Zinc Nacional, S.A. v. Bouche Trucking, Inc., No. 09-0734 (Tex. April 9, 2010)(per curiam)
(negligence case, non-resident defendant did not have minimum contacts with Texas for purposes of
establishing specific jurisdiction by using a third-party trucking service to transport its goods through Texas to
an out-of-state customer)
Here, there is no evidence that Zinc has attempted to serve the market in Texas. It has
no offices, employees, agents, or representatives in Texas, nor does it advertise or
market its paper products here. As such, Zinc lacks the minimum contacts with Texas
necessary to establish specific jurisdiction. Although Zinc does have three or four
customers for its other products in Texas, and does receive some raw materials from
Texas, these facts are unrelated to the accident in this case and are thus irrelevant to
the question of specific jurisdiction. However, they may have some bearing on the
existence of general jurisdiction, an issue the court of appeals did not consider.
ZINC NACIONAL, S.A. v. BOUCHÉ TRUCKING, INC.; from El Paso County; 8th district (08-07-00314-CV, 296
SW3d 763, 07-31-09)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.
Per Curiam Opinion [pdf]
See Electronic Briefs in ZINC NACIONAL, S.A. v. BOUCHÉ TRUCKING, INC.
Zinc Nacional, S.A. v. Bouche Trucking, Inc. (Tex. 2010)(per curiam)
In this negligence case, we must decide whether a non-resident defendant had minimum contacts with
Texas for purposes of establishing specific jurisdiction by using a third-party trucking service to transport its
goods through Texas to an out-of-state customer. We conclude that it did not. Accordingly, we reverse the
court of appeals’ judgment, 296 S.W.3d 763, and remand to that court for consideration of respondent’s
alternative jurisdictional argument.
Zinc Nacional, S.A., is a Mexican company that primarily manufactures zinc sulfate and zinc oxide. It has
260 customers worldwide, thirty in the United States and three or four in Texas. It also receives raw materials
from suppliers in Texas. A few years ago, Zinc began manufacturing grayback paper for use in drywall
manufacturing. It has only three customers for its grayback paper, two in Mexico and one — American Gypsum
— in New Mexico. Zinc is not a Texas resident and maintains no offices in Texas. It has no employees, agents,
or representatives in Texas, nor does it advertise or market its paper product here. Zinc contracts with a
Mexican company, C.H. Robinson de Mexico, for transportation of its products throughout Mexico and the
Zinc focuses on selling its paper product to drywall-manufacturing plants located in New Mexico, Nevada,
and Florida. American Gypsum in New Mexico has been a customer of Zinc's paper product for the past seven
years. Zinc ships two to three loads to American Gypsum a week. In December 1999, Zinc loaded eight rolls of
grayback paper onto a C.H. Robinson trailer in Monterrey, Mexico, pursuant to a purchase order from
American Gypsum. C.H. Robinson trucked the load from Monterrey, Mexico, to Laredo, Texas. The purchase
order specified that the shipping terms were "F.O.B. Mid-Bridge Laredo." The shipment was then picked up in
Laredo by Bouché Trucking, Inc., a Texas corporation that had been subcontracted by C.H. Robinson to
transport the product to New Mexico.1
During transport the rolls shifted, causing the trailer rig to overturn in Texas and injure the driver, Jorge
Arrellano. Arrellano sued Bouché, which then filed a third-party petition against Zinc seeking indemnity and
contribution because Zinc employees loaded the paper rolls onto the trailer. Zinc filed a special appearance
challenging personal jurisdiction, arguing that Texas courts could exercise neither specific nor general
jurisdiction over it. See Tex. R. Civ. P. 120a. The trial court denied Zinc’s special appearance. The court of
appeals affirmed, concluding that Zinc's decision to use a shipper it knew would transport its goods through
Texas on Texas roads to a customer in New Mexico constituted purposeful availment of Texas benefits, thus
establishing minimum contacts for purposes of specific jurisdiction. 296 S.W.3d at 769. Because it concluded
specific jurisdiction was proper, the court of appeals did not consider Bouché’s alternative argument that
general jurisdiction was proper as well. Id. at 768.
Whether a court has personal jurisdiction over a nonresident defendant is a question of law, which we
review de novo. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). The Texas long-
arm statute’s broad “doing business” language authorizes personal jurisdiction over a nonresident defendant
“as far as the federal constitutional requirements of due process will allow.” Guardian Royal Exch. Assurance,
Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991); Tex. Civ. Prac. & Rem. Code § 17.042
(1). To establish personal jurisdiction, the defendant must have established minimum contacts with the forum
state, and the assertion of jurisdiction must comport with "traditional notions of fair play and substantial justice."
Marchand, 83 S.W.3d at 795 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). The minimum-
contacts analysis requires “some act by which the defendant purposefully avails itself of the privilege of
conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Michiana
Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005) (quoting Hanson v. Denckla, 357 U.S.
235, 253 (1958)).
"Personal jurisdiction exists if the nonresident defendant's minimum contacts give rise to either specific
jurisdiction or general jurisdiction." Marchand, 83 S.W.3d at 795. When specific jurisdiction is asserted, the
minimum contacts analysis focuses “on the ‘relationship among the defendant, the forum, and the litigation.’”
Moki Mac River Expeditions v. Drugg, 221 S.W.3d. 569, 578–76 (Tex. 2007) (quoting Guardian Royal 815 S.W.
2d at 228).
Both this Court and the United States Supreme Court have held that the mere fact that goods have
traveled into a state, without more, does not establish the minimum contacts necessary to subject a
manufacturer to personal jurisdiction within that state. See, e.g., World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 296 (1980); Asahi Metal Indus. Co. v. Super. Ct., 480 U.S. 102, 112 (1987); Michiana, 168 S.W.
3d at 788. The fact that a seller knows his goods will end up in the forum state does not support jurisdiction
when the seller made no attempt to market its goods there. Michiana, 168 S.W.3d at 787. The exercise of
jurisdiction over a merchant requires that the merchant actually direct sales to the forum state, not through it.
See Asahi, 480 U.S. at 112 ("The placement of a product into the stream of commerce, without more, is not an
act of the defendant purposefully directed toward the forum State. Additional conduct of the defendant may
indicate an intent or purpose to serve the market in the forum State. . . ."). Accordingly, a merchant’s decision
to ship its goods with a third-party shipper that will travel through Texas to a recipient outside of Texas does
not, by itself, constitute purposeful availment.
Here, there is no evidence that Zinc has attempted to serve the market in Texas. It has no offices,
employees, agents, or representatives in Texas, nor does it advertise or market its paper products here. As
such, Zinc lacks the minimum contacts with Texas necessary to establish specific jurisdiction. Although Zinc
does have three or four customers for its other products in Texas, and does receive some raw materials from
Texas, these facts are unrelated to the accident in this case and are thus irrelevant to the question of specific
jurisdiction. However, they may have some bearing on the existence of general jurisdiction, an issue the court
of appeals did not consider.
For the foregoing reasons, we grant the petition for review and, without hearing oral argument, Tex. R.
App. P. 59.1, reverse the court of appeals’ judgment and remand to that court for it to consider respondent’s
general jurisdiction argument.
OPINION DELIVERED: April 9, 2010
1 There is some dispute as to whether title was actually transferred in Texas or Mexico. However, the question of where the
transfer took place is irrelevant to our analysis.