DISSENT; Opinion Filed January 11, 2022 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-20-00558-CV 

FOREVER LIVING PRODUCTS INTERNATIONAL, LLC, A NEVADA 

LIMITED LIABILITY COMPANY, AND ALOE VERA OF AMERICA, 

INC., A TEXAS CORPORATION, Appellants 

V. 

AV EUROPE GMBH, A GERMAN LIMITED LIABILITY COMPANY, 

Appellee 

On Appeal from the 191st Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DC-19-00270 

DISSENT FROM DENIAL OF EN BANC REHEARING 

Before the Court sitting En Banc. 

Opinion by Justice Schenck 

I dissent from this Court’s denial of appellee’s motion for rehearing en banc 

because the panel opinion conflicts with an en banc decision of this Court and further 

because I have concerns with applying the “nerve center” test developed for use in 

determining federal diversity to the separate and distinct legal (constitutional) 

question of personal jurisdiction. The panel opinion deprives the defendant-appellee 

of both substantive and procedural protections contrary to the rights guaranteed by 
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the federal and state constitutions as read by our supreme court and this Court sitting 

en banc. 

As a matter of substance, our supreme court has read the Texas long-arm 

statute to be co-extensive with the maximal limits of the federal constitutional 

requirements of due process. See Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 

199, 200 (Tex. 1985) (per curiam). The United States Supreme Court has recognized 

two due process warrants for application of a state’s long-arm statute: (1) specific 

jurisdiction, which focuses on the strength of the nexus between the defendant, the 

forum, and the litigation; and (2) general jurisdiction, which requires no relationship 

to the litigation but obtains where the defendant’s contacts with the forum are so 

continuous and systematic that a defendant should reasonably anticipate being sued 

there for any matter regardless of its connection with the forum. See Moki Mac River 

Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex. 2007). 

Our panel opinion finds general jurisdiction here, making the defendant 

subject to suit in Texas for all litigation regardless of its relation to this state. Thus, 

if a citizen in Germany should slip and fall on the steps of a property owned by the 

defendant-appellee this winter, our opinion would render Texas a constitutionally 

appropriate forum for the resulting suit.1

 This conclusion stems not from the volume 

1

 Oddly, we arrive at this result as to a corporation that is dormant and not “doing business” anywhere 

within the literal text of our long-arm statute. See Forever Living Prods. Int’l v. AV Europe GMBH, No. 

05-20-00558-CV, 2021 WL 3276876, at *4 (Tex. App.—Dallas July 30, 2021, no pet.) (“In approximately 

June 2018, AV Europe stopped conducting business.”). As I understand it, we arrive at the conclusion that 

it is more engaged in the business of “not doing” business in Texas more than anywhere else because it 
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or quality of its forum contacts viz the foreseeability of litigation there so as to make 

all forms of litigation consistent with “fair play and substantial justice,” but from the 

application of the “nerve center” test used in the federal diversity statute to deem the 

domicile of a corporation for purposes of federal subject matter jurisdiction. E.g.,

Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 927 (2011) (“A 

corporation’s ‘continuous activity of some sorts within a state,’ . . . ‘is not enough 

to support the demand that the corporation be amenable to suits unrelated to that 

activity.’” (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 318 (1945))). 

As I understand the due process “fair play and substantial justice” standard 

adopted by the United States Supreme Court in International Shoe and borrowed in 

our long-arm statute, it poses a constitutional question of amenability to the demand 

of a government, state or federal, to appear and answer suit in its courts. See Int’l 

Shoe, 326 U.S. at 316. The federal diversity statute poses a totally distinct question 

of whether subject matter jurisdiction might obtain and thus whether suit might be 

brought in a federal, as opposed to state, court but in all events against parties who, 

obviously, are also subject to personal jurisdiction as both forms of jurisdiction are 

necessary. CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996) (citing Ins. Corp. of 

Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982)). Because 

federal and state courts alike may exercise personal jurisdiction over defendants 

employs an agent who chose to make his home in Texas. See id. Presumably, if that same employee chose 

to live and remotely work from his lake house in Little Rock, Arkansas, his employer should anticipate 

being subject to a judgment in Arkansas as well as in Germany. 
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only in compliance with the due process limits, Congress (or courts) recognizing 

diversity jurisdiction based on deemed citizenship and, perhaps, even minimal 

diversity poses only a conflict between the federal and state systems, not a threat to 

the constitutional rights of the defendant to avoid an alien forum. 

While the United States Congress can create diversity jurisdiction and deemed 

residences for purposes of recognizing federal subject matter jurisdiction,2

 it does 

not have the ability to reimagine the Due Process Clause to create personal 

jurisdiction over a foreign corporation. So far as I understand it, neither the Texas 

Legislature nor the United States Congress has purported in any legislative 

enactment to alter the reading of the Due Process Clause, nor could they. See 

Marbury v. Madison, 5 U.S. 137, 180 (1803); see also Howlett v. Rose, 490 U.S. 

356, 357 (1990); Cooper v. Aaron, 358 U.S. 1, 16–17 (1958). Because personal 

jurisdiction is solely a federal constitutional due process issue, the answer to that 

question is to be found in the U.S. reports, not the U.S. Code. Looking to those 

pages, the answer here is clear. See Int’l Shoe, 326 U.S. at 316.3

 

2

 Ironically, the broad federal control over diversity jurisdiction extends most liberally to aliens 

precisely because of the fear of offending foreign sovereigns by subjecting their citizens to suit in local 

tribunals. Kevin R. Johnson, Why Alienage Jurisdiction? Historical Foundations and Modern 

Justifications for Federal Jurisdiction over Disputes Involving Noncitizens, 21 YALE J. INT’L L. 1, 10–16 

(1996). Deeming such defendants to be amenable to suit in state court because federal subject matter 

jurisdiction would recognize a federal forum to protect them from suit in state court seems to put matters 

backwards. 

3

 It seems to be a trend among lower courts to apply the nerve center test to the question of general 

jurisdiction. See D.E. Wagner, Hertz So Good: Amazon, General Jurisdiction’s Principal Place of 

Business, and Contacts Plus As the Future of the Exceptional Case, 104 CORNELL L. REV. 1085, 1106 

(2019). Nevertheless, answering one question by asking a different question does not advance the analysis. 
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Separate and apart from the substantive question, the effort to subject this 

defendant to suit in Texas raises procedural concerns that have been long settled by 

our supreme court and were recently addressed by this Court sitting en banc that 

foreclose the notion that a defendant is to be subjected to jurisdiction on grounds 

neither alleged in the petition nor supported by proof on disposition of the special 

appearance challenge. Nowhere in the petition is general jurisdiction asserted, nor 

is there any reference to “continuous and systematic contacts” with Texas.4

 Instead, 

because the appellant-defendant went to the effort of addressing and offering proof 

that it was not subject to general jurisdiction in challenging jurisdiction, the panel 

held the defendant to the burden to disprove all potential bases (pleaded or not) for 

that exercise, rather than simply asking whether the appellant-defendant successfully 

negated or disproved the jurisdictional facts alleged in the petition. 

This burden assumption is contrary to what I understood to be our en banc 

holding that “the plaintiff must meet its initial burden on special appearance by 

pleading, in its petition, sufficient allegations to invoke jurisdiction under the Texas 

long-arm statute.” See Steward Health Care Sys. LLC v. Saidara, 633 S.W.3d 120, 

129 (Tex. App.—Dallas 2021, no pet.) (en banc) (emphasis in original); see also

Forever Living Prods. Int’l, 2021 WL 3276876, at *2. In other words, if the plaintiff 

has not alleged jurisdictional facts, a defendant is not obliged to anticipate and 

4 See Forever Living Prods. Int’l, 2021 WL 3276876, at *4 (construing petition’s allegation that 

appellant is “operating in Dallas County” to be “broad enough to encompass the premise that AV Europe’s 

nerve center is in Texas”). 
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disprove them, or render itself subject to an exercise of personal jurisdiction for 

having sought to disprove a basis for jurisdiction that is not alleged by introducing 

some evidence to negate it at the peril of the court identifying others. Under Moki 

Mac, the burden of establishing jurisdiction always remains on the plaintiff, and the 

burden of producing evidence may switch to the defendant where the plaintiff has 

made an allegation giving rise to a presumption. See Saidara, 633 S.W.3d at 140 

(Schenck, J., concurring) (citing Moki Mac, 221 S.W.3d at 574). 

CONCLUSION 

Because the Court’s opinion expands congressional power over federal 

subject matter jurisdiction beyond its constitutional scope and conflicts with prior 

en banc precedent, I dissent from the Court’s denial of the request for en banc 

reconsideration. 

200558DF.P05 

/David J. Schenck/

DAVID J. SCHENCK 

JUSTICE