REVISED May 2, 2008

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-41232

VELKIS JOHNSTON; NATASHA CHANDLER; MINERVA CHANDLER;

WALTER CHANDLER; CECILIA CRUZ NAVARRO DE VERGARA; ET AL

Plaintiffs - Appellees

v.

MULTIDATA SYSTEMS INTERNATIONAL CORP; MDS NORDION INC;

MDS CANADA INC; MDS INC

Defendants - Appellants

Appeal from the United States District Court for the 

Southern District of Texas, Galveston

Before KING, STEWART, and PRADO, Circuit Judges.

KING, Circuit Judge:

Defendants-appellants Multidata Systems International Corp., MDS Inc.,

MDS (Canada) Inc., and MDS Nordion Inc. (collectively “Defendants”) appeal the

district court’s interlocutory order refusing to dismiss this case: (1) for lack of

personal jurisdiction; (2) as barred by the doctrines of res judicata and direct

estoppel; and (3) for forum non conveniens. Because we find that Texas cannot

exercise general jurisdiction over Defendants, and the plaintiffs-appellants

United States Court of Appeals

Fifth Circuit

F I L E D

April 7, 2008

Charles R. Fulbruge III

Clerk
No. 07-41232

2

(“Plaintiffs”) do not allege that specific jurisdiction exists, we reverse the district

court’s order. We do not consider the remaining issues.

I.

This is the third suit that Plaintiffs have brought in the United States

against Defendants, Multidata Systems International Corp. (“Multidata”), a

Delaware corporation with its principal place of business in St. Louis, Missouri,

and three Canadian corporations, MDS Inc. (“MDS”), MDS (Canada) Inc. (“MDS

Canada”), and MDS Nordion Inc. (“MDS Nordion”), for personal injuries to

themselves or their decedents. Plaintiffs or their decedents were cancer patients

who received radiation therapy at the Instituto Oncologico Nacional (“ION”) in

Panama City, Panama, between August and December 2000. During this time,

they were over-exposed to radiation, resulting in serious injuries and several

deaths. Most of the plaintiffs are citizens and residents of Panama, although

Plaintiffs claim that six of the surviving representatives are citizens or

authorized residents of the United States. Not one of the injured plaintiffs or

decedents is a Texas resident.

Plaintiffs or their decedents were treated at ION with a Theratron 780C

Teletherapy Unit (“Theratron Unit”) in conjunction with a Treatment Planning

System (“TPS”). The Theratron Unit is a cancer-treating radiation device that

delivers therapeutic Cobalt radiation to cancer patients. It was originally

designed and manufactured by Theratronics International Ltd. (“Theratronics”),

a Canadian corporation. The unit in use at ION was, in fact, sold by

Theratronics in 1992. In 1998, however, the Canadian Development Investment

Corporation sold Theratronics to MDS, which, in turn, sold Theratronics to its

wholly-owned subsidiary, MDS Nordion. In 2001, MDS Nordion ceased to exist

as a corporate entity when it merged with MDS Pharma Services, Inc., another

wholly-owned subsidiary of MDS, to form MDS Canada.
No. 07-41232

3

The TPS, meanwhile, is a stand-alone computer and software system

manufactured by Multidata. It is used to assist physicists in calculating

radiation dosages, distribution, and treatment times for cancer patients. The

TPS considers numerous factors in making its calculations, including the

prescription from the doctor, the distance the patient is located from the

radiation source, the depth of the tumor being treated, and the number of

“shielding blocks” used in conjunction with the radiation treatment. A shielding

block is a material designed to shape the radiation beam to protect a patient’s

healthy organs and sensitive tissue. The TPS was designed to perform

calculations using up to four shielding blocks.

In or around August 2000, one of the radiation oncologists at ION

requested a treatment plan that used five shielding blocks. Although the TPS

was not designed to calculate the proper level of radiation dosages under such

circumstances, ION doctors and physicists determined that they could

manipulate the data entry procedure by making it appear that five shielding

blocks were actually one shielding block. Unfortunately, when the data was

entered into the TPS using this new method, the dose calculation was incorrect.

As a result, an over-dosage of radiation was prescribed, sometimes in excess of

twice the amount of radiation that should have been administered.

Once the effects ofthe over-radiation surfaced,the government of Panama

requested separate investigations by the International Atomic Energy

Association (“IAEA”) and a group of physicians and physicists from M.D.

Anderson Cancer Center (“M.D. Anderson”) in Houston, Texas. Both the IAEA

and the M.D. Anderson doctors published reports explaining their understanding

of the events leading to the over-radiation. Both reports concluded that the

patients received excess radiation because the TPS was erroneously reconfigured to calculate the amount of radiation necessary when using five

shielding blocks. In addition, the ION doctors and physicists were faulted for
No. 07-41232

4

failing to: (1) manually verify the TPS’s calculations; or (2) simulate treatment

plans by irradiating a water phantom and measuring the dosage. Moreover,

ION staff were faulted for failing to compare the newly calculated dosage levels

to similar prior treatments and failing to detect early symptoms of excessive

radiation exposure in the patients being over-exposed to radiation by the new

treatment plan.

Ultimately, as a result of these and other investigations, the ION doctors

and physicists that caused Plaintiffs’ over-radiation were sanctioned or

prosecuted to varying degrees by the Panamanian government. An ION

radiation oncologist and three physicists lost their licenses to practice medicine

in Panama. In addition, two of the three physicists were criminally convicted in

Panama of negligent homicide.

On October 17, 2001, Plaintiffs filed a lawsuit in the Circuit Court of the

County of St. Louis, Missouri, against Defendants. Plaintiffs alleged that they

suffered from the effects of excess radiation because theTheratron Unit and TPS

were defective. They sought damages for wrongful death and negligence.

Defendants immediately moved for dismissal on forum non conveniens grounds,

arguing that the case should be heard in Panama where most of Plaintiffs lived,

where the Plaintiffs or their decedents were injured, and where most of the

witnesses and evidence were located. Plaintiffs responded that Missouri was a

convenient forum because Multidata was located there. Moreover, Plaintiffs

argued that Panama was not an available alternative forum because: (1)

Panama’s judicial system was corrupt; and (2) Panama would not accept

jurisdiction over a case previously dismissed from a foreign jurisdiction. After

permitting discovery, the state trial court held a three day evidentiary hearing

to determine whether the action should be dismissed. Both Plaintiffs and

Defendants presented expert testimony concerning the availability of Panama

as an alternative forum.
No. 07-41232

5

Before the Missouri trial court reached a decision, however, one of the

Plaintiffs filed a petition in the San Miguelito Judicial District Court of Panama

against Defendants. Before Defendants were served with the petition or

otherwise notified of the filing, the Panamanian court dismissed the case for

want of jurisdiction. Plaintiffs notified the Missouri trial court of this outcome

and sought to rely on the dismissal from the Panamanian court to prove that

Panama was not an available alternative forum. Defendants objected to the

consideration of the ruling, claiming that the case was filed in the wrong venue

and that they were never given the opportunity to waive jurisdictional defects.

On January 8, 2004, the Missouri trial court granted Defendants’ motion

to dismiss without prejudice in a brief order on forum non conveniens grounds.

The state trial court explicitly ruled that Plaintiffs could re-file in Missouri if

Panama refused jurisdiction, stating:

[r]econsideration may be given to the refiling of this cause in this

jurisdiction if a determination is made by a Panamanian court of

competent jurisdiction and venue for this cause that jurisdiction

does not exist in Panama and the Defendants were given the

opportunity to submit to the jurisdiction of the Panamanian court or

were given notice of such filing so as to be able to present their

position to the court on the issue of jurisdiction.

Chandler v. Multidata Sys. Int’l Corp., No. 01CC-3634, slip op. at 2 (Mo. Cir. Ct.

Jan. 8, 2004) (emphasis added).

Plaintiffs appealed the state trial court’s decision to the Missouri Court of

Appeals for the Eastern District of Missouri. On May 10, 2005, the Missouri

Court of Appeals affirmed the decision in a published opinion. Chandler v.

Multidata Sys. Int’l Corp., 163 S.W.3d 537 (Mo. Ct. App. 2005). Amongst other

holdings, the Missouri Court of Appeals upheld the trial court’s finding that

Panama was an available alternative forum because Defendants proved that a

dismissal from a foreign jurisdiction would not prohibit re-filing in Panama. Id.

at 546-49. The Missouri Court of Appeals distinguished Plaintiffs’ case from
No. 07-41232

6

Canales Martinez v. Dow Chemical Co., 219 F. Supp. 2d 719 (E.D. La. 2002),

where a federal district court found that Costa Rica was not an available forum

because Costa Rica barred litigants from filing cases dismissed from foreign

courts for forum non conveniens. Chandler, 163 S.W.3d at 547-48. The Missouri

Court of Appeals stated that “unlike the plaintiffs in Canales, Plaintiffs fail to

demonstrate which sections of Panama’s Judicial or Civil Codes prohibit

Plaintiffs from re-filing this cause of action in Panama.” Id. at 547.

Plaintiffs neither appealed to the Missouri Supreme Court nor re-filed in

Panama. Instead, Plaintiffs filed four new cases in the Circuit Court of the

County of St. Louis, Missouri. Plaintiffs argued that they had complied with the

original Missouri court order because the Panamanian Court of Appeals

subsequently affirmed the dismissal of the San Miguelito action. In response,

Defendants moved to dismiss, arguing that they were not given the opportunity

to be heard before the Panamanian trial court or to waive jurisdictional

objections. On March 16, 2006, the four consolidated cases were dismissed by

the Missouri trial court, which stated that:

Plaintiffs have not proven that this cause cannot be

litigated in Panama. Plaintiffs have previously filed

their claims in Panama and in this Court. Both

jurisdictions dismissed the cases. Plaintiffs’ filing was

not with the proper Panamanian Court. In addition,

the law of the case doctrine herein, as well as, parts of

the doctrine of res judicata apply to require plaintiffs to

re-file these claims in Panama. If Panama refuses to

proceed, the claims can be refiled in Missouri. Cause is

dismissed without prejudice.

Navarro v. Multidata Sys. Int’l Corp., No. 05CC-3136, slip op. at 2 (Mo. Cir. Ct.

Mar. 16, 2006).

On May 15, 2006, rather than filing in Panama, Plaintiffs filed the instant

suit in the United States District Court for the Southern District of Texas,
No. 07-41232

1 On May 26, 2006, four of the plaintiffs finally re-filed their claims in a Panamanian

Court, namely, the Judicial District Court for Panama City, Panama. Once again, however,

the case was promptly dismissed, and Defendants were again unable to waive any

jurisdictional defects because the petition was not served upon Defendants until after the suit

was dismissed. Defendants allege that this lawsuit was dismissed because it was filed in the

wrong venue and, below, argued that the petition was not filed in good faith because a large

portion of it argued that the Panamanian court lacked any jurisdiction.

7

Galveston Division.1 Plaintiffs’ claims were essentially the same as those

brought in the Missouri state actions, including, amongst others, counts for

wrongful death and personal injuries caused by negligent design and

manufacturing ofthe Theratron Unit and the TPS. On July 5, 2006, Defendants

separately moved to dismiss the case for lack of personal jurisdiction, as barred

by the doctrines of res judicata and direct estoppel, and on forum non conveniens

grounds. Defendants argued that the case was barred because the Missouri

state courts’ decisions precluded Plaintiffs from litigating the case in the United

States. Before Plaintiffs filed a response, at an August 2, 2006, scheduling

hearing, the district court ordered that discovery be conducted into the issues.

On February 9, 2007, after conducting discovery, Defendants re-moved to

dismiss this case for lack of personal jurisdiction, as barred by the doctrines of

res judicata and direct estoppel, and for forum non conveniens. In response,

Plaintiffs argued that: (1) the district court could exercise general jurisdiction

over Defendants; (2) the Missouri state courts’ decisions were not res judicata

because the decisions merely prohibitedPlaintiffs from re-filing in Missouri; and

(3) the case could not be dismissed for forum non conveniens because Panama

was not an available alternative forum.

On April 30, 2007,the district court denied the motions to dismiss without

holding an evidentiary hearing, holding that Defendants had sufficient

continuous and systematic contacts with Texas such that general jurisdiction

existed. Moreover, the district court held that the Missouri trial courts’

dismissals for forum non conveniens were not res judicata in a Texas federal
No. 07-41232

2 During oral argument, we were informed that the Panamanian National Assembly

has since repealed Article 1421-J. Because we decide this case on personal jurisdictional

grounds, we do not have to weigh the effect of this repeal on our review of the district court’s

res judicata or forum non conveniens decisions.

8

court because the convenience of litigating the case in Missouri was different

than the convenience of litigating the case in Texas. Finally, the district court

refused to dismiss the case for forum non conveniens because Panama was no

longer an available forum. On August 1, 2006, the Panamanian National

Assembly had enacted Panamanian Assembly Law No. 32, chapter 4, § 2, article

1421-J (“Article 1421-J”), which stated that: “Lawsuits that are brought in the

country as a result of a foreign judgment of forum non conveniens, impede

national competence from being generated. Therefore, they must be rejected ex

officio by reason of incompetence for constitutional order reasons or for

preventive competence provisions.” (Translation by M. Delgado Debali, Certified

Pub. Translator, Aug. 4, 2006). While the constitutionality of this law was

immediately challenged by the Panamanian Attorney General in the

Panamanian Supreme Court, a decision had not been rendered, and the district

court was unwilling to overlook positive Panamanian law.2

On May 14, 2007, Multidata and the Canadian defendants filed separate

motions requesting that the district court certify portions of its April 30, 2007,

order for interlocutory appeal under 28 U.S.C. § 1292(b), including the denial of

Defendants’ motions to dismiss for lack of personal jurisdiction and as barred by

the doctrines of res judicata and direct estoppel. In addition, the Canadian

defendants moved to certify the forum non conveniens decision. Plaintiffs

opposed the motions and, on July 11, 2007, the district court denied the motions

because the “case [was] not momentous enough to justify an unwarranted

intrusion into the [Fifth] Circuit’s time.” However, on November 14, 2007, the

district court sua sponte reconsidered the motions for interlocutory appeal,

vacated the order denying the motions, and certified the April 30, 2007, order for
No. 07-41232

9

immediate appeal. Accordingly, Multidata and the Canadian defendants filed

petitions for permission to appeal with this court.

On December 12, 2007, a panel of this court granted the petitions. We

need only consider the personal jurisdiction question to resolve the case.

II.

The plaintiff bears the burden of establishing a district court’s jurisdiction

over a non-resident, but it need only make a prima facie case if the district court

rules without an evidentiary hearing. Wilson v. Belin, 20 F.3d 644, 648 (5th Cir.

1994) (citations omitted). Proof by a preponderance of the evidence is not

required. Bullion v. Gillespie, 895 F.2d 213, 217 (5th Cir. 1990) (citing D.J.

Invs., Inc. v. Metzeler Motorcycle Tire Agent Gregg, Inc., 754 F.2d 542, 545-46

(5th Cir. 1985)). “‘Moreover, on a motion to dismiss for lack of jurisdiction,

uncontroverted allegations in the plaintiff’s complaint must be taken as true,

and conflicts between the facts contained in the parties’ affidavits must be

resolved in the plaintiff’s favor for purposes of determining whether a prima

facie case for personal jurisdiction exists.’” Id. (quoting D.J. Invs., Inc., 754 F.2d

at 546). We review the personal jurisdiction question here de novo. See Wilson,

20 F.3d at 647-48 (citation omitted).

A “federal court sitting in diversity may assertjurisdiction if (1)the state’s

long-arm statute applies, as interpreted by the state’s courts; and (2) if due

process is satisfied under the fourteenth amendment to the United States

Constitution.” Cycles, Ltd. v. W. J. Digby, Inc., 889 F.2d 612, 616 (5th Cir. 1989).

A district court must determine whether both the forum state’s long-arm statute

and federal due process permit the court to exercise personal jurisdiction.

Ruston Gas Turbines, Inc. v. Donaldson Co., 9 F.3d 415, 418 (5th Cir. 1993)

(citations omitted). Because the Texas long-arm statute extends to the limits of

federal due process, the two-step inquiry collapses into one federal due process

analysis. See Wilson, 20 F.3d at 647 (citations omitted). Federal due process
No. 07-41232

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requires a plaintiff to prove: (1) that the non-resident purposely availed himself

of the benefits and protections of the forum state by establishing “minimum

contacts” with the state; and (2) that the exercise of jurisdiction does not offend

“traditional notions of fair play and substantial justice.” Id. at 647 (quotations

and citations omitted).

“There are two types of ‘minimum contacts’: those that give rise to specific

personal jurisdiction and those that give rise to general personal jurisdiction.”

Lewis v. Fresne, 252 F.3d 352, 358 (5th Cir. 2001). In this case, Plaintiffs do not

contend that specific jurisdiction exists over Defendants. We, therefore, focus

solely on general jurisdiction, which exists when a non-resident defendant’s

contacts with the forum state are substantial, continuous, and systematic.

Helicopteros Nacionales De Colombia, S.A. v. Hall, 466 U.S. 408, 414-19 (1984);

Religious Tech. Ctr. v. Liebreich, 339 F.3d 369, 374 (5th Cir. 2003) (citations

omitted). The “continuous and systematic contacts test is a difficult one to meet,

requiring extensive contacts between a defendant and a forum.” Submersible

Sys., Inc. v. Perforadora Cent., S.A., 249 F.3d 413, 419 (5th Cir. 2001) (citation

omitted). “[E]ven repeated contacts with forum residents by a foreign defendant

may not constitute the requisite substantial, continuous and systematic contacts

required for a finding of general jurisdiction . . . .” Revell v. Lidov, 317 F.3d 467,

471 (5th Cir. 2002) (citations omitted). “Random, fortuitous, or attenuated

contacts are not sufficient to establish jurisdiction.” Moncrief Oil Int’l Inc. v.

OAO Gazprom, 481 F.3d 309, 312 (5th Cir. 2007) (citation omitted).

“General jurisdiction can be assessed by evaluating contacts of the

defendant with the forum over a reasonable number of years, up to the date the

suit was filed.” Access Telecom, Inc. v. MCI Telecomms. Corp., 197 F.3d 694, 717

(5th Cir. 1999) (citation omitted). The contacts must be reviewed in toto, and not

in isolation from one another. Holt Oil & Gas Corp. v. Harvey, 801 F.2d 773, 779

(5th Cir. 1986); see also Religious Tech. Ctr., 339 F.3d at 374 (citations omitted)
No. 07-41232

11

(“None of the activities individually constitutes a substantial or meaningful

contact with Texas, Texas law, or Texas residents, and certainly considered in

toto they fail to amount to continuous and systematic contact with Texas such

that general jurisdiction is created.”). But vague and overgeneralized assertions

that give no indication as to the extent, duration, or frequency of contacts are

insufficient to support general jurisdiction. See Gardemal v. Westin Hotel Co.,

186 F.3d 588, 596 (5th Cir. 1999).

Before we apply these principles to this case, it is worthwhile to review

past cases to illustrate just how difficult it is to establish general jurisdiction.

The seminal general jurisdiction case is Perkins v. Benguet Consolidated Mining

Co., 342 U.S. 437 (1952). There, the Supreme Court upheld the district court’s

exercise of general personal jurisdiction in Ohio over a Philippine corporation

whose president and general manger relocated to Ohio during the Japanese

occupation of the Philippine Islands. Id. at 447-49. While in Ohio, the president

maintained a corporate office where he kept the records of the corporation,

conducted director’s meetings, and made all key business decisions. Id. at 447-

48. The corporation also distributed salary checks drawn on two Ohio bank

accounts and engaged an Ohio bank to act as a transfer agent. Id. at 448. In

light ofthese activities, the Court held that Ohio could exercise jurisdiction over

the corporation because the president had “carried on in Ohio a continuous and

systematic supervision of the necessarily limited wartime activities of the

company.” Id.

By contrast, in Helicopteros,the Supreme Courtfound thatthe defendant’s

contacts with Texas were insufficient to support an exercise of general

jurisdiction. 466 U.S. at 418-19. The defendant’s contacts with Texas in that

case were in some sense extensive. For example, over a six year period the

defendant: purchased helicopters (approximately 80% of its fleet), spare parts,

and accessories for more than $4 million from a Texas company; sent its
No. 07-41232

12

prospective pilots to Texas for training; sent management and maintenance

personnel to Texas for technical consultations; and received a check for over $5

million that was drawn upon a Texas bank. Id. at 411. Nevertheless, the Court

held that none of the contacts was substantial enough standing alone or taken

together. See id. at 416-19. The mere purchase of goods from a state, even at

regular intervals and in amounts that were not insubstantial, was not enough

to warrant the assertion of jurisdiction over a non-resident in a cause of action

unrelated to those purchases. Id. at 417-18. Nor did the fact that the defendant

sent personnel into Texas for training in connection with the purchases in any

way enhance the nature of the contacts—this was merely one aspect of the

package of goods and services that the defendant had purchased. Id. at 418.

Finally, the receipt of a check drawn from a Texas bank was of no consequence

because the bank from which payment was made was caused by the fortuitous

“unilateral activity” of a third party. Id. at 416-17 (citations omitted).

This circuit has consistently imposed the high standard set by the

Supreme Court when ruling on general jurisdiction issues. See, e.g., Cent.

Freight Lines Inc. v. APA Transp. Corp., 322 F.3d 376, 381 (5th Cir. 2003)

(finding no general jurisdiction even though the defendant routinely arranged

and received interline shipments to and from Texas and regularly sent sales

people to Texas to develop business, negotiate contracts, and service national

accounts); Wilson, 20 F.3d at 651 (“Even if [the defendant’s] contacts with Texas

via his short-lived malpractice insurance arrangementthrough aTexas law firm

and his multi-year pro bono association with the historical society were arguably

continuous, we hold that they were not substantial enough to warrant the

imposition of general personal jurisdiction over [him].”); ASARCO, Inc. v.

Glenara, Ltd., 912 F.2d 784, 787 (5th Cir. 1990) (holding that sporadic contacts

withLouisiana were insufficientto cause the defendantto reasonably anticipate

the possibility of being haled into court in Louisiana); Bearry v. Beech Aircraft
No. 07-41232

13

Corp., 818 F.2d 370, 373-76 (5th Cir. 1987) (holding that the sale of over $250

million of products to seventeen Texas customers over a five year period did not

constitute systematic and continuous contacts with Texas because delivery was

accepted in Kansas).

Moreover, in Access Telecom, we emphasized that in order to confer

general jurisdiction a defendant must have a business presence in Texas. 197

F.3d at 717. It is not enough that a corporation do business with Texas. Id.

Thus, in that case, it was not sufficient to prove that the Mexican defendant

leased telephone circuits and real property in Texas. Nor was the fact that the

defendant derived millions of dollars a month in revenue from telephone calls

made by Texas residents. Id. Since the purpose of the defendant’s contacts with

Texas was to effectuate the Mexican leg of a telephone call, any money received

from United States companies was for “service on the Mexican leg of the

telephone call . . . .” Id. By contrast, United States carriers received the monies

derived from the United States leg of the call. Id. “As such, [the defendant] and

U.S. telecommunications companies do business with each other in these

situations, but neither is doing business in the other country for jurisdictional

purposes.” Id. (emphasis in the original).

In the instant case, it is quite clear that Multidata does not have sufficient

systematic and continuous contacts with Texas to establish general jurisdiction.

Plaintiffs put forward only three bases for jurisdiction. First, over a period of five

years, Multidata sold approximately $140,000 worth of goods and related service

contracts to ten different customers located in Texas. Those sales represented

approximately three percent of Multidata’s business during that time span, and

resulted in periodic trips by Multidata employees into Texas to service the

equipment. Second, Multidata advertised in national trade journals whose

circulation reached Texas. And, third, Multidata employees periodically attended

trade conventions in Texas. In response, Multidata stresses that it neither
No. 07-41232

14

maintains a place of business in Texas nor has a registered agent for service of

process in Texas. It argues that the contacts identified by Plaintiffs are too

limited and sporadic to give rise to general jurisdiction. We agree.

In Alpine View Co. v. Atlas Copco AB, we held that general jurisdiction did

not exist where the “evidence show[ed], at best, that [the defendant] sold, on

isolated occasions, products to entities located in Texas, . . . that companies used

[the defendant’s] products for projects in Texas, and that [the defendant’s]

personnel made field visits to Texas between December 1992 and December

1993.” 205 F.3d 208, 218 (5th Cir. 2000). Likewise, neither Multidata’s sale of

approximately $140,000 worth of goods in a five-year time period to Texas

customers nor its employees’ occasional travels to Texas to service equipment or

attend trade conventions are sufficient to justify exercising general jurisdiction.

See also Cent. Freight Lines, Inc., 322 F.3d at 381. Moreover, advertising in

national trade journals is not a substantial contact with Texas. Bearry, 818 F.2d

at 376 (citation omitted). In short, the nature and quality of Multidata’s contacts

are too insignificant and sporadic to “constitute a general presence in the state.”

See Dalton v. R&W Marine, Inc., 897 F.2d 1359, 1362 (5th Cir. 1990) (holding

that the defendant did not have a general presence in the forum state despite

earning over twelve percent of its revenue from sales in the state).

Similarly, MDS’s contacts with Texas are lacking the substance or

regularity necessary to establish general jurisdiction. Plaintiffs identify four

different contacts that MDS has with Texas: (1) it purchased over $5.2 million

worth of goods from Texas vendors during the five year period prior to the

lawsuit; (2) it is party to a Hosting Services Agreement and a Software Licensing

Agreement with a Texas corporation thatis governed by Texas law; (3) it employs

two Texas residents who perform work from their homes in Texas; and (4) a

former corporate director lived in Texas. In response, MDS notes that it: (1) has

not manufactured or sold any products in Texas; (2) owns no real property in
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15

Texas; (3) does not have a registered agent for service of process in Texas; and (4)

does not maintain any offices in Texas. Moreover, it argues that the contacts

identified by Plaintiffs are insufficient to establish a systematic and continuous

contact with Texas. Once again, we agree.

First, the Supreme Court has already determined that purchases of goods

from Texas vendors, standing alone, are not the type of contacts that will

establish general jurisdiction. See Helicopteros, 466 U.S. at 417 (“[P]urchases

and related trips, standing alone, are not a sufficient basis for a State’s assertion

of jurisdiction.”). We, therefore, can give only minimal weight to the fact that

MDS purchased $5.2 million worth of goods (a mere one percent of its component

parts) from Texas vendors. Similarly, the fact that MDS entered into a Hosting

Services Agreement with a Texas company adds little to the analysis. Although

it is true that the software license is subject to Texas law, any other disputes

arising under the agreement are governed by New York law. In reality, the

contract represents nothing more than another example of MDS purchasing

goods and services from a Texas vendor—a contact that is not sufficient to form

the basis for general jurisdiction. See id; see also Access Telecom, 197 F.3d at 717

n.6 (stating that a contact that involved paying for services that were provided

by Texas residents adds little to the analysis).

Nor are we convinced that MDS, which has not sold goods or services in

Texas, has a general business presence in the state based on the residence of two

employees and a former director. The two employees are Bill Lloyd, a product

test manager in the area of product development, and Robert Deutschman, a

software developer. Neither employee works with Texas customers. Both

employees work from home and reportto supervisors located in Toronto, Canada.

And both became employees through the happenstance of an acquisition, not

because they resided in Texas. They were permitted to remain in Texas because

they were able to perform their jobs anywhere in the world. While their presence
No. 07-41232

3 For this reason, MDS Nordion, which merged with MDS Pharma Services, Inc., to

form MDS Canada, also does not have sufficient contacts with Texas such as to create general

jurisdiction. See Engel v. Teleprompter Corp., 703 F.2d 127, 131 (5th Cir. 1983) (citations

omitted) (“A merger oftwo corporations contemplates that one corporation will be absorbed by

the other and will cease to exist while the absorbing corporation remains.”).

16

is certainly a regular contact with Texas, it is not substantial enough to create

a general business presence in Texas. See Access Telecom, 197 F.3d at 717

(holding that a presence in Texas is not sufficient unless the defendant is doing

business in Texas); Ratliff v. Cooper Labs., Inc., 444 F.2d 745, 746-48 (4th Cir.

1971) (finding no general jurisdiction despite the fact that the defendant had five

employees located in the forum state). Furthermore, the fact that a former

corporate director resided in Texas is not enough absent a more meaningful

business presence. Cf. Holt Oil & Gas Corp., 801 F.2d at 779 (citation omitted)

(stating that an individual’s status as a director of a Texas corporation would not

alone be sufficient to create general jurisdiction in Texas). Unlike in Perkins,the

business director here did not conduct board business in Texas. He merely

resided there. See also Religious Tech. Ctr., 339 F.3d at 374 (holding that a

Florida estate did not have systematic and continuous contacts with Texas

despite the fact that a representative of the estate conducted some estate

business from her home in Texas—including signing her retainer letter in Texas,

receiving and distributing property in Texas, and participating in decisions

concerning estate litigation in Texas). Taken in toto, MDS’s contacts with Texas

are not so substantial that it “should have reasonably expected to be sued in

Texas on any matter, however remote from [those] contacts.” Wilson, 20 F.3d at

650.

MDS Canada’s contacts with Texas, although more substantial than the

other defendants, also fail to create general jurisdiction.3 Plaintiffs identify two

major types of contacts. The first category is clinical trial work for

pharmaceutical companies (referred to as “sponsors” by MDS Canada), which
No. 07-41232

17

sometimes include contracts governed by Texas law. The clinical trial work at

issue generally involves both in-house testing services and the coordination and

design of trials carried out by independent physicians. MDS Canada’s contacts

with Texas that arise from this work are twofold: (1) work done on behalf of

Texas pharmaceutical companies; and (2) clinical trial work performed by

independent physicians located in Texas, which is coordinated by MDS Canada.

The record is unclear as to the total amount of money involved in these

transactions. However, MDS Canada receives less than one percent of its testing

revenue from Texas customers, and less than ten percent of its contracts with

independent testing facilities are with doctors located in Texas. 

The second category involves the sale of products and related services to

Texas customers. The products include large and expensive medical equipment,

such as Theratron units similar to the one at issue in this case, and Gammacell

and Raycell irradiators, which sterilize donated blood to prevent the spread of

disease through transfusions. MDS Canada has sold only a few of these items to

Texas customers in the five years preceding this case. It sold no Theratron units

(as opposed to one hundred twenty-six worldwide) and only ten Gammacell and

Raycell irradiators (as opposed to three hundred seventeen worldwide). On the

other hand, MDS Canada also manufactures smaller and higher-volume

products, including radioisotope devices that are used for medical imaging. It is

unclear exactly how many of these products were sold to Texas customers.

However, when added to the sale of the large radiation devices, and including

customer service trips, MDS Canada sold a total $5,736,931, $1,494,263,

$3,710,162, $6,164,747, and $8,751,805 worth of products to Texas customers in

the years of 2002, 2003, 2004, 2005, and 2006, respectively. For four out of five

years this accounted for 1.7%, 0.5%, 1.1%, and 2.5% of MDS Canada’s total global

sales.
No. 07-41232

18

We do not believe that these various activities amount to substantial,

systematic, and continuous contacts. MDS Canada is not registered to do

business in Texas; does not own, possess or use property in Texas; does not

maintain a mailing address or bank account in Texas; and does not keep,

maintain or store any documents within Texas. While it is true that MDS

Canada sells products and services to Texas customers, neither the total amount

of sales nor the percentage of annual sales is substantial or regular enough to

create a general presence in Texas. See Access Telecom, 197 F.3d at 717-18

(finding no general jurisdiction where the defendant derived millions of dollars

a month in revenue from Texas residents); Siemer v. Learjet Acquisition Corp.,

966 F.2d 179, 181-84 (5th Cir. 1992) (holding that general jurisdiction did not

exist over a Delaware corporation where the corporation sold slightly over one

percent of its products to Texas buyers); Dalton, 897 F.2d at 1362 (holding that

the defendant did not have a general presence in the forum state despite earning

over twelve percent of its revenue from sales in the state). Moreover, it is of little

consequence that independent clinical testing is performed by some doctors in

Texas—receiving services from Texas vendors in this sense is not a significant

contact. See Access Telecom, 197 F.3d at 717 n.6.

Nor do we find other less substantial contacts offered by Plaintiffs to affect

our analysis. Plaintiffs note that MDS Canada sends its employees to Texas to

service equipment. For example, in 2006, MDS Canada employees installed three

machines, made nine services calls, and took approximately five trips into Texas

for preventative maintenance. But as we noted above, mere travel, even at

regular intervals into a state, does not create general jurisdiction. See

Helicopteros, 466 U.S. at 418. Plaintiffs also claim that MDS Canada has an

employee who permanently resides in Texas. MDS Canada disputes this point,

and argues that he is merely an employee of an affiliate. Regardless, the

evidence shows that in the past three years he has performed only thirty-seven
No. 07-41232

19

days of technical work (installing and servicing irradiators) in Texas. This

amounts to little more than a random contact, and is hardly systematic and

continuous. See Religious Tech. Ctr., 339 F.3d at 374. Finally, Plaintiffs rely on

the fact that MDS Canada maintains a Texas Radioactive Material License,

which permits it to install and remove radioactive material from irradiators

located at customer sites in Texas. Never before have we held that licenses to do

work can create general jurisdiction. Cf. Cent. Freight Lines, Inc., 322 F.3d at

381 (holding that general jurisdiction did not exist even though the defendant

had federal operating authority in Texas); Siemer, 966 F.2d at 182 (stating that

being qualified to do business in the forum state is not entitled to any special

weight in evaluating general jurisdiction).

We further believe that even if MDS Canada had continuous and

systematic contacts with Texas (which, in our view, it does not), traditional

notions of fair play and substantial justice would be violated if we exercised

jurisdiction over it in this case. If the required minimum contacts are shown,

jurisdiction exists unless the defendant can make a “compelling case” that

traditional notions of fair play and substantial justice would be violated by the

exercise of jurisdiction. Wein Air Alaska, Inc. v. Brandt, 195 F.3d 208, 215 (5th

Cir. 1999) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985)). To

evaluate the reasonableness of exercising jurisdiction, we normally consider: (1)

the burden on the defendant; (2) the interest of the forum state in adjudicating

the dispute; (3)the plaintiff’s interestin obtaining convenient and effective relief;

and (4)the shared interest of the several states. Bearry, 818 F.2d at 377 (citation

omitted). “It is rare to say the assertion [of jurisdiction] is unfair after minimum

contacts have been shown.” See Wien Air Alaska, 195 F.3d at 215 (citation

omitted). “The relationship between the defendant and the forum must be such

that it is reasonable to require the defendant to defend the particular suit which
No. 07-41232

20

is brought there.” Guidry v. U.S. Tobacco Co., 188 F.3d 619, 630 (5th Cir. 1999)

(citation omitted).

However, when foreign defendants are involved we must “consider the

procedural and substantive policies of other nations whose interests are affected

by the assertion of jurisdiction by the [forum state].” Asahi Metal Indus. Co. v.

Superior Court of Ca., 480 U.S. 102, 115 (1987) (emphasis in the original). The

interests of foreign nations,

as well as the Federal interest in Government’s foreign

relations policies, [are] best served by a careful inquiry

into the reasonableness ofthe assertion of jurisdiction in

the particular case, and an unwillingness to find the

serious burdens on an alien defendant outweighed by

minimal interests on the part of the plaintiff or the

forum State. “Great care and reserve should be

exercised when extending our notions of personal

jurisdiction into the international field.”

Id. (citing United States v. First Nat’l City Bank, 379 U.S. 378, 404 (1965)

(Harlan, J., dissenting)).

In Asahi, the Supreme Court held that jurisdiction would be unreasonable

due to the burden on the foreign defendant. Id. at 116. That case originally

involved a product liability action brought in California state court against a

Taiwanese manufacturer of motorcycle tires. Id. at 105-06. However, the

underlying lawsuit was eventually settled, leaving only the Taiwanese

manufacturer’s cross-complaint seeking indemnification from the Japanese

corporation that manufactured a component of the tire’s tube. Id. at 106. All of

the transactions between the two corporations occurred abroad, and the Japanese

defendant had no connection to California other than the fact that its products

were incorporated into tires later sold in California by third parties. Id. at 106-

08. The Court famously split over whether California could exercise jurisdiction

over the Japanese corporation under a stream of commerce theory, absent any
No. 07-41232

21

additional evidence that it had purposefully directed its product towards

California. Id. at 112-13, 116-22. Yet a unanimous Court agreed that,

regardless, it would be unfair to exercise jurisdiction over the Japanese

corporation in light of the international context of the case, the heavy burden on

the alien defendant, and the slight interests of the plaintiff and the forum state.

Id. at 116.

The Court stressed thatthe burden placed on the Japanese corporation was

severe because it was commanded to traverse the distance between its foreign

headquarters and to submit itself to a foreign nation’s judicial system. Id. at 114

(“The unique burdens placed upon one who must defend oneself in a foreign legal

system should have significant weight in assessing the reasonableness of

stretching the long arm of personal jurisdiction over national borders.”). In

contrast, the interest of the plaintiff and California were comparatively

slight—the only claim that remained was an indemnification claim based on a

transaction that took place abroad and that involved the shipment of goods from

Japan to Taiwan. Id. Moreover, “[b]ecause the plaintiff [was] not a California

resident, California’s interest in the dispute [was] considerably diminished.” Id.

The California Supreme Court had found that California “had an interest in

‘protecting its consumers by ensuring that foreign manufacturers comply with the

state’s safety standards.’” Id. at 114 (citation omitted). But the Court held that

this interest was overstated because it was “not at all clear . . . that California

law should govern the question whether a Japanese corporation should indemnify

a Taiwanese corporation on the basis of a sale made in Taiwan and a shipment

of goods from Japan to Taiwan.” Id. at 115 (citations omitted). In either event,

the safety interest was protected so “long as those who use [the defendant’s]

components in their final products, and sell those products in California, are

subject to the application of California tort law.” Id.
No. 07-41232

22

Other circuit courts have since found that exercising jurisdiction over

foreign defendants would be unreasonable under similar circumstances. For

example, in Ellicott Machine Corp. v. John Holland PartyLtd., 995F.2d 474, 475-

76 (4th Cir. 1993), a Maryland corporation sought to bring a declaratory

judgment action against an Australian construction and engineering company in

a Maryland federal district court. The Fourth Circuit held that exercising

jurisdiction over the Australian company would be inconsistent with traditional

notions of fair play and substantial justice because litigating in Maryland would

impose a heavy burden on the alien defendant. Id. at 480. Nearly all aspects of

the underlying dispute in that case took place in Australia, witnesses to the

dispute were located primarily in Australia, and the defendant would be forced

to cross the globe to defend itself in a lengthy trial. Id. Moreover, the

overwhelming Australian focus ofthe underlying contractimplicated Australia’s

fundamental social policies. Id. While Maryland had an interest in adjudicating

the action because the plaintiff was a Maryland resident, its interest was

diminished because the disputed contract involved products intended for foreign

consumption. Id. at 479.

Similarly, in Benton v. Cameco Corp., 375 F.3d 1070, 1079-80 (10th Cir.

2004), the Tenth Circuit held that due process was offended by the exercise of

specific jurisdiction over a Canadian defendantin Colorado court even though the

plaintiff was a Colorado resident and the defendant had sufficient minimum

contacts with the forum. Because the defendant was a foreign corporation and

Canadian law governed, the burden on the defendant was significant. Id. at

1079. Although Colorado and the plaintiff had an interest in the litigation being

adjudicated in Colorado because the plaintiff was a Colorado resident,this factor

did not weigh heavily in either parties’ favor because Colorado law would not

govern the parties’ dispute. Id. Moreover, the judicial system’s interest in

efficient resolution of cases favored dismissal because many of the witnesses were
No. 07-41232

23

located in Canada, the allegedly injurious act occurred in Canada, and Canadian

law governed the dispute. Id. at 1080.

Finally, in an analogous situation involving a domestic Delaware

corporation, this court found it unreasonable for Texas to exercise jurisdiction

even if the defendant’s contacts with Texas were systematic and continuous.

Bearry, 818 F.2d at 377. In Bearry, the court recognized that the burden placed

on the domestic defendant was “real, certainly relatively so . . . .” Id.

Furthermore, the “suit implicate[d] virtually no distinct interest of Texas.” Id.

The case arose from a plane crash that occurred in Mississippi and was brought

by Louisiana residents on behalf of deceased Louisiana residents. Id. Any broadbased concerns that the defendant’s products might lead to future injuries in

Texas could be adequately protected by the exercise of specific jurisdiction if and

when an injury occurred in Texas. Id. Nor did the plaintiffs have a distinct

interestin the lawsuit proceeding inTexas because they were notTexas residents

and they did not point to any witness or other evidence located in Texas. Id.

Finally, the interests of the several states would not be served by adjudicating

the case in Texas because both Kansas (the home of the defendant) and

Mississippi (the locus of the injury) had stronger interests in the case. Id.

In the instant case, we find that exercising jurisdiction over MDS Canada

would offend traditional notions of fair play and substantial justice. First, like

the defendant in Asahi, a severe burden would be placed on MDS Canada if it is

forced to defend itself in Texas. In addition to the regular burdens of defending

oneself in a foreign legal system, MDS Canada would not have compulsory access

to many of the witnesses and evidence necessary to defend itself. Cf.

Electrosource, Inc. v. Horizon Battery Techs., Ltd., 176 F.3d 867, 874 (5th Cir.

1999) (holding that Texas was the most efficient forum because the vast majority

of witnesses and other evidence were located in Texas). Second, “the procedural

and substantive policies” of two other nations—Canada and Panama—would be
No. 07-41232

24

affected by the assertion of jurisdiction over MDS Canada. See Asahi, 480 U.S.

at 115. Third, the judicial system’s interest in an efficient resolution of the case

favors litigating the case in Panama because MDS Canada has a potential third

party claim for indemnification against the ION doctors and physicists. Cf.

Guidry, 188 F.3d at 631 (“[T]he interstate judicial system’s interests for the

efficient resolution of controversies preponderates in favor of a single litigation

inclusive of all defendants whose allegedly intentional and tortious acts have

coalesced to injure the plaintiffs.”); Ruston Gas Turbines, Inc., 9 F.3d at 421

(holding that it would be fair to exercise jurisdiction over the third-party

defendant in Texas because the Texas forum would bring all the parties into one

courtroom for a single resolution of the case).

None of these factors is outweighed by an interest of Texas or Plaintiffs.

First, the only manner in which Texas could be conceivably viewed as a more

convenient forum than Panama is if we focus on the six Plaintiffs who reside in

the United States. But more than two hundred remaining plaintiffs reside in

Panama. Taken as a whole, Plaintiffs cannot establish that it would be more

convenient for them to litigate this case in Texas.

Second, Texas has, at most, a minimal interest in adjudicating the dispute.

None of the injured Plaintiffs was a Texas resident, MDS Canada’s allegedly

tortious acts did not take place in Texas, Plaintiffs’ injuries did not occur in

Texas, and Texas law does not govern the dispute. See Reich v. Signal Oil & Gas

Co., 409 F. Supp. 846, 851 (S.D. Tex. 1974) (recognizing that Texas has no special

interest in granting relief to its citizens against a foreign corporation on a cause

of action that arose under the laws of a foreign government for conduct outside

the United States), cited with approval in Jones v. Petty-Ray Geophysical,

Geosource, Inc., 954 F.2d 1061, 1070 (5th Cir. 1992). Plaintiffs argue that Texas

has an interest in this dispute because: (1) the doctors from M.D. Anderson who

investigated the events underlying this dispute reside in Texas; and (2) MDS
No. 07-41232

25

Canada sells radiation devices similar to the one used at ION to Texas customers.

We do not agree that M.D. Anderson’s after-the-fact investigation vests Texas

with any real interest in this case. And while MDS Canada sells products in

Texas, that interest is not substantial enough to overcome the burden placed on

MDS Canada. See Bearry, 818 F.2d at 377 (holding that Texas’ interest in the

safety of products sold in Texas could be vindicated without exercising

jurisdiction over the defendant).

In sum, we do not believe that MDS Canada has sufficient substantial,

continuous, and systematic contacts with Texas to justify the exertion of general

jurisdiction. MDS Canada does not maintain any office or other permanent

presence in Texas. And the volume of MDS Canada’s business in Texas is not so

substantial that it should have reasonably expected to be haled into Texas court

on any matter whatsoever. But even if MDS Canada’s contacts were sufficient,

it would offend traditional notions of fair play and substantial justice to exercise

jurisdiction over MDS Canada in this case. In light of the international context

of the case, the slight interests of both Plaintiffs and Texas, it is unreasonable to

impose the heavy burden of defending this case in Texas on MDS Canada. See

Asahi, 480 U.S. at 116.

III.

For the reasons stated above, we REVERSE the district court’s April 30,

2007, order and REMAND with instructions to dismiss the case without

prejudice. Plaintiffs shall bear the costs of this appeal.