

USC, CONSTITUTION AMENDMENT XIV

Section | All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall make

or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.

Vernon’s Texas Ann. Civ. Stat., Art. 2031b

Sec. 4 For the purpose of this Act, and without including

other acts that may constitute doing business, any foreign

corporation, joint stock company, association, partnership, or

nonresident natural person shall be deemed doing business in this

State by entering into contract by mail or otherwise with a

resident of Texas to be performed in whole or in part by either

party in this State, or the committing of any tort in whole or in

part in this State. The act of recruiting Texas residents, directly

or through an intermediary located in Texas, for employment

inside or outside of Texas shall be deemed doing business in this

28 USC § 1254(1)

Cases in the courts of appeals may be reviewed by the Supreme

Court by the following methods:

(1) By writ of certiorari granted upon the petition of any

party to any civil or criminal case, before or after rendition of

judgment or decree.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.