1 District Judge of the Western District of Louisiana, sitting by designation.

2 Also referred to as Aladin Bahri and Alleaddeen Hassan-al Bahri.

3 See Opinions of October 6, 1981 and May 12, 1983; see also Orders of Judgment of October

7, 1981 and May 19, 1983. A fifth action, filed by the survivor of Teresa Drake, another

passenger on board Learjet N–711AF, was also dismissed by the May 1983 order. United States Court of Appeals,

Fifth Circuit.

No. 91–4745.

WENCHE SIEMER, etc., et al., Plaintiffs–Appellants,

v.

The LEARJET ACQUISITION CORP., et al., Defendants–Appellees.

Mayade Bahri HELWANI, etc., et al., Plaintiffs–Appellants,

v.

The LEARJET ACQUISITION CORP., et al., Defendants–Appellees.

July 17, 1992.

Appeals from the United States District Court for the Eastern District of Texas.

Before HIGGINBOTHAM and DUHÉ, Circuit Judges, and HUNTER 1 , District Judge.

EDWIN F. HUNTER, Jr., District Judge:

Plaint iffs are the survivors of the co-pilot (Michael M. Grandclement) and of two of the

passengers (Peter I. Simer and Aladdine H. Bahri 2 ) on board Learjet N–711AF, which crashed on

A ugust 11, 1979 while en route from Athens, Greece to Jeddah, Saudi Arabia. The aircraft

disappeared while traversing Egyptian airspace. The wreckage of the aircraft was discovered nearly

eight (8) years later in the Egyptian desert.

In sum, plaint iffs' decedents disappeared from the face of the earth on August 11, 1979, when

the plane they were flying disappeared over Egypt. Less than two years later, all of plaintiffs filed

wrongful death actions in New York asserting tha t their decedents were dead. All of these cases

were ultimately

dismissed on f

orum non conveniens grounds. 3 Learjet was a defendant in one ofplaintiffs' suits. Plaintiffs did not appeal.

Ten years later and eight years after being dismissed in New York, plaint iffs filed this second

set of wrongful death actions in the United States District Court for the Eastern District of Texas.

The district court granted Learjet's Moti on to Dismiss on all grounds asserted: lack of i n personam

jurisdiction; improper venue; f orum non conveniens; collateral estoppel; and l imitations. Because

we hold that the district court correctly ruled that it had no jurisdiction over the corporati on in the

cause of action asserted, we do not reach defendant's other lines of defense.

THE CONSTITUTIONAL REQUIREMENTS OF "DUE PROCESS"

Plaint iffs are all residents of Greece or other European countries. Decedents were all

residents of Greece. The aircraft was permanently based, maintained and serviced in Greece. It was

operated by a Greek company. It was not designed or manufactured in Texas. It was never owned

by a Texas resident. It had never been repaired or serviced in Texas. Learjet is a Delaware

corporati on with its principal place of business in Kansas, where it designed, manufactured and sold

its products. Plaintiffs urge us to hold, quite simply, that in state service on a designated corporate

agent without more, satisfies the requirements of due process. This Court has never so held and we

decline to do so now.

The extent of Learjet's contacts with Texas from the date it began operations to February 26,

1989, the date plaint iffs filed this suit, are revealed in the record. They had not had an employee, an

officer or director, an interest in real property

, a deposit in any financial institution, or a facility or

office located within the state. All sales were made from products warehoused in Kansas or Arizona.

Only slightly over one percent (1%) of Learjet's sales, consisting of spare parts went to buyers with

Texas addresses. Learjet does hold a certificate from Texas giving it the right to do business in

Texas. It does have an agent for process in Dallas, Texas. A wholly-owned, but separately operated,

subsidiary transacts business in San Antonio, pursuant to a governme nt contract. Advertisementshave been placed in nati o nal journals that are distributed in Texas (as well as all other states), and

Learjet has, on occasion, mailed information to prospective customers who happen to be located in

Texas.

The fact that service is proper does not resolve the question as to "whether [the] plaint iff has

demonstrated a sufficient basis for t h[e] co urt's exercise of personal jurisdiction." A pplew hite v.

Metro Aviation, Inc., 875 F.2d 491, 494 (5th Cir.1989).

Whether jurisdiction in the sense of due process exists depends upon concepts of "fairness"

and "convenience" and not upon mere compliance with procedural requirements of notice, nor even

corporate "presence" within the state. I nternational Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct.

154, 90 L.Ed. 95 (1945).

Because plaint iffs' causes of action, as alleged, in no way arose out of Learjet's contacts with

Texas, plaint iffs had to show, in order to sustain jurisdiction, that Texas acquired general jurisdiction

over Learjet. The leading Supreme Court case on general jurisdiction is H elicopteros Nacionales de

Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). There, the Texas

Supreme Court determined that a foreign corporati on could be sued in Texas in a suit arising out of

a helicopter crash in Peru. The United States Supreme Court reversed. The reversal was premised

upon a finding that the corporation's contacts were insufficient to establish general jurisdiction. The

facts closely resemble those here. Neither plaintiffs nor decedents were or had been domiciled in

Texas. The harm suffered did not occur in Texas. The alleged misconduct did no t t ake place in

Texas. The corporation had substantial contacts with Texas, id. at 410–11, 104 S.Ct. at 1869–71,

but the Supreme Court of the United States held those contacts were insufficient to sat isfy t he

requirements of the due process clause of the Fourteenth Amendment. Id. at 418–19, 104 S.Ct. at

1874–75.4 "As the defendant's sole contact with the State of Louisiana is an appointed agent for service

of process, the defendant's contact does not satisfy the minimum contacts requirement of

International Shoe and therefore maintenance of this suit in this jurisdiction would offend the

traditional notions of fair play and substantial justice." Jones, 1989 WESTLAW at 57130. The facts in Bearry v. Beech Aircraft Corp., 818 F.2d 370 (5th Cir.1987), provide a clear

precedent for the resolution of this jurisdictiona l dispute. There, this Court found that general

jurisdiction did not exist in Texas over another Kansas aircraft manufacturer, Beech Aircraft. The

only significant factual differences between Bearry and this case are: (1) instead of being centered

around sister states, Louisiana and Mississippi, the present case cent ers around foreign nations,

Greece a nd Egypt ; (2) Learjet has substantially l ess commerce invo lving Texas than the Bearry

defendants had invo lving their respective forums; and (3) Learjet had appointed an agent for service

of process in Texas. The first two items clearly reflect a much more tenuous jurisdictional connection

to Texas by Learjet. While the last item, being qualified to do business, may on its face appear to be

significant, it "is of no special weight" in evaluating general personal jurisdiction. R atliff v. Cooper

Laboratories, Inc., 444 F.2d 745, 748 (4th Ci r.), c ert. denied, 404 U.S. 948, 92 S.Ct. 271, 30

L.Ed.2d 265 (1971); a ccord Jones v. Family Inns, Inc. 4

, 1989 WESTLAW 57130, Civ.A. No.

89–0190 (E.D.La. May 23, 1989); I n re Mid–Atlantic Toyota Antitrust Litig., 525 F.Supp. 1265,

1278 (D.Md.1981). Plaintiffs' cit e no case and this Court has found none that supports the

proposition that the appointment of an agent for process and the registration to do business within

the state, without more, suffices to satisfy the criteria for the exercise of general jurisdiction.

The facts in Ratliff a re remarkably similar to those here and its holding—that no general

jurisdiction existed—if followed would be dispositive. The defendant had no office, bank account,

or warehouse i n South Carol i na. R atliff, 444 F.2d at 748. It owned no real or personal property

there. It did not advertise there except through national journals. Just as Learjet had done in Texas,

however, the defendant drug company had qualified to do business in South Carolina and had

appointed an agent for service of process in the state. Moreover, the R atliff defendant had

maintained five "detail men" who lived in and prom oted its products through personal contacts withdoctors and drugstores throughout the forum state. Nonetheless, even the physical presence of this

sales operati on in South Carolina failed to tip the scale and subject t he defendant to personal

jurisdiction.

"We think the application to do business and the appointment of an agent for service to fulfill

a st ate law requirement is of no special weight in the present context. Applying fo r t he

privilege of doing business is one thing, but the actual exercise of that privilege is quit e

another."

Id. at 748.

Plaint iffs tout Burnham v. Superior Ct., 495 U.S. 604, 110 S.Ct. 2105, 109 L.Ed.2d 631

(1990), as being dispositive of the jurisdictional issue. This is puzzling. B urnham did not involve a

corporation and did not decide any jurisdictional issue pertaining to corporations.

Burnham, a New Jersey resident, during a visit to California to visit his children was served

with a court summons and h is est ranged wife's divorce petition. She was a resident of California.

The courts of that state rejected Burnham's contention that the Due Process Clause of the Fourteenth

Amendment prohibited courts of that state from asserting personal jurisdiction over him. The

Supreme Court unanimously affirmed and agreed that the rule allowing jurisdiction to be obtained

over a non-resident by personal service in the forum state could not be held violative of due process

under the circumstances of that case.

Justice SCALIA (with three Justices concurring) reasoned that jurisdiction based on physical

presence, alone, constitutes due process b ecause it is a continuing tradition of our legal system.

Justice BRENNAN (with three Judges co ncurring), applied a more flexible approach. He had in

essence this to say: Historical pedigree, although important, is not the only factor to be taken into

account in establishing whether a jurisdictional rule satisfies due process, and that an independent

inquiry into the fairness of the prevailing in-State service rule must be undertaken.5 "For me, it is sufficient to note that the historical evidence and consensus identified by Justice

SCALIA, the considerations of fairness identified by Justice BRENNAN, and the common sense

displayed by Justice WHITE, all combine to demonstrate that this is, indeed a very easy case."

Then he noted: "Perhaps the adage about hard cases making bad law should be revised to cover

easy cases." Burnham, 110 S.Ct. at 2126. Justice WHITE wrote separately to the effect that there had been no showing here that the

rule allowing service was so lacking in common sense that it should be held violative of Due Process.

Justice STEVENS, in a special concurrence, make some interesting observations. 5

Contrary to plaint iffs' assertion, nothing in either plurality opinion suggests that service on a

corporation's registered agent "automatically subjects the corporati on to jurisdiction." B urnham, to

the extent it pro vides any guidance, reinforces Learjet's position. Justice SCALIA noted "the

continuous and systematic contact rule applied o n ly to corporations, which have never fitted

comfortably

in a jurisdictional regime based primarily upon de facto power over the defendant's

person." Id., 110 S.Ct. at 2110 n. 1. The second plurality's opinion reaffirms that all assertions of

personal jurisdiction must satisfy the contacts and fairness requirements enunciated in International

Shoe. Id. at 2120–22.

To assert, as plaint iffs do, that mere service on a corporate agent automaticall y confers

general jurisdiction displays a fundamental misconception of corporate jurisdictional principles. This

concept is directly contrary to the historical rationale of International Shoe and subsequent Supreme

Cour t decisi ons. S ee International Shoe, 326 U.S. at 316–19, 66 S.Ct. at 158–60; P erkins v.

Benguet Consolidated M ining Co., 342 U.S. 437, 444–48, 72 S.Ct. 413, 417–19, 96 L.Ed. 485

(1952); s ee also Ratliff, 444 F.2d at 748. In P erkins, the Supreme Court upheld general jurisdiction

over a Philippine corporati on that had b een served in Ohio by serving its president while he was

conducting the corporation's business in the state, but only after a thorough "minimum contacts" and

fairness analysis. P erkins, 342 U.S. at 445–48, 72 S.Ct. at 418–20. The Court refused to fi nd

jurisdiction based solely upon service on the president, and went on to state that the fact t hat a

corporation's activities caused it to have a registered agent in the forum state was "helpful but not aconclusive test" in the jurisdictional equation. I d. at 445, 72 S.Ct. at 418. Indeed, the R atliff court

held that a corporation's qualification to do business in the forum state and service on its registered

agent in the state "is of no special weight in evaluating general personal jurisdiction." R atliff, 444

F.2d at 748. The R atliff defendant, who had not only qualified to do business and appointed an agent

for service of process, but maintained five salesmen in t he forum, clearly presents a much greater

presence than any Learjet might have had in Texas. A registered agent, from any conceivable

perspective, hardly amounts to "the general business presence" of a corporation so as to sustain an

assertion of general jurisdiction. B earry, 818 F.2d at 375; c f. Smith v. Lloyd's of London, 568 F.2d

1115, 1118 & n. 7 (5th Cir.1978) (interpreting a Georgia registration statute for insurance companies

as requiring more than the mere presence of agents in Georgia to subject a corporation to personal

jurisdiction and questioning the constitutionality of a broader interpretation).

Not only does the mere act of registering an agent not create Learjet's gene ral business

presence in Texas, it also does not act as consent to be hauled into Texas courts on any dispute with

any party anywhere concerning any mat t er. The Texas Business Corporation Act provides that

service on a registered foreign corporati on may be affected by servi ng it s president, any vice

president, or the registered agent of the corporation. (Tex. Bus.Corp. Act Ann. art. 8.10(A)). No

Texas state court decision has h eld t hat this provision acts as a consent to jurisdiction over a

corporati on in a case such as ours—that is where plaint iffs are non-residents and the defendant is not

conducting substantial activity within the state. Learjet does not contest the "potential" jurisdiction

of Texas courts. They do assert and we agree that the appointment of an agent for process has not

been a waiver of its right to due process protection.

The Eighth Circuit, construing an Arkansas registration statute even less explicit a s to i ts

limit ed scope, found that the statute could be read, "at its broadest, to cover only causes of action

arising out of

... transactions in Arkansas." P earrow v. National Life & Accident Ins. Co., 703 F.2d

1067, 1069 (8th Cir.1983) (citation s o mitted). In the First Circuit, it was noted that any other6 The circumstances are reminiscent of Dalton v. R. & W. Marine, Inc., 897 F.2d 1359 (5th

Cir.1990). There this court concluded:

"..., aside from its role as the forum state, Louisiana has no interest in this

litigation. It appears that the attorneys are the only participants with any ties to the

forum." Id. at 1363. construction of the Maine registration statute would be unreasonable. S andstrom v. Chemlaw n

Corp., 727 F.Supp. 676, 681 (D.Me.1989), aff'd, 904 F.2d 83 (1st Cir.1990).

In short, a foreign corporati on that properly complies with the Texas registration statute only

consents to personal jurisdiction where such jurisdiction is constitutionally permissible. Due process,

as this Court often has said, is a flexible concept that varies with the particular situation. Our due

process jurisprudence has evolved substantially since the seminal case o f International Shoe, but

under any analysis, it would be violative of due process to require Learjet to defend this suit in Texas.

The district court was eminently correct in so holding. 6

We affirm the district court's dismissal of this case.

AFFIRMED.