An anonymous person ordered a prank item from a North Carolina online seller and had it delivered to plaintiff at her place of employment. She opened the package in front of co-workers and found its contents “highly inappropriate and humiliating, especially in an office setting.” She sued the anonymous purchaser and the seller in state court alleging intentional infliction of emotional distress by the buyer and negligence by the seller. The seller filed a special appearance based on its non-residency in Texas. It subsequently removed the case to federal court on diversity grounds and filed motions to dismiss for lack of personal jurisdiction (FRCP 12(b)(2)) and failure to state a claim (FRCP 12(b)(6)). The federal court remanded to state court for lack of jurisdiction because the damages requested fell below the jurisdictional threshold. Plaintiff then filed a motion to strike the seller’s special appearance because the seller sought relief in federal court. The court proceeded to set the seller’s special appearance for hearing. After the hearing, the trial court signed an order granting plaintiff’s motion to strike and denying the special appearance. The seller filed an interlocutory appeal.
These are the facts of Witty Yeti, LLC and John Doe v. Janelle Plummer (04-22-00075-CV). In an opinion by Chief Justice Martinez, the San Antonio Court of Appeals reversed the trial court’s orders and dismissed the case for want of personal jurisdiction over the seller. The primary issue in the case was whether the seller waived its special appearance under TRCP 120a’s due-order-of-pleading requirement, which requires a party challenging personal jurisdiction to plead and file the special appearance before any other pleas or motions. A party waives its special appearance if it :(1) invokes the judgment of the court on any question other than the court’s jurisdiction, (2) recognizes by its acts that an action is properly pending, or (3) seeks affirmative action from the court” inconsistent with the special appearance (citations omitted). The rule further requires that a special appearance “must be heard and determined before a motion to transfer venue or any other plea or pleading may be heard” (citations omitted).
Plaintiff argued that by removing the case to federal court and seeking affirmative relief, the seller waived its special appearance. The court of appeals disagreed. First, the seller complied with Rule 120a by pleading its special appearance first (although it could have made other motions after the special appearance, in this case the seller did not make any other motions). When the seller removed the case to federal court, it likewise followed the due-order-of-pleading requirement in Rule 12 by pleading lack of jurisdiction first and failure to state a claim after that. The seller’s 12(b)(6) motion to dismiss, the court held, did not waive the seller’s special appearance in state court because it did not seek relief inconsistent with the state court’s lack of jurisdiction. Having determined that the seller complied with Rule 120a, the court had no difficulty deciding for the seller on the merits. The seller’s only contacts with Texas involved shipping products that may end up in Texas and maintaining a commercial website that may be viewed in Texas. Neither of these contacts rise to the jurisdictional level of “purposeful availment” of a Texas forum.
This is the second Rule 120a case we have seen in the past few weeks. The seller’s counsel clearly had a good grasp of both the state and federal rules governing challenges to personal jurisdiction. It seeks unlikely to us that plaintiff’s case would have gotten very far on the merits, either, since the seller’s only action was filling the order and declining to rat on the person who ordered it (if the seller even knew). Perhaps the takeaway is not to open packages from “John Doe,” whether you’re at work or anywhere else. Better to send those back where they came from.
