United States Court of Appeals 

for the Fifth Circuit 

No. 19-51099 

Sayers Construction, L.L.C., 

Plaintiff—Appellant, 

versus

Timberline Construction, Incorporated; High Voltage, 

Incorporated, 

Defendants—Appellees. 

Appeals from the United States District Court 

for the Western District of Texas 

USDC No. 6:19-CV-325 

USDC No. 6:19-CV-487 

Before Smith, Clement, and Oldham, Circuit Judges.

Andrew S. Oldham, Circuit Judge:

The question presented is whether a federal district court in Texas 

had jurisdiction to vacate an arbitration award in Florida. The district court 

said no. We agree and affirm. 

I. 

 In 2015, Florida Power & Light Company hired Sayers Construction, 

L.L.C. to work on electrical utility lines in the State. Sayers then hired 

Timberline Construction, Inc., a South Dakota corporation, and High 

United States Court of Appeals 

Fifth Circuit 

FILED 

October 2, 2020 

Lyle W. Cayce 

Clerk 

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2 

Voltage, Inc., a Utah corporation, as subcontractors on the project. The 

parties formalized their relationship in a Master Services Agreement. 

Although High Voltage did not execute the Agreement, no one disputes that 

High Voltage is equally bound by its terms.

 Pursuant to the Agreement, Timberline and High Voltage picked up 

work orders from Sayers at its Florida offices and then performed fieldwork 

in Florida. After completing work, Timberline and High Voltage sent 

invoices to Sayers in Texas. Sayers then paid the subcontractors within 45 

days of receiving an invoice. 

 Sayers eventually stopped paying its invoices, so Timberline and High 

Voltage stopped performing work. The subcontractors then filed an 

arbitration demand with the American Arbitration Association (“AAA”). 

An arbitrator in Florida eventually found in favor of Timberline and High 

Voltage, awarding them damages and fees. 

 Sayers filed suit in the Western District of Texas seeking to vacate the 

arbitration award under state law.1 Timberline and High Voltage filed a 

motion to dismiss under Federal Rule of Civil Procedure 12(b)(2), (b)(3), and 

(b)(5), as well as under the Colorado River abstention doctrine. The court 

dismissed the suit for lack of personal jurisdiction over the subcontractors. 

1

 In its pleadings, Sayers invoked the Western District’s diversity jurisdiction 

under 28 U.S.C. § 1332. As an LLC invoking federal diversity jurisdiction, Sayers bore 

responsibility for alleging the citizenship of each of its members to establish complete 

diversity. See MidCap Media Fin., L.L.C. v. Pathway Data, Inc., 929 F.3d 310 (5th Cir. 

2019). Our review of the record indicates that Sayers failed to meet that obligation. 

Ordinarily that would require us to dismiss the action. See id. at 314. Because we resolve 

this case on other jurisdictional grounds, however, we need not reach the adequacy of 

Sayers’s pleadings on this point. Cf. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 578 

(1999) (“[T]here is no unyielding jurisdictional hierarchy. . . . [T]here are circumstances 

in which a district court appropriately accords priority to a personal jurisdiction inquiry.”). 

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Sayers timely appealed. Our review is de novo. Halliburton Energy Servs., Inc. 

v. Ironshore Specialty Ins. Co., 921 F.3d 522, 539 (5th Cir. 2019). 

II. 

Jurisdiction is power. And the Due Process Clause limits the 

jurisdiction of state courts to exercise power over out-of-State defendants. 

See Pennoyer v. Neff, 95 U.S. 714, 733 (1877). 

Of course, this case turns on whether a federal (not state) court in 

Texas can exercise power over out-of-State defendants. But the distinction 

does not matter because, in general, federal courts can exert power only over 

out-of-State defendants that are “subject to the jurisdiction of a court of 

general jurisdiction in the state where the district court is located.” Fed. R. 

Civ. P. 4(k)(1)(A). Here, Texas gives its courts of general jurisdiction all of 

the power allowed by the Due Process Clause. See Tex. Civ. Prac. & 

Rem. Code § 17.042. “Thus, in order to determine whether the Federal 

District Court in this case was authorized to exercise jurisdiction over [the 

subcontractors], we ask whether the exercise of jurisdiction comports with 

the limits imposed by federal due process on the State of” Texas. Walden v. 

Fiore, 571 U.S. 277, 283 (2014) (quotation omitted). 

The Due Process Clause imposes several limitations that are relevant 

to personal jurisdiction. But only one is relevant here—namely, whether the 

subcontractors had “minimum contacts” in Texas such that a Texas court 

could exercise specific personal jurisdiction over them. Int’l Shoe Co. v. 

Washington, 326 U.S. 310, 316 (1945). To determine whether the 

subcontractors had such “minimum contacts,” we ask whether they 

“purposefully avail[ed] [themselves] of the privilege of conducting activities 

within the forum State, thus invoking the benefits and protections of its 

laws.” Hanson v. Denckla, 357 U.S. 235, 253 (1958); accord World-Wide 

Volkswagen Corp. v. Woodson, 444 U.S. 286, 297–98 (1980). 

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The “purposeful availment” requirement protects defendants from 

being summoned to a forum where they have only “random, fortuitous, or 

attenuated contacts.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 

(1985). To that end, our inquiry focuses on “actions by the defendant . . . that 

create a substantial connection with the forum State.” Ibid. (quotation 

omitted). In breach-of-contract disputes, the analysis turns on a “highly 

realistic” assessment of the parties’ “prior negotiations and contemplated 

future consequences, along with the terms of the contract and the parties’ 

actual course of dealing.” Id. at 479. A touchstone of this analysis is the 

“place of contractual performance.” Jones v. Petty-Ray Geophysical 

Geosource, Inc., 954 F.2d 1061, 1068 (5th Cir. 1992); see also Holt Oil & Gas 

Corp. v. Harvey, 801 F.2d 773, 778 (5th Cir. 1986) (finding no “minimum 

contacts” with Texas in part because performance of the contract was 

centered in Oklahoma). 

Here, the place of contractual performance was Florida—not Texas. 

But Sayers says four other facts are nonetheless sufficient to establish a prima 

facie case of specific personal jurisdiction over the subcontractors in Texas: 

(1) Timberline solicited a business relationship with Sayers in Texas; 

(2) Timberline and High Voltage contracted with Sayers, which has an office 

in Texas; (3) Timberline and High Voltage mailed invoices to Sayers’s office 

in Texas; and (4) the parties’ contract has a Texas choice-of-law clause. 

Fact (1) does not constitute purposeful availment. Sayers’s 

solicitation allegations are unclear. But the gist appears to be that two 

individuals—Dan Reid and Tom Duffy—solicited Sayers for employment in 

Texas. Sayers said no. Then Reid and Duffy went to work for Timberline. 

And when Timberline solicited Sayers for the Florida project, Sayers said 

yes. Reid and Duffy are irrelevant because the “unilateral activity of a third 

party” cannot establish minimum contacts on behalf of a corporate 

defendant. See Walden, 571 U.S. at 291 (quotation omitted). And any 

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solicitation by Timberline is equally irrelevant because it establishes, at most, 

a relationship between Timberline and Sayers—not Timberline and Texas. 

See id. at 285–86; Fastpath, Inc. v. Arbela Techs. Corp., 760 F.3d 816, 823 (8th 

Cir. 2014). 

Facts (2) and (3) also do nothing to establish purposeful availment. 

We have held: “[M]ailing payments to the forum state, engaging in 

communications related to the execution and performance of the contract, 

and the existence of a contract between the nonresident defendant and a 

resident of the forum are insufficient to establish . . . minimum contacts . . . .” 

Freudensprung v. Offshore Tech. Servs., Inc., 379 F.3d 327, 344 (5th Cir. 2004); 

see also Halliburton, 921 F.3d. at 544. These sorts of contacts are particularly 

insufficient to satisfy the Due Process Clause when all of the work is 

performed outside the forum State. See Patterson v. Dietze, Inc., 764 F.2d 

1145, 1147 (5th Cir. 1985). 

That leaves Sayers with fact (4): the parties’ agreement contains a 

Texas choice-of-law clause. While such clauses can be probative of 

purposeful availment, they’re never dispositive. See Hanson, 357 U.S. at 254 

(“The issue is personal jurisdiction, not choice of law.”); see also Burger King, 

471 U.S. at 481–82; Pervasive Software Inc. v. Lexware GmbH & Co. KG, 688 

F.3d 214, 223 (5th Cir. 2012). 

But the choice-of-law clause in the Master Services Agreement does 

not suggest the parties expected to resolve their disputes in Texas. That’s 

because the same Agreement also required that arbitration take place in 

accordance with the AAA’s venue-selection rules—i.e., as close as possible 

to the project in Florida. So to the extent the Agreement is probative of the 

parties’ expectations regarding venue, it cuts against finding personal 

jurisdiction in Texas. 

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The parties’ course of dealing cuts the same way. See Burger King, 471 

U.S. at 479 (noting relevance of “the parties’ actual course of dealing”). 

Timberline, High Voltage and Sayers contracted for work on a project in 

Florida. After Sayers allegedly failed to pay its subcontractors’ invoices, the 

parties met in Florida to discuss the dispute. Then they arbitrated the dispute 

in Florida. And Florida’s courts have determined that Florida is a proper 

venue for Timberline and High Voltage to seek enforcement of the 

arbitration awards. See Sayers Constr., L.L.C. v. Timberline Constr., Inc., No. 

3D19-2373, 2020 WL 3443268 (Fla. Dist. Ct. App. June 24, 2020). 

In short, this is Florida’s problem. Not Texas’s. 

AFFIRMED.

2

 

2

 Our disposition obviates the need to consider other arguments raised by the 

parties. Because we conclude that Sayers has failed to establish a prima facie case of personal 

jurisdiction, we need not decide whether exercising personal jurisdiction over Timberline 

and High Voltage would comport with “fair play and substantial justice.” Int’l Shoe, 326 

U.S. at 316 (quotation omitted). Because we resolve this case on jurisdictional grounds, we 

need not reach the subcontractors’ argument that we can affirm the judgment on the basis 

of Colorado River abstention. Because the subcontractors did not cross-appeal the district 

court’s without-prejudice dismissal, we cannot consider whether the case should be 

dismissed with prejudice for Sayers’s violation of the FAA’s service-of-process rules. See 9 

U.S.C. § 12; 15A Charles Alan Wright, Arthur R. Miller, Edward H. 

Cooper, Federal Practice and Procedure § 3904, at 196–98 (2d ed.) (1991) 

(“The rule that a cross-appeal must be filed to secure a favorable modification of the 

judgment is stated and applied in many settings. As shown by common examples an 

appellee cannot, without cross-appeal, seek . . . to convert a dismissal without prejudice 

into a dismissal with prejudice.”). And because Sayers opposed transferring this action when 

it was pending in the district court, we will not consider its new argument that we should 

transfer it under 28 U.S.C. § 1406. Cf. State Indus. Prods. Corp. v. Beta Tech., Inc., 575 F.3d 

450, 456 (5th Cir. 2009) (generally refusing to review arguments raised for the first time on 

appeal). 

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