Since a special appearance filed under Texas Rule of Civil Procedure 120a seeks to challenge the court’s personal jurisdiction over the defendant in a case, the merits of the special appearance argument focus on the basis for jurisdiction. Generally speaking, the plaintiff is responsible for asserting the basis or bases for jurisdiction, and the defendant is responsible for negating every basis the plaintiff raises.
The plaintiff must plead, in the complaint, allegations that are sufficient to trigger Texas’s “long-arm” statute for jurisdiction. When a defendant is not personally in Texas and has no property there, the basis for long-arm jurisdiction is typically found in one of three allegations:
- The defendant contracted some type of business (by mail or other means) with a Texas resident, and part or all of the contract is to be carried out in Texas,
- The defendant committed a tort, in whole or in part, in Texas, or
- The defendant was recruiting Texas residents for employment, whether in Texas or elsewhere.
These allegations will be sufficient for jurisdiction if they meet the requirements of state and federal due process. For due process purposes, personal jurisdiction exists when the defendant has “minimum contacts” with the state, and jurisdiction meets “traditional notions of fair play and substantial justice.”
Once the plaintiff asserts the basis for jurisdiction over a defendant who doesn’t live or have property in Texas, it is up to that defendant to negate every basis for jurisdiction that the plaintiff has alleged. The defendant can invoke either law or fact, or both, to do this. To rely on facts, the defendant will need to present evidence (often attached to the motion for special appearance); to make a legal argument, the defendant will need to show that there is no basis in law for jurisdiction, even if all the facts the plaintiff alleges are true.
The specific arguments will vary depending on the particular facts of each case. However, it is not unusual for a defendant to take a “belt and suspenders” approach by attempting to negate an alleged basis for jurisdiction on both the law and the facts. These arguments typically take the form of “Plaintiff’s facts are not true, but even if they were, they wouldn’t be enough for the court to exercise jurisdiction.”
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