PLAINTIFFS RESPONSE TO DEFENDANTS SPECIAL APPEARANCE - RESPONSE March 06, 2024 (2024)

 
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 FILED 3/6/2024 11:23 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Jenifer Trujillo DEPUTY CAUSE NO. DC-23-17477GUSTAVO RODRIGUEZ, IN THE 134 DISTRICT COURT Plaintiff,Vv. OFK.R.U., LTD. d/b/a FEED ENERGYCOMPANY, TRINITY INDUSTRIES, INC.,and EAGLE RAILCAR SERVICES, Defendants. DALLAS COUNTY, TEXAS PLAINTIFF’S RESPONSE TO DEFENDANT K.R.U., LTD. d/b/a FEED ENERGY COMPANY’S VERIFIED SPECIAL APPEARANCE CHALLENGING PERSONAL JURISDICTION = = Plaintiff, Gustavo Rodriguez, files this response in opposition to Defendant K.R.U., LTD.D/B/A Feed Energy Company’s (“Feed Energy”) Verified Special Appearance ChallengingPersonal Jurisdiction. For the reasons set out herein, the Motion should be denied. I INTRODUCTION The facts developed in this action establish that Feed Energy has sufficient “minimum”contacts with Texas to support personal jurisdiction. Feed Energy’s relevant Texas contacts includeas follows: 1 Sending product purchased from Feed Energy to Texas from Iowa on at least 11 occasions both before and after this incident; Sending the product which makes the basis of this lawsuit from Feed Energy’s lowa facility to Hereford, Texas; Maintaining an interactive website that provides Texas consumers with the ability to communicate with “Product Specialist” and become potential suppliers of Feed Energy’s products, and is used to guide Texas consumers through establishing their specific needs for specific products, as well as tank installation, maintenance, and monitoring related to product storage; Applying for and obtaining an active feed license with the Texas Feed and Fertilizer Control Service which was established through Texas Agricultural Code, which allowsGustavo Rodriguez v. Feed Energy Company, et al Page 1 of21Plaintiff’s Response to Defendant Feed Energy’s Verified Special Appearance Challenging Personal JurisdictionFeed Energy as a manufacturer and/or distributor of commercial feed, to manufacture or distribute commercial feed in this Texas in accordance with that required license. The Court should deny Feed Energy’s Motion because Feed Energy has relevant Texascontacts from which Plaintiff’s claims arise, which subjects Feed Energy to specific personaljurisdiction in Texas. Feed Energy argues that personal jurisdiction depends on mere allegationsin a petition, but it does not. In determining whether Plaintiff pleaded sufficient facts, the Courtmay consider both Plaintiff's “original pleadings as well as its response to the defendant's specialappearance.” Fuji Elec. Co., Ltd. v. Perez, 615 S.W.3d 508, 521 (Tex. App.-Houston [1st Dist.]2020, no pet.); accord Wash. DC Party Shuttle, LLC v. IGuide Tours, 406 S.W.3d 723, 738 (Tex.App.-Houston [14th Dist.] 2013, pet. denied) (same). Plaintiff is also entitled to discover andpresent evidence in opposition. See Tex. R. Civ. P. 120a; Exito Elecs. Co. Ltd. v. Trejo, 142 S.W.3d302, 306-07 (Tex. 2004) (per curiam); Dawson-Austin v. Austin, 968 S.W.2d 319, 323 (Tex. 1998).Accordingly, Plaintiff has attached evidence of Feed Energy's Texas contacts. In contrast, Feed Energy has presented no evidence outside of its corporate registration,even though Feed Energy must “negate all jurisdictional bases.” BMC Software Belg., NV. v.Marchland, 83 S.W.3d 789, 793 (Tex. 2002). Feed Energy cannot carry the burden to “negate allbases of personal jurisdiction alleged by” Plaintiff. Fuji Elec., 615 S.W.3d at 521; see, e.g.,Accelerated Wealth, LLC v. Lead Gen. & Mktg., LLC, No. 04-12-00647-CV, 2013 WL 1148923,at *3 (Tex. App.-San Antonio Mar. 20, 2013, no pet.) (mem. op.) (“Because we hold that theoriginal petition and response contained sufficient allegations of specific jurisdiction, the burdenshifted to Accelerated Wealth to negate jurisdiction based on the above-detailed allegations.”). Nevertheless, the remedy for deficient pleadings is amendment: jurisdiction should “bedecided based on the evidence rather than allegations.” Kelly v. Gen. Interior Constr., Inc., 301S.W.3d 653, 659 (Tex. 2010).Gustavo Rodriguez v. Feed Energy Company, et al Page 2 of21Plaintiff's Response to Defendant Feed Energy’s Verified Special Appearance Challenging Personal JurisdictionFeed Energy is subject to specific jurisdiction if it has (1) “minimum contacts” with Texas-meaning it has purposefully availed itself of the privilege of conducting activities in Texas-and (2)exercising “jurisdiction comports with traditional notions of fair play and substantialjustice.” Luciano v. SprayFoamPolymers.com, LLC, 625 S.W.3d 1, 8-9 (Tex. 2021); Kelly, 301S.W.3d at 657. Feed Energy need only “have sought some benefit, advantage, or profit by availingitself of’ Texas. TV Azteca v. Ruiz, 490 S.W.3d 29, 38 (Tex. 2016) (quotation omitted). If FeedEnergy's products have reached Texas, and Feed Energy evinced “an intent or purpose to serve the in”market Texas-“whether directly or indirectly”-specific jurisdiction may beexercised. Luciano, 625 S.W.3d at 9-10. “Only in rare cases ... will the exercise of jurisdiction not comport with fair play andsubstantial justice when the nonresident defendant has purposefully established minimum contactswith the forum state.” Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 341(Tex. 2009) (quotation omitted). Additionally, Feed Energy “bears the burden of presenting a‘compelling case’ that exercising jurisdiction over [it] would not be fair and just.” Cappuccitti v.Gulf Indus. Prods., Inc., 222, S.W.3d 468 (Tex. App.-Houston [lst Dist.] 2007, nopet.); accord Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985) (same). Feed Energymade no effort to explain how being subject to jurisdiction in Texas would be unfair and unjust,let alone presented a “compelling case” for it. Feed Energy has purposefully availed itself of theprivilege of conducting activities in Texas to serve the Texas market and for profit. IL. ARGUMENT AND AUTHORITIESA. Personal Jurisdiction It is fundamental that a Texas court may exercise personal jurisdiction over a nonresident(such as Feed Energy) if two conditions are met: First, the Texas long arm statute authorizes theGustavo Rodriguez v. Feed Energy Company, et al Page 3 of21Plaintiff's Response to Defendant Feed Energy’s Verified Special Appearance Challenging Personal Jurisdictionexercise of jurisdiction, and second, the exercise of jurisdiction is consistent with federal and stateconstitutional guarantees of due process. Exito Elecs. Co., Ltd. v. Trejo, 142 S.W.3d 302, 304(Tex. 2004) (citing Tex. R. Civ. P. 120a and Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex.1998)). The Texas long arm statute, as set out in TEX. CIV. PRAC. REM. CODE § 17.042 (Vernon2015), extends personal jurisdiction to nonresident defendants “doing business” in Texas, wherethe “business” conducted by the nonresident in Texas is “continuous and systematic,” or wherelitigation arises from or is related to the “business” conducted by the nonresident defendant inTexas. See O'Brien v. Lanpar Co., 399 S.W.2d 340 (Tex. 1966). Both exist in the subject case. The Texas long arm statute provides: “In addition to other acts that may constitute doingbusiness, a non-resident does business in this state if the nonresident: (1) contracts by mail orotherwise with a Texas resident and either party is to perform the contract in whole or in part inthis state; (2) commits a tort in whole or in part in this state; or (3) recruits Texas residents directlyor through an intermediary located in this state, for employment inside or outside this state. TEX.CIV. PRAC. REM. CODE § 17.042 (Vernon 2015). However, this list is not exclusive, and thestatute's “doing business” requirement is limited only by the requirements of federal due processguarantees. Schlobohm y. Schapiro, 784 S.W.2d 355, 357 (Tex. 1990); Koll Real Estate Group,Inc. v. Purseley, 127 8.W.3d 142, 146 (Tex. App.—Houston [1st Dist.] 2003, no pet.). The TexasSupreme Court has repeatedly held that the broad language of the Texas long arm statute's “doingbusiness” requirement allows the statute to reach as far as the federal constitution permits.Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991); Schlobohm, 784 S.W.2d at 357.Gustavo Rodriguez v. Feed Energy Company, et al Page 4 of21Plaintiff's Response to Defendant Feed Energy’s Verified Special Appearance Challenging Personal JurisdictionTwo elements must be met to justify the exercise of personal jurisdiction over a nonresidentdefendant. First, the plaintiff must show that the nonresident defendant has purposefullyestablished “minimum contacts” with Texas. /nternational Shoe Co. v. Washington, 326 U.S. 310,316 (1945); Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 105,(1987). Second, the plaintiff must show that the “maintenance of the suit does not offendtraditional notions of fair play and substantial justice.” International Shoe, 326 U.S. at 316;Schlobohm, 784 S.W.2d at 357. I. The “Minimum Contacts” Analysis The United States Supreme Court has extensively developed the “minimum contacts”analysis. An essential goal of the “minimum contacts” test is to protect the nonresident defendant.World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980). The goal requires adetermination whether the nonresident defendant has purposely availed itself of the privilege ofconducting activities within the forum state, thus invoking the benefits and protection of its laws.Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528,541-42 (1985). This “purposeful availment” requirement ensures that a nonresident defendant willnot be hailed into a jurisdiction based solely on “random,” “fortuitous,” “attenuated” contactsor the “unilateral activity of another party or a third person.” Jd. at 475; Helicopteros Nacionalesde Colombia v. Hall, 466 U.S. 408, 417 (1984); World-Wide Volkswagen, 444 U.S. at 298. Somepurposeful, overt act is required by a nonresident defendant to subject it to the possibility of beinghailed into a foreign court. The United States Supreme Court's keystone decision in World-WideVolkswagen Corp. v. Woodson set the standard for how these rules apply to manufacturers whoseproducts are distributed into multiple forums: When a corporation “purposefully avails itself of the privilege of conducting activities within the forum State,” it is clear notice that it is subject to suit there,Gustavo Rodriguez v. Feed Energy Company, et al Page 5 of21Plaintiff’s Response to Defendant Feed Energy’s Verified Special Appearance Challenging Personal Jurisdictionand can act to alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the risks are too great, severing its connection with the State. Hence if the sale of the product of a manufacturer or distributor such as Audi or Volkswagen is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others. The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state. World- Wide Volkswagen, at 297-98 (internal citations omitted). World-Wide Volkswagen remains the leading case because neither of the two U.S. SupremeCourt cases that subsequently addressed stream-of-commerce analysis achieved a majority. SeeAsahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102 (1987); J. Mcintyre Machinery,Ltd. v. Nicastro, 131 S.Ct. 2780 (2011). The U.S. Court of Appeals for the Fifth Circuitacknowledged this when it evaluated the Supreme Court opinions cited by the defendantin Ainsworth v. Moffett Eng’g, Ltd., 716 F.3d 174, 176-78 (Sth Cir. 2013), noting that “the SupremeCourt reversed but did not produce a majority opinion” and concluded that “application of thestream-of-commerce approach in this case does not run afoul of Mc/ntyre's narrow holding:” The Fifth Circuit has consistently followed a “stream-of- commerce” approach to personaljurisdiction, under which the minimum contacts requirement is met so long as the court “finds thatthe defendant delivered the product into the stream of commerce with the expectation that it wouldbe purchased by or used by consumers in the forum state.” Under that test, “mere foreseeability orawareness [is] a constitutionally sufficient basis for personal jurisdiction if the defendant's productmade its way into the forum state while still in the stream of commerce,” but “[t]he defendant'scontacts must be more than ‘random, fortuitous, or attenuated, or of the unilateral activity ofanother party or third person.’” Ainsworth v. Moffett Eng'g, Ltd., 716 F.3d 174, 176-78 (5th Cir.2013), cert. denied, 134 S. Ct. 644, 187 L. Ed. 2d 420 (2013)) (omitting footnotes citing BurgerGustavo Rodriguez v. Feed Energy Company, et al Page 6 of21Plaintiff's Response to Defendant Feed Energy’s Verified Special Appearance Challenging Personal JurisdictionKing Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); [TL Int'l, Inc.v. Constenla, S.A., 669 F.3d 493, 498 (Sth Cir. 2012) Luv N' care, Ltd. v. Insta-Mix, Inc., 438 F.3d465, 470 (Sth Cir. 2006); Ruston Gas Turbines v. Donaldson Co., 9 F.3d 415, 419 (5th Cir.1993); Bearry v. Beech Aircraft Corp., 818 F.2d 370, 374 (Sth Cir. 1987)). It should be noted that World-Wide Volkswagen was a product liability case that involveda vehicle that was sold in New York but was involved in an accident in Oklahoma. World-WideVolkswagen Corp. v. Woodson, 444 U.S. 286 (1980). The United States Supreme Court rejectedthe defendant's claim that Oklahoma jurisdiction did not apply because the vehicle had been soldin another state. /d. Indeed, if the analysis was simply “where was the product sold”, then World-Wide Volkswagen and its progeny would be very short, simple opinions that do not look at all ofthe other conduct discussed herein. 2. “Purposeful Availment” Texas Courts appear to have adopted the “stream-of-commerce-plus” doctrine from JusticeO'Connor's plurality opinion in Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102,111-13 (1987). Numerous cases have outlined Texas' jurisdictional analysis under the “stream-of-commerce-plus” doctrine for purposes of determining “purposeful availment.” Moki Mac RiverExpeditions v. Drugg, 221 S.W.3d 569, 575-76 (Tex. 2007); see Michiana Easy Livin' Country,Inc. v. Holten, 168 S.W.3d 777, 76 (Tex. 2005). In the “purposeful availment” analysis, (1) thedefendant's contacts with Texas are considered, (2) the defendant's acts must have been purposefultather than random, fortuitous, or attenuated, and (3) the defendant must have sought some benefit,advantage, or profit by availing itself of the jurisdiction. Moncrief Oil Int'l v. OAO Gazprom, 414S.W.3d 142, 151 (Tex. 2013); IRA Res. V. Griego, 221 S.W.3d 592, 596 (Tex. 2007); MichianaEasy Livin' Country, Inc. v. Holten, 168 8.W.3d 777, 784-85 (Tex. 2005); e.g., Retamco Oper. Inc.Gustavo Rodriguez v. Feed Energy Company, et al Page 7 of21Plaintiff's Response to Defendant Feed Energy’s Verified Special Appearance Challenging Personal Jurisdictionv. Republic Drilling Co., 278 $.W.3d 333, 338-39 (Tex.2009); Riverside Exps., Inc. v. B.R. Crane& Equip., LLC, 362 8.W.3d 649, 652-53 (Tex. App—Houston [14" Dist.] 2011, pet. denied). TheTexas Supreme Court has stated that the facts “must indicate that the seller intended to serve theTexas market.” Moki Mac, 221 S.W.3d at 577. A defendant purposefully avails itself of the Texasforum if it does the following: *Puts products in the stream of commerce knowing that some of them will reach Texas;! and + Engages in additional conduct that indicates intent to serve the Texas market” Additional “purposeful” conduct for this analysis can include the following: » Designing the product for the Texas market;? + Advertising in Texas;* + Establishing channels of regular communication with Texas customers; > and + Marketing the product through a distributor who will sell the product in Texas. ° To determine whether contacts arising from internet activity are sufficient to establishpersonal jurisdiction, Texas courts consider three categories of Internet activity: (1) websites usedfor transacting business, (2) passive websites used only for advertising, and (3) interactive websitesthat allow for the exchange of information. A// Star Enter. v. Buchanan, 298 $.W.3d 404, 426-27(Tex. App.—Houston [14" Dist.] 2009, no pet.); Schexnayder v. Daniels, 187 S.W.3d 238, 248(Tex. App.—Texarkana 2006, pet. dism'd); Reiff v. Roy, 115 S.W.3d 700, 705-06 (Tex. App.—Dallas 2003, pet. denied); Michel v. Rocket Eng'g, 45 S.W.3d 658, 677 (Tex. App.—Fort Worth2001, no pet.); Daimler-Benz A.G. v. Olson, 21 S.W.3d 707, 725 (Tex. App.—Austin 2000, pet.dism'd).| Spir Star AG y. Kimich, 310 S.W.3d 868, 873 (Tex. 2010); Moki Mac, 221 $.W.3d at 576-77; see Michiana, 168 S.W.3d at 76; see also Zinc Nacional, S.A. v. Bouché Trucking, Inc., 308 $.W.3d 395, 397-98 (Tex.2010) (knowledge that goods will end up in forum sale is not sufficient; D must actually direct sales to forum state,not through it.)? Spir Star, 310 S.W.3d at 873; Moki Mac, 221 $.W.3d at 577; Michiana, 168 S.W.3d at 786.3 Spir Star, 310 S.W.3d at 873; Moki Mac, 221 $.W.3d at 577.41d.ST.idsGustavo Rodriguez v. Feed Energy Company, et al Page 8 of21Plaintiff's Response to Defendant Feed Energy’s Verified Special Appearance Challenging Personal JurisdictionIf the website is clearly used for business transactions, such as entering into contracts orrepeatedly transmitting information, it will generally be sufficient to establish minimum contacts.Schexnayder, 187 S.W.3d at 248; Exito Elecs. Co. v. Trejo, 166 S.W.3d 839, 857-58 (Tex. App.—Corpus Christi 2005, no pet.); Reiff, 115 S.W.3d at 705-06; Daimler-Benz, 21 S.W.3d at 725. If thewebsite is passive (i.e., used only to provide contact information or to advertise), it is insufficientto establish minimum contacts, even if it is accessible to Texas residents. Riverside Exps., 362S.W.3d at 655; Schexnayder, 187 S.W.3d at 248; Exito Elecs., 166 S.W.3d at 858; Reiff, 115S.W.3d at 706; see Waterman S.S.Corp. v. Ruiz, 355 S.W.3d 387, 412 (Tex. App.—Houston[1* Dist.] 2011, pet. denied). If the website is interactive, allowing for the exchange of informationbetween the potential customer and the person or company hosting the website, personaljurisdiction is determined by the degree of interaction. Schexnayder, 187 S.W.3d 248; Exito Elecs.,166 S.W.3d at 858 n. 16; Reiff, 115 S.W.3d at 706; Daimler-Benz, 21 S.W.3d at 725. The court willevaluate this middle ground based on the level of interaction and the commercial nature of theinformation exchanged. Experimental Aircraft Ass'n, Inc. v. Doctor, 76 S.W.3d 496, 507 (Tex.App—Houston [14" Dist] 2002, no pet.). Feed Energy’s website allows for communication with “Product Specialists, »7 allowswebsite users to “Become a Supplier,” “Collaborate with Feed Energy to construct a custom tanksystem to meet [] specific feed tank needs, 99 and “Calculate Tank Volume.”!° This interactivewebsite goes beyond simply providing advertising and contact information.7 https://feedenergy.com/about-us/the-lab/#8 https://feedenergy.com/about-us/the-lab/#° https://feedenergy.com/services/tank-installation/10 https://feedenergy.com/services/tank-calculatorGustavo Rodriguez v. Feed Energy Company, et al Page 9 of21Plaintiff's Response to Defendant Feed Energy’s Verified Special Appearance Challenging Personal Jurisdiction3. “Arising from or Related to” Under Texas Law Under Texas’ 16, purposeful availment” analysis, specific jurisdiction over a foreign entityexists where the claim “arises from or is related to” the foreign entity's purposeful activities inTexas. O'Brien v. Lanpar Co., 399 S.W.2d 340 (Tex. 1966); Moki Mac River Expeditions v. Drugg,221 S.W.3d 569, 579-80 (Tex. 2007)(“The ‘arise from or relate to’ requirement lies at the heart ofspecific jurisdiction by defining the required nexus between the nonresident defendant, thelitigation, and the forum”). This does not mean that, in a case such as this one, the product musthave been sold by the defendant in Texas. For example, the Texas Supreme Court interpreted the“arising from or related to” jurisdictional analysis in the 2010 case of Spir StarAG v. Kimich. OurSupreme Court echoed the analysis in Justice O'Connor's plurality opinion in the United StatesSupreme Court case of Asahi Metal Indus. Co. v. Superior Court of Cal.480 U.S. 102 (1987), which acknowledged that a defendant may be subjected to Texas jurisdictioneven when “the stream of commerce sweeps the product into” Texas, if certain factors are met.Spir Star AG v. Kimich, 310 S.W.3d 868, 873-874 (Tex. 2010). The Texas Supreme Court followed the Asahi plurality opinion, which requires additionalconduct beyond merely placing a product into the “stream of commerce” — commonly referred toas the “stream-of-commerce-plus” test: Notably, however, a seller's awareness ee that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State. oe Instead, our precedent generally follows Justice O'Connor's plurality opinion in Asahi, which requires some “additional conduct”—beyond merely placing the product in the stream of commerce-that indicates “an intent or purpose to serve the market in the forum State.” Id.Gustavo Rodriguez v. Feed Energy Company, et al Page 10 of21Plaintiff's Response to Defendant Feed Energy’s Verified Special Appearance Challenging Personal JurisdictionIn Spir Star the Texas Supreme Court followed the United States Supreme Court's holdingin World-Wide Volkswagen v. Woodson that “purposeful availment” could be either direct orindirect: As the United States Supreme Court stated in World-Wide Volkswagen Corp. v. Woodson, purposeful availment of local markets may be either direct (through one's own offices and employees) or indirect (through affiliates or independent distributors): [I]f the sale of a product of a manufacturer ... is not simply an isolated occurrence, but arises from the efforts of the manufacturer ... to serve directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others. Id. at 874 (citing World-Wide Volkswagen v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (emphasis added in Spir Star AG opinion)). The Texas Supreme Court affirmed the analyses offered in Spir Star in TV Azteca v. Ruiz,a case involving the broadcast of defamatory statements that originated in Mexico, and traveledinto parts of Texas, though not intentionally. TV Azteca v. Ruiz, 14-0186, 2016 WL 766927, at*12-14 (Tex. Feb. 26, 2016)(emphasis added).The Supreme Court upheld the denial of theMexican company's special appearance based on evidence that the foreign broadcaster hadphysically entered Texas to produce and promote other broadcasts, derived revenues by sellingadvertising in Texas, and had promoted itself in Texas as a means to increase advertising revenuein Texas. Jd. The Court held: This “substantial connection” standard does not require proof that the plaintiff would have no claim “but for” the contacts, or that the contacts were a “proximate cause” of the liability. Moki Mac, 221 S.W.3d at 584 (“[T]he but-for relatedness test is too broad and conceptually unlimited in scope, the substantive- relevance/proximate-cause test poses too narrow an inquiry. ”). Instead, we consider what the claim is “principally concerned with,” Moncrief Oil, 414 S.W.3d at 157, whether the contacts will be “the focus of the trial” and “consume most if not all of the litigation's attention,” and whether the contacts are “related to the operative facts” of the claim, Moki Mac, 221 S.W.3d at 585.58Gustavo Rodriguez v. Feed Energy Company, et al Page 11 of21Plaintiff's Response to Defendant Feed Energy’s Verified Special Appearance Challenging Personal JurisdictionWe expressly acknowledged this principle in Moki Mac, and explained, “In determining whether the defendant purposefully directed action toward Texas, we may look to conduct beyond the particular business transaction at issue: ‘[a]dditional conduct of the defendant may indicate an intent or purpose to serve the market in the forum State." 221 S.W.3d at 577 (quoting Asahi, 480 U.S. at 112, 107 S.Ct. 1026). Id., at *14-16 (Tex. Feb. 26, 2016) (emphasis added). Feed Energy obtained the requisite Texas license to manufacture or distribute commercialfeed in Texas, transported at least 11 loads of its products from Iowa to Texas, and sent the productinvolved in this incident from Iowa to Texas.!! It is clear that, under Texas’ jurisdictional analysis,aclaim “arises from or relates” to a party's purposeful acts when the subject matter of the claimgenerally relates to the type of business or contacts in the forum that the party engages in. 4. Specific Jurisdiction vs. General Jurisdiction The United States Supreme Court has refined the “minimum contacts” analysis into so-called specific and general jurisdiction. When specific jurisdiction is asserted, the cause of actionmust arise out of or generally relate to the nonresident defendant's contact with the forum state inorder to satisfy the “minimum contacts” requirement. Helicopteros, 466 U.S. at 414 n. 8; World-Wide Volkswagen, 444 U.S. at 293-94; Guardian Royal Exch. Assur., Ltd. v. English China Clays,PL.C., 815 S.W.2d 223, 227 (Tex. 1991). Additionally, the nonresident defendant's activities musthave been “purposefully directed” to the forum and the litigation must result from alleged injuriesthat “arise out of or relate to” those activities. Burger King, 471 U.S. at 472. When specificjurisdiction is asserted, the “minimum contacts” analysis focuses on the relationship among thedefendant, the forum, and the litigation. Helicopteros, 466 U.S. at 414; Schlobohm, 784 S.W.2d at357. Specific jurisdiction exists as it relates to Feed Energy based on its delivery of the productfrom Iowa to Texas, which as Plaintiff has pled was involved in causing this incident.1! See Exhibit 1 — Affidavit of Pat Collins; See Exhibit 2 - Texas Feed and Fertilizer Control Service Active LicensesGustavo Rodriguez v. Feed Energy Company, et al Page 12 of21Plaintiff's Response to Defendant Feed Energy’s Verified Special Appearance Challenging Personal JurisdictionGeneral jurisdiction may be asserted when the cause of action does not arise from or relateto the nonresident defendant's purposeful conduct within the forum state, but when thereare continuous and systematic contacts between a nonresident defendant and the forum state thatdemonstrate that the forum is in essence a “home state” of the nonresident. See, generally, DaimlerAG v. Bauman, 134 S. Ct. 746 (2014) (citing Goodyear Dunlop Tire Operations, S.A. v. Brown,131 S. Ct. 2846 (2011); Helicopteros, 466 U.S. at 414-16; Schlobohm, 784 S.W.2d at 357). The“minimum contacts” inquiry is broader and more demanding when general jurisdiction is alleged,requiring a showing of substantial activities in the forum state. Guardian Royal Exch., 815 8.W.2dat 228; Schlobohm, 784 S.W.2d at 357. General jurisdiction exists as Feed Energy has continuousand systematic contacts with Texas because it applied and obtained to allow it to manufacture ordistribute commercial feed in Texas, along with Feed Energy shipping numerous railcars ofproduct from Iowa to Texas. 5. “Fair Play and Substantial Justice” Once it has been determined that a nonresident defendant has purposefully established“minimum contacts” with the forum state, the contacts are evaluated in light of other factors todetermine whether the assertion of personal jurisdiction comports with “fair play and substantialjustice.” Asahi, 480 U.S. at 113-15; Burger King, 471 U.S. at 476. Such factors include (1) theburden on the defendant, (2) the interest of the forum state in adjudicating the dispute, (3) theplaintiff's interest in obtaining convenient and effective relief, (4) the interstate judicial system'sinterest in obtaining the most efficient resolution of controversies, and (5) the shared interest ofthe several states in furthering fundamental substantive social policies. World-Wide Volkswagen,444 USS. at 292.Gustavo Rodriguez v. Feed Energy Company, et al Page 13 of21Plaintiff's Response to Defendant Feed Energy’s Verified Special Appearance Challenging Personal JurisdictionTexas has devised its own formula to ensure compliance with federal constitutionalstandards for exercising personal jurisdiction over a nonresident defendant. First, the nonresidentdefendant must have purposefully established “minimum contacts” with Texas. Guardian RoyalExch., 815 S.W.2d at 230. In analyzing “minimum contacts”, it is not the number, but rather thequality and nature, of the nonresident defendant's contacts with the forum state that is significant.Texas Commerce Bank Nat'l Ass'n v. Interpol ‘80 Partnership, 703 S.W.2d 765, 772 (Tex.App. —Corpus Christi 1985, no writ). There must be a “substantial connection” between the nonresidentdefendant and Texas arising from action or conduct of the nonresident defendant purposefullydirected toward Texas. Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102 (1987); J.McIntyre Machinery, Ltd. v. Nicastro, 131 S.Ct. 2780 (2011); Goodyear Dunlop Tires Operations,S.A. v. Brown, 131 S.Ct 2846 (2011); Daimler AG v. Bauman, 134 S.Ct. 746 (2014). When specific jurisdiction is asserted, as it is here, the cause of action must arise out of orgenerally relate to the nonresident defendant's contacts with Texas. When general jurisdiction isalleged, on the other hand, there must be continuous and systematic contacts between thenonresident defendant and Texas, such that the defendant is essentially “at home” in the forum. Inapplying the jurisdictional formula to a particular case, the facts must be carefully weighed andmechanical application of any test, including the Texas formula, must be avoided. Schlobohm, 784S.W.2d at 358; Burger King, 471 U.S. at 477-78. 6. Specific and General Jurisdiction Exists in the case as to Feed Energy The test for specific jurisdiction in Texas is the “stream of commerce plus” test, whichsubjects a Defendant to specific personal jurisdiction when a Defendant puts products in the streamof commerce knowing that some of them will reach Texas,'? and engages in additional conduct12 Spir Star AG v. Kimich, 310 8.W.3d 868, 873 (Tex. 2010); Moki Mac, 221 S.W.3d at 576-77; see Michiana, 168S.W.3d at 76; see also Zinc National, S.A. v. Bouché Trucking, Inc., 308 S.W.3d 395, 397-98 (Tex.Gustavo Rodriguez v. Feed Energy Company, et al Page 14 of21Plaintiff's Response to Defendant Feed Energy’s Verified Special Appearance Challenging Personal Jurisdictionthat indicates intent to serve the Texas market.'? Further, Feed Energy, maintains a substantialpresence and have continuous and systematic contacts and conduct substantial business in Texas,such that general jurisdiction over them is proper. Plaintiff’s Petition alone makes clear that this Court has personal jurisdiction over FeedEnergy. Plaintiff’s petition states in part: 4.03 Feed products were sent using this railcar by Defendant Feed Energy to Link Feed Ingredients in Hereford, Texas where Plaintiff worked. 4.04 On or about August 10, 2023, Gustavo Rodriguez was working for Link Feed Ingredients, LLC, unloading the feed product from the railroad tanker. After being instructed to open the tanker’s top hatch, an explosion occurred severely injuring and burning Gustavo Rodriguez over the majority of his body. 5.01 Defendant Feed Energy was negligent in many respects, including, but not limited to, the following: a) Failing to maintain the railcar; b) Failure to clean rail car properly; c) Failure to ensure the products it transported could be transported safely; qd) Failure inspect its products for flammable materials; e) Failure to warn of flammable materials inside of railcar; Allowing the mixture of flammable and nonflammable materials within the railcar; 8) Failure to properly handle its products prior to, and during, transportation; h) Failure to warn of the hazards related to the product it transported; i) Endangering others by failing to disclose the transportation of hazardous materials and products; and i Failing to provide, implement, and/or enforce adequate safety policies and procedures necessary to prevent cross-contamination of flammable and non- flammable materials. 5.02 At any time when it is alleged that Defendant Feed Energy acted or failed to act, it did so by and through its agents, officers, employees, borrowed employees, servants, principals and vice principals acting within the course and scope of their agency, employment or other relationship.2010) (knowledge that goods will end up in forum sale is not sufficient; D must actually direct sales to forum state,not through it.)13 Spir Star, 310 S.W.3d at 873; Moki Mac, 221 S.W.3d at 577; Michiana, 168 8.W.3d at 786.Gustavo Rodriguez v. Feed Energy Company, et al Page 15 of21Plaintiff's Response to Defendant Feed Energy’s Verified Special Appearance Challenging Personal JurisdictionIt is undisputed that the product which was transported from Iowa to Texas wasmanufactured and placed into the stream of commerce by Feed Energy.'* Moreover, in its motion,Feed Energy does not dispute that it transported product purchased from Feed Energy from Iowato Texas. Specifically, Feed Energy sold the product that it knew would be transported to Texas,loaded the product to be transported to Texas, and was involved in transporting the product fromits Iowa facility to Texas. Considering the 11 loads of product that Feed Energy sent to Texas, itis clear that Feed Energy was aware its product would reach Texas and that Feed Energy intendedto serve the Texas market. Additionally, Feed Energy’s actions in applying for an obtaining therequisite license and shipping at least 11 loads to Texas clearly shows that Feed Energy maintainsa substantial presence and has continuous and systematic contacts and conduct substantial businessin Texas. Specific to this matter, the railcar involved in this incident had taken two loads from Iowato Texas in 2023, in the months prior to this incident. It was first loaded with product at a FeedEnergy facility in Iowa and transported from Iowa to Hereford, TX in June of 2023.'° FeedEnergy’s product was unloaded in Hereford, TX and the railcar returned to lowa to be reloadedwith more product.'’ The railcar then made a second trip from Iowa to Hereford, TX to deliver asecond load of Feed Energy’s product in July of 2023.'* After arriving in Hereford, TX for thesecond time, Gustavo Rodriguez began unloading the product, when the incident made the basisof this lawsuit occurred.!°' See Exhibit 1 Affidavit of Pat Collins15 Id.8 Id.“Id.8 Td.Id.Gustavo Rodriguez v. Feed Energy Company, et al Page 16 of21Plaintiff’s Response to Defendant Feed Energy’s Verified Special Appearance Challenging Personal JurisdictionMoreover, on at least 11 other occasions, Feed Energy has transported loads of purchasedproduct from Iowa to Texas.”° As set out in the Affidavit of Pat Collins attached hereto, FeedEnergy has transported 11 loads from Iowa to Texas on behalf of Agridyne/Plains StatesCommodities both before and after this incident. Feed Energy also engages in additional conduct to serve the markets outside of Iowa,including Texas, which again supports jurisdiction, such as designing products for the Texasmarket, advertising in Texas, establishing channels of regular communication with Texascustomers, and marketing its products in Texas. As, in Daimler-Benz A.G. v. Olson, 21 S.W.3d 707, 725 (Tex. App.—Austin 2000, pet.dism'd), the Defendant's interactive website that allowed customers to submit comments andquestions to the Defendant's representatives and to receive emails from the Defendant wasconsidered a sufficient contact for the exercise of jurisdiction. This is significant, as Feed Energymaintains an interactive website, which is used to communicate with “Product Specialist” andallows users to become suppliers of its products and is used to guide Texas consumers to throughestablishing their specific needs for products, tank installation, maintenance, and monitoringtelated to product storage. 21 For Example, Feed Energy’s Website provides the followinginteractive options: 3 inten “SS TS SUNN >) |351c) eee fo corey PNT UOC Teo BTB ie tac) RRA rte Reiat- lia)0 Td.21 https://feedenergy.com/Gustavo Rodriguez v. Feed Energy Company, et al Page 17 of21Plaintiff's Response to Defendant Feed Energy’s Verified Special Appearance Challenging Personal Jurisdiction5 feteneom formance, hog ou commitment 2 nd= custom satacton. ie basi) |e) 6 rents co fees Ce oor ‘Tank installation Remote Tank Monitoring ia I :I Construct a custom tank system a tomate the Efient Ope 7 Tank Maintenance i Maintain Smooth Operations Gow assis a one ic ener ein cor Calculate Your Tank Volume Fed etka gue te vote ora tym n ete rer mesaremens inet = Eo Most importantly, Feed Energy has an active feed license with the Texas Feed and FertilizerControl Service which was established through Texas Agricultural Code.”2 See Exhibit 2 - Texas Feed and Fertilizer Control Service Active LicensesGustavo Rodriguez v. Feed Energy Company, et al Page 18 of21Plaintiff's Response to Defendant Feed Energy’s Verified Special Appearance Challenging Personal Jurisdiction———————————————_———————————_—_—— calls, Ki TEXAS ABM. TEXAS FEED & FERTILIZER CONTROL SERVICEHome > Repors > Active Feed Licensee Webmail Home Active Feed Licensee About FFCS » Feed Guarantor and Guarantor with Facility Laws/Rules/Policies b Total Firms: 2439 Date: 3/5/2024 1:23:06 PM Reports » Permit Company Name ‘Company Address Risk Management > No. ee ‘OLMITO, TX 78575 FEED ENERGY COMPANY 3121 DEAN AVE DES MOINES, 1A 50317 12444 POWERSCOURT DRIVE. SUITE 190 The Texas Feed and Fertilizer Control Service may adopt rules as necessary forenforcement, including rules defining and establishing minimum standards for commercial feed.Tex. Agric. Code §§ 141.003 and 141.004. Moreover, Sec. 141.021(a) states that “[a] person maynot manufacture or distribute commercial feed in this state without a valid current license issuedby the service for each feed facility that manufactures or distributes commercial feed. Tex. Agric.Code § 141.021 (emphasis added). There can be no doubt that by applying for and obtaining alicense to manufacture and distribute feed in Texas, Feed Energy has “minimum contacts” withTexas by purposefully availing itself of the privilege of conducting activities in Texas, as well ascontinuous and systematic contacts with Texas. Moreover, exercising jurisdiction comports withtraditional notions of fair play and substantial justice based on Feed Energy’s licensing withinTexas. These “minimum contacts” also demonstrate the requisite showing of substantial activitiesin Texas, such that Feed Energy is essentially at home in Texas and is subject to general personaljurisdiction. Guardian Royal Exch., 815 8.W.2d at 228; Schlobohm, 784 S.W.2d at 357.Gustavo Rodriguez v. Feed Energy Company, et al Page 19 of21Plaintiff's Response to Defendant Feed Energy’s Verified Special Appearance Challenging Personal JurisdictionB. Additional Discovery May Be Necessary Before Granting a Special Appearance Additional discovery on jurisdictional issues should be conducted prior to dismissal ofPlaintiff’s claims against Defendant Feed Energy. Tex. R. Civ. P. 120(a)(3) states “The court shalldetermine the special appearance on the basis of the pleadings, ...such affidavits and attachmentsas may be filed by the parties, the results of discovery processes, and any oral testimony.” TheTexas Supreme Court has described “relevant discovery” as “a vital part of resolving a specialappearance.” Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 307 (Tex. 2004); also see In reChristianson Air Conditioning & Plumbing, LLC, 639 S.W.3d 671, 677 (Tex. 2022). Granting adismissal of Plaintiff’s claims before the parties conduct discovery would be improper. Feed Energy provided initial disclosures in this matter but did not name a single Feed 1.23Energy witness and did not provide a single document Plaintiff has also requested depositionsmultiple times in this matter, but no party has provided dates for depositions of relevant witnesses.While the evidence presented in this response establishes that this Court has personal jurisdictionover Feed Energy, Plaintiff should be a 

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