Moki Mac River Expeditions v. Drugg

delivered the opinion of the Court,

A Texas court may assert specific jurisdiction over an out-of-state defendant if *573the defendant’s contact with this state is purposeful and the injury arises from or relates to those contacts. In this wrongful-death case against a Utah-based river-rafting outfitter, the defendant contends the plaintiffs death on a Grand Canyon hiking trail did not arise from or relate to its instate commercial activities so as to establish specific jurisdiction over it in Texas. We agree. Accordingly, we reverse and remand the case to the court of appeals to determine whether general jurisdiction exists.

I. Background

Charles and Betsy Drugg’s thirteen-year-old son, Andy, died on a June 2001, river-rafting trip in Arizona with Moki Mac River Expeditions, a Utah-based river-rafting outfitter. Moki Mac did not directly solicit the Druggs to participate in the trip. Instead, the Druggs learned about Moki Mac’s excursions from a fellow Texas resident, Annie Seals, who had contacted the company regarding a rafting trip in the Grand Canyon. There was no space available for her at that time, but Seals’s contact information was placed on Moki Mac’s computerized mailing list so that she would automatically receive a brochure for the 2001 season when it became available. Moki Mac subsequently sent two brochures to Seals in Texas detailing pricing and schedules for upcoming excursions. Seals informed Moki Mac of the interest of several others in Texas with whom she shared the literature, including Andy and members of his family.

Betsy Drugg reviewed the brochures and information from Moki Mac’s website. After corresponding with Moki Mac representatives from her home in Texas, Betsy ultimately decided to send Andy on the rafting trip. Andy’s grandmother sent Moki Mac an application and payment for herself and Andy. As was its practice, Moki Mac sent a letter confirming payment to the Druggs’ home in Texas along with an acknowledgment-of-risk and release form, which the company requires participants to sign as a prerequisite to attendance. Both Andy and his mother signed the form and returned it to Moki Mac.

The Druggs allege that on the second day of Andy’s fourteen-day trip, Moki Mac guides led the group up an incline on a trad that narrowed around and was obstructed by a large boulder. The guides were positioned at the head and rear of the group, but no guide was present near the boulder. As Andy attempted to negotiate the boulder-blocked path, requiring him to lean back while attempting to cross a very narrow ledge, he fell backwards approximately fifty-five feet and was fatally injured.

The Druggs filed suit in Texas for wrongful death due to Moki Mac’s negligence and for intentional and negligent misrepresentation.1 The trial court denied Moki Mac’s special appearance and the court of appeals affirmed on the basis of specific jurisdiction, holding that the Druggs’ misrepresentation claim arose from, and related to, Moki Mac’s purposeful contacts with Texas. 2004 WL 100389. Because the court of appeals found specific jurisdiction, it did not consider whether general jurisdiction was proper. We granted Moki Mac’s petition for review to consider the extent to which a claim must “arise from or relate to” forum contacts in *574order to confer specific jurisdiction over a nonresident defendant.2

II. Jurisdiction

As a threshold matter, the Druggs contend we do not have jurisdiction over Moki Mac’s interlocutory appeal in this case. Generally, a court of appeals’ decision in an interlocutory appeal is final. Tex. Gov’t Code § 22.225(b)(3). When, however, the court of appeals holds differently from a prior decision of another court of appeals, this Court, or the United States Supreme Court, we have jurisdiction to resolve the disagreement or conflict. Tex. Gov’t Code §§ 22.001(a)(1), (2) and 22.225(c); Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675 (Tex.2002). Moki Mac contends the court of appeals’ decision in this case conflicts, inter alia, with Laykin v. McFall, 830 S.W.2d 266 (Tex.App.-Amarillo 1992, orig. proceeding). There, the court of appeals held that a Texas court could not assert jurisdiction over an out-of-state defendant in a suit by a Texas resident alleging fraud and conversion because the “focal point” of the allegedly tortious activity and the plaintiffs damages did not lie in Texas. Id. at 270. In this case, in contrast, the court of appeals held that the Texas court could assert jurisdiction without regard to the likely focus of the parties’ efforts in the underlying lawsuit. 2004 WL 100389, at *4. We have jurisdiction to resolve the conflict in this interlocutory appeal. Tex. Gov’t Code § 22.001(a)(2).

III. In Personam Jurisdiction

The plaintiff bears the initial burden of pleading sufficient allegations to invoke jurisdiction under the Texas long-arm statute. Am. Type Culture Collection v. Coleman, 83 S.W.3d 801, 807 (Tex.2002). The nonresident defendant then assumes the burden of negating all bases of jurisdiction in those allegations. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex.2002). Because the question of a court’s exercise of personal jurisdiction over a nonresident defendant is one of law, we review a trial court’s determination of a special appearance de novo. Id. at 794. When, as here, the trial court does not make findings of fact and conclusions of law in support of its ruling, we infer “all facts necessary to support the judgment and supported by the evidence ....” Id. at 795.

Texas courts may assert in per-sonam jurisdiction over a nonresident if (1) the Texas long-arm statute authorizes the exercise of jurisdiction, and (2) the exercise of jurisdiction is consistent with federal and state constitutional due-process guarantees. Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex.1990). Our long-arm statute describes what, “[i]n addition to other acts,” may constitute doing business in this state. Tex. Civ. Prac. & Rem. Code § 17.042. Pertinent to this case are the first two subsections, which provide that a nonresident does business in Texas if it:

(1) contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in this state; [or]

(2) commits a tort in whole or in part in this state;

Id. § 17.042(1), (2). The Druggs’ negligent and intentional misrepresentation claims based on Moki Mac’s brochures and release form satisfy the doing-business requirement for jurisdiction under the plain *575language of the statute. But the exercise of jurisdiction under the statute must be consistent with federal and state constitutional guarantees of due process. See Schlobohm, 784 S.W.2d at 356.

We have said that the long-arm statute’s broad doing-business language allows the statute to “reach 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); see also Schlobohm, 784 S.W.2d at 357; U-Anchor Adver., Inc. v. Burt, 553 S.W.2d 760, 762 (Tex.1977). Thus, the requirements of the Texas long-arm statute are satisfied if an assertion of jurisdiction accords with federal due-process limitations. Am. Type Culture Collection, 83 S.W.3d at 806; CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex.1996); Schlobohm, 784 S.W.2d at 357.

Federal due-process requirements limit a state’s power to assert personal jurisdiction over a nonresident defendant. See Guardian Royal, 815 S.W.2d at 226. Personal jurisdiction is proper when the nonresident defendant has established minimum contacts with the forum state, and the exercise of jurisdiction comports with “ ‘traditional notions of fair play and substantial justice.’ ” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). Minimum contacts are sufficient for personal jurisdiction when the nonresident defendant “ ‘purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’ ” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) (quoting Int’l Shoe Co., 326 U.S. at 319, 66 S.Ct. 154); Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex.2005).

We have recently explained that there are three parts to a “purposeful availment” inquiry. Michiana, 168 S.W.3d at 784-85. First, only the defendant’s contacts with the forum are relevant, not the unilateral activity of another party or a third person. Id. at 785. Second, the contacts relied upon must be purposeful rather than random, fortuitous, or attenuated. Id.; see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 n. 18, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); WorldWide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). Thus, “[s]ellers who ‘reach out beyond one state and create continuing relationships and obligations with citizens of another state’ are subject to the jurisdiction of the latter in suits based on their activities.” Michiana, 168 S.W.3d at 785 (quoting Burger King, 471 U.S. at 473, 105 S.Ct. 2174). Finally, the “defendant must seek some benefit, advantage or profit by ‘availing’ itself of the jurisdiction.” Michiana, 168 S.W.3d at 785. In contrast, a defendant may purposefully avoid a particular forum by structuring its transactions in such a way as to neither profit from the forum’s laws nor subject itself to jurisdiction there. Burger King, 471 U.S. at 472, 105 S.Ct. 2174.

A nonresident defendant’s forum-state contacts may give rise to two types of personal jurisdiction. BMC Software, 83 S.W.3d at 795-96. If the defendant has made continuous and systematic contacts with the forum, general jurisdiction is established whether or not the defendant’s alleged liability arises from those contacts. Id. at 796; CSR Ltd., 925 S.W.2d at 595. In contrast, when specific jurisdiction is alleged, we focus the minimum-contacts analysis on the “relationship among the defendant, the forum[,] and the *576litigation.” Guardian Royal, 815 S.W.2d at 228 (citing Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); Schlobohm, 784 S.W.2d at 357). Specific jurisdiction is established if the defendant’s alleged liability “aris[es] out of or [is] related to” an activity conducted within the forum. Helicopteros, 466 U.S. at 414 n. 8, 104 S.Ct. 1868; see also CSR Ltd., 925 S.W.2d at 595. The United States Supreme Court has provided relatively little guidance on the “arise from or relate to” requirement, nor have we had occasion to examine the strength of the nexus required to establish specific jurisdiction.

IV. Jurisdictional Analysis

The Druggs assert that Moki Mac established sufficient minimum contacts with Texas by making material misrepresentations to them here, upon which they relied, regarding the nature of the services that would be provided on its trips. The wrongful death of their son, the Druggs argue, arose from or related to the fact that Moki Mac’s sendees did not meet the standards it represented in Texas. Moki Mac’s principal argument is that there is an insufficient nexus between any alleged misrepresentations that it made in Texas and Andy’s wrongful death in Arizona to satisfy jurisdictional due process. According to Moki Mac, Andy’s death might have arisen out of or related to alleged negligence that occurred in Arizona, but it had no meaningful connection to Moki Mac’s alleged misrepresentations in Texas.

For a Texas forum to properly exercise specific jurisdiction in this case, (1) Moki Mac must have made minimum contacts with Texas by purposefully availing itself of the privilege of conducting activities here, and (2) Moki Mac’s liability must have arisen from or related to those contacts. Am. Type Culture Collection, Inc., 83 S.W.3d at 806. Before deciding whether Moki Mac’s liability arose from or related to its forum contacts, we must first examine the nature of those contacts and whether Moki Mac purposefully availed itself of the privilege of conducting business here. See Michiana, 168 S.W.3d at 784-85.

A. Purposeful Availment

A nonresident defendant that directs marketing efforts to Texas in the hope of soliciting sales is subject to suit here for alleged liability arising from or relating to that business. Id., 168 S.W.3d at 785. In Michiana, we concluded that a single product sale stemming from a single phone call initiated from Texas to a nonresident defendant was not a purposeful contact sufficient to satisfy the due-process minimum-contacts test because the seller did not purposefully direct marketing efforts here to solicit sales. Id. at 781, 785-86. In that case, Holten, a Texas resident, called Michiana, the nonresident defendant, to purchase an RV manufactured outside of Texas, which Michiana delivered to Texas entirely at Holten’s expense. Id. at 784. Michiana did not advertise in Texas and undertook no affirmative efforts to solicit business here. Id. We held that the alleged commission of a tort by making misrepresentations during a phone call initiated by Holten was insufficient, by itself, to establish jurisdiction. Id. at 791-92. Such a test, we reasoned, would improperly focus the purposeful-availment analysis on the form of the action chosen by the plaintiff rather than on the defendant’s efforts to avail itself of the forum. Id. at 791. We also held that, standing alone, delivery of the single RV to Texas to accommodate Holten was a similarly deficient basis for jurisdiction. Id. at 786-88.

The United States Supreme Court has recognized that a nonresident *577who places products into the “stream of commerce” with the expectation that they will be sold in the forum state is subject to the forum’s jurisdiction. World-Wide Volkswagen, 444 U.S. at 297-98, 100 S.Ct. 559. Although the Court has also stated that a single contact can support jurisdiction if that contact creates a “substantial connection” with the forum, jurisdiction cannot be established where the contact creates only an “ ‘attenuated’ affiliation with the forum.” Burger King, 471 U.S. at 475 n. 18, 105 S.Ct. 2174 (quoting Worldr-Wide Volkswagen, 444 U.S. at 299, 100 S.Ct. 559). Indeed, in World-Wide Volkswagen, the Court held that a New York dealership that did not advertise or solicit business in Oklahoma was not subject to suit there simply because it sold a car to New York residents in New York who “happened to suffer an accident while passing through” Oklahoma. World-Wide Volkswagen, 444 U.S. at 295,100 S.Ct. 580. The Court reasoned that this one occurrence was mere fortuity and too attenuated to support jurisdiction, given the dealership’s complete lack of affiliation with Oklahoma. Id. Similarly, Michiana’s single contact with Texas was too attenuated to support jurisdiction in Texas. Michiana had no control over the point of customer contact that generated the sale and, like the defendant in World-Wide Volkswagen, had no say over where the RV would end up. Michiana, 168 S.W.3d at 787. Rather, Michiana’s sale to Texas resulted from the mere fortuity that Holten happened to reside here, and Holten’s unilateral activity could not subject Michiana to specific jurisdiction here. Id. at 787.

Thus, the mere sale of a product to a Texas resident will not generally suffice to confer specific jurisdiction upon our courts. Instead, the facts alleged must indicate that the seller intended to serve the Texas market. CSR Ltd., 925 S.W.2d at 595; see Asahi Metal Ind. Co. v. Superior Court, 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). This rule accords with the due-process requirement that a nonresident defendant must take action that is purposefully directed toward the forum state. See Asahi, 480 U.S. at 112, 107 S.Ct. 1026. In determining whether the defendant purposefully directed action toward Texas, we may look to conduct beyond the particular business transaction at issue: “Additional conduct of the defendant may indicate an intent or purpose to serve the market in the forum State.” Id; see also Michiana, 168 S.W.3d at 786 (stating that Texas “cases appear to follow the ‘additional conduct standard’ ”). Examples of additional conduct that may indicate whether a defendant purposefully availed itself of a particular forum include advertising and establishing channels of regular communication to customers in the forum state. Asahi, 480 U.S. at 112, 107 S.Ct. 1026.

Unlike in Michiana, the evidence in this cases indicates that Moki Mac does intend to serve the Texas market. Moki Mac knowingly sells rafting trips to Texas residents and purposefully directs marketing efforts to Texas with the intent to solicit business from this state. In addition to sending the brochures and release to the Druggs, the evidence shows that Moki Mac regularly advertised in Texas. It has placed advertisements in a variety of nationally circulated publications that have Texas subscribers. Moki Mac also hired public relations firms to target media groups and tour operators, some of whom were located in Texas. In 1996, Moki Mac promoted its trips within Texas by taking out an advertisement in the Austin Chronicle. We have said that a nonresident defendant’s advertising in local media “in and of itself, is a sufficiently purposeful act that is done in Texas.” Siskind v. Villa *578Found, for Educ., Inc., 642 S.W.2d 434, 436 (Tex.1982).

Moki Mac’s efforts to solicit business in Texas, however, go further. It solicited Texas residents through mass and targeted direct-marketing email campaigns. Moki Mac compiled a mailing list by collecting contact information from interested parties either by phone, email, or through the company’s website. In addition, Moki Mac obtained a list of potential customers from a commercial source. Both its own mailing list and the commercial mailing list included Texas residents. The company would automatically send brochures and trip information to people who had previously expressed interest in a trip, even in years when that person had not expressed interest. As part of those promotions, Moki Mac offered “a free float” as an incentive to customers who coordinated a group of ten or more. Moki Mac provided this compensation to at least two Texas residents. Moki Mac occasionally provided musicians to accompany float trips free of charge. On one particular trip, Moki Mac permitted a string quartet from Fort Worth to accompany a Texas group on its float trip, free of charge to the musicians. Moki Mac also paid a fee to a travel agency located in Houston, resulting in multiple trips involving Texas residents.

In addition, Moki Mac established channels of regular communication with its customers in Texas. It was Moki Mac’s practice to utilize particular customers, who would become de facto group leaders, to plan, organize, and promote its trips. Annie Seals was one such contact. By communicating with all of its customers through correspondence with a single group leader, Moki Mac streamlined its reservations process. The company kept these communication channels open; it was Moki Mac’s practice to automatically send information regarding new trips, schedules, and prices to those on its mailing list who had been a customer or who had simply expressed interest in a trip within a three-year period.

We stated in Michiana that the contacts of “[sjellers who ‘reach out beyond one state and create continuing relationships and obligations with citizens of another state’ ” are purposeful rather than fortuitous. Michiana, 168 S.W.3d at 785 (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984)). Moki Mac’s contacts with Texas did not result, as did the defendant’s in Michiana, from the mere fortuity that the Druggs happened to reside here. Rather, the contacts it had with Texas resulted from additional conduct through which it aimed to get extensive business in or from this state.

Purposeful availment requires that “a defendant must seek some benefit, advantage, or profit by ‘availing’ itself of the jurisdiction.” Id. at 785. The notion necessarily implies that the nonresident submit to suit in the forum, and that a nonresident may avoid being haled into court in a particular forum by purposefully conducting business so as not to derive benefit or profit from a forum’s laws. Id. We held in Michiana that the defendant did not purposefully avail itself of the benefits and protections of Texas law because it did not regularly sell RVs in Texas, did not design, advertise, or distribute RVs in Texas, and because the single relationship with Holten would end once the sale was consummated. Id. at 785-86, 794. Moki Mac, conversely, sought and obtained profit from Texas residents, with whom the company maintained communications, and it derived a substantial amount of its business from Texas. Unlike in Michiana, where we characterized a single sale resulting from a single phone call originating from a Texas number as a “dribble,” id. at 786, the *579“stream of commerce” Moki Mac tapped into was significant. There is evidence that, over the preceding five years, between 105 and 128 of Moki Mac’s customers (between 7-11%) were from Texas. We have emphasized that mere profit originating from the forum, if unrelated to a contact with the forum, is not purposeful availment. Id. at 787-88; see also WorldWide Volkswagen, 444 U.S. at 299, 100 S.Ct. 559. But Moki Mac’s business with Texas residents stems from its marketing and advertising activities purposefully directed at gaining Texas customers, and it thus availed itself of doing business here.

This Court found purposeful availment in a similar case concerning an out-of-state school that sent information to a Texas individual upon his request. Siskind, 642 S.W.2d at 435. In Siskind, we held that an exercise of personal jurisdiction was proper over a school for troubled children located in Arizona. Id. at 435. Siskind paid tuition for his son to attend Villa with the understanding from the school’s brochures and Siskind’s modified enrollment contract that he would be reimbursed if his son left during the school year. Id. Villa expelled Siskind’s son, but when Villa refused to refund the tuition, Siskind sued the school in Texas for breach of contract, misrepresentation, and violation of the Texas Deceptive Trade Practices Act. Id. at 435-36. A significant number of Villa’s students were Texas residents, and the school advertised in the El Paso, Houston, and Lubbock telephone directories as well as solicited business in a number of national publications that were circulated in Texas. Id. at 435. We held that Villa’s advertisements, “in conjunction with its practice of mailing informational packets, applications for admission, invitations to re-enroll, and enrollment contracts to Texas residents,” indicated that the school had affirmatively sought business in Texas. Id. at 436. Here, Moki Mac not only sent brochures and release forms to the Druggs in Texas, it also engaged in additional conduct demonstrating that, like the defendant in Siskind, it actively solicited business in Texas.

We conclude that Moki Mac had sufficient purposeful contact with Texas to satisfy the first prong of jurisdictional due process. But purposeful availment alone will not support an exercise of specific jurisdiction. Specific-jurisdiction analysis has two co-equal components. For specific-jurisdiction purposes, purposeful availment has no jurisdictional relevance unless the defendant’s liability arises from or relates to the forum contacts. Moki Mac contends there was an insufficient nexus between Andy’s injuries and Moki Mac’s contacts with Texas to establish specific jurisdiction, an argument to which we now turn.

B. Relatedness Requirement

The “arise from or relate to” requirement lies at the heart of specific jurisdiction by defining the required nexus between the nonresident defendant, the litigation, and the forum. To support specific jurisdiction, the Supreme Court has given relatively little guidance as to how closely related a cause of action must be to the defendant’s forum activities. In assessing the relationship between a nonresident’s contacts and the litigation, most courts have focused on causation, but they have differed over the proper causative threshold. See Nowak v. Tak How Invs., Ltd., 94 F.3d 708, 714 (1st Cir.1996) (discussing various causative approaches). Some courts have pursued an expansive but-for causative approach, others have adopted a restrictive relatedness view requiring forum contacts to be relevant to a necessary element of proof, and some have applied a sliding-scale analysis that at*580tempts to strike a balance between the two. See Mark M. Maloney, Specific Jurisdiction and the “Arise From or Relate to” Requirement ... What Does it Mean?, 50 Wash. & Lee L.Rev. 1265, 1276, 1299 (1993). Each approach has proponents and detractors, for the reasons we examine below.

1. “But-For” Relatedness

In Helicópteros Nacionales de Colombia v. Hall, the Supreme Court evaluated a Colombian corporation’s limited contacts with Texas and decided they were not sufficiently continuous and systematic to support general jurisdiction over the defendant in Texas. 466 U.S. at 418-19, 104 S.Ct. 1868. The Court did not reach specific jurisdiction because the parties had conceded that the plaintiffs’ claims did not arise from or relate to the defendant’s activities in Texas. Id. at 415-16, 104 S.Ct. 1868. Justice Brennan, though, dissented, espousing a broad “but-for” approach to relatedness, and courts that have applied that test have generally relied on his view. Id. at 427-28, 104 S.Ct. 1868.

Courts that support the but-for approach have said that a cause of action arises from or relates to a defendant’s forum contacts when, but for those con