* Circuit Judge of the Eighth Circuit, sitting by

designation. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 02-50702

_____________________

CENTRAL FREIGHT LINES INC.,

Plaintiff - Appellant,

versus

APA TRANSPORT CORP.,

Defendant - Appellee.

__________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________________________________________________ March 5, 2003

Before JOLLY, HIGGINBOTHAM, and MAGILL, * Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In this appeal, we are called upon to decide whether the

district court erred in dismissing the lawsuit brought by plaintiff

Central Freight Lines, Inc. for lack of personal jurisdiction over

the defendant, APA Transport Corp. We conclude that the district

court does have personal jurisd iction over the defendant.

Accordingly, we reverse the judgment of the district court and

remand for further proceedings.1 The precise details of the D-83 pricing methodology are

not particularly relevant to the disposition of the issue of

2 I

Plaintiff-Appellant Central Freight Lines, Inc. (“CFL”) is a

freight delivery company located in Waco, Tex as that primarily

ships freight in the southwestern United States. DefendantAppellee APA Transport Corp. (“APA”) is a freight delivery company

located in North Bergen, New Jersey. APA primarily ships freight

in the northeastern United States. In September 2000, the two

c ompanies entered into an “Interline Agreement” – a standing

a greement reflecting the terms and conditions under which eac h

carrier could use the services of the other in the other company’s

primary region of operation. In December 2000, CFL began shipping

freight to APA’s terminal in North Bergen, New Jersey for delivery

by APA to customers in APA’s primary area of operat ions in the

northeastern United States.

In March 2001, CFL notified APA and its other partners-inshipping across the United States that CFL anticipated receiving a

two-year contract with Dell Computers to deliver Dell freight from

the Western District of Texas to Dell customers across the United

State s. At this time, CFL requested that each of its partners

determi ne if it could profitably handle Dell’s shipments to its

respective regi on of operation based on a “D-83" pricing

methodology and the other terms and conditions pr ovided by their

respective interline agreements with CFL. 1 APA apparently agreedpersonal jurisdiction.

2 Under the terms of the Interline Agreement, APA

apparently could have “interlined” freight to CFL for delivery in

Texas and the southwestern United States, but APA apparently never

did so. Only CFL interlined freight to APA.

3 to complete CFL’s shipments of Dell merchandise in accord with

their Interline Agreement. In alleged reliance upon the pricing

information provided by APA and CFL’s other partners-in-shipping,

CFL entered into a contract with Dell Computers in March 2001. APA

began receiving shipments of Dell merch andise at its terminal in

New Jersey the following month. 2

At some point shortly thereafter, bu siness dealings between

CFL and APA soured. CFL alleges that APA breached their Interline

Agreement by demanding prices for the delivery of Dell’s freight of

194% of the negotiated and accepted rate. CFL also alleges that

APA wrongfully with held delivery of Dell’s freight until CFL

indicated that it would pay APA and wrongfully refused to accept

additional deliveries. For its part, APA alleges that CFL failed

to pay APA approximately $430,254 for APA’s share of freight

charges. Both parties agree that CFL stopped shipping Dell freight

to APA in early June 2001 and found an alternative carrier to ship

freight to the northeastern United States.

CFL f iled this action against APA on June 28, 2001, in the

Western District of Texas, alleging breach of contract, breach of

fiduciary duty, negligent misrepresentation, and tortious

interference with CFL’s contractual relationship w ith Dell. On3 On July 18, 2002, after the Western District of Texas

granted APA’s motion to dismiss, the District of New Jersey

terminated its stay of APA’s action against CFL and restored APA’s

case to active status. CFL answered APA’s complaint and filed a

counterclaim against APA several days later. According to the

parties, CFL’s counterclaim asserts claims against AP A that are

identical to the claims that CFL has asserted in this case.

Discovery has commenced in that litigation and, according to the

4 August 7, 2001, APA filed a motion to dismiss CFL’s complaint for

lack of personal jurisdiction or for improper venue or, in the

alternative, to transfer venue to the District of New Jersey.

APA then filed a separate action against CFL on July 20, 2001,

in the District of New Jersey, apparently a lleging breach of

contract claims against CFL arising out of CFL’s alleged failure to

pay APA its share of freight revenues for shipments delivered by

APA pursuant to the Interline Agreement. (APA’s case is A -P-A

Transport Corp. v. Central Freight Lines, Inc. , Cause No. 01-CV3445 (D.N.J.).) Upon CFL’s motion, the New Jersey district court

stayed the proceedings in its court until such time as the Western

District of Texas ruled on APA’s motions to dismiss or transfer.

Following limited expedited discovery regarding jurisdiction

and venue, on June 6, 2002, the Western District of Texas granted

APA’s motion to dismiss for lack of personal jurisdiction, finding

that APA did not have sufficient contacts with the State of Texas

to s upport the court’s exercise of specific or general personal

juris diction over the defendant. CFL timely appealed that

judgment. CFL also filed a motion for an expedited appeal that was

granted by this court on September 27, 2002. 3District o f New Jersey docket, a pretrial schedule order has

established April 1, 2003, as a discovery cutoff date.

5 II

This court reviews a district court's dismissal for lack of

personal jurisdiction de novo

. A lpine View Co. v. Atlas Copco

A.B. , 205 F.3d 208, 214 (5th Cir. 2000). When, as here, the

district court did not conduct an evidentiary hearing on

defendant ’s motion to dismiss, the party seeking to assert

jurisdiction is required only to present sufficient facts to make

o ut a p rima facie case supporting jurisdiction. I d. (citing

cases). The court shall accept as true that party’s uncontroverted

allegations (so long as the allegations are not merely conclusory)

and resolve all factual conflicts in favor of the party seeking to

invoke the court’s jurisdiction. Id. (citing cases).

In a diversity action, a federal court may exercise personal

jurisdiction over a defendant only to the extent permitted by the

applicable law of the forum state. See Fed. R. Civ. P. 4(e)(1),

(h)(1), and (k)(1). In this case, it is well-established that the

Texas long-arm statute authorizes the exercise of personal

jurisdiction to the full extent allowed by the Due Process Clause

of the Fourteenth Amendment. S ee 2 Tex. Civ. Prac. & Rem. Code

Ann. § 17.042 (West 1997); Alpine View

, 205 F.3d at 214; Schlobohm

v. Schapiro , 784 S.W. 2d 355, 357 (Tex. 1990).

The Due Process Clause of the Fourteenth Amendment protects an

individual's liberty interest in not being subject to the binding6

judgments of a forum with which he has established no meaningful

“contacts, ties, or relations.” Int'l Shoe Co. v. Washington , 326

U.S. 310, 319 (1945). Exercising personal jurisdiction over a

nonresident defendant is consistent with constitutional due process

when “(1) that defendant has purposeful ly availed himself of the

benefits and protections of the forum state by e stablishing

‘minimum contacts’ with the forum state; and (2) the exercise of

jurisdiction over that defendant does n o t offend ‘traditional

notions of fair play and substantial justice.’” Mink v. AAAA

Development LLC

, 190 F.3d 333, 336 (5th Cir. 1999) (quoting

International Shoe Co.

, 326 U.S. at 316 (1945)). “‘Minimum

contacts’ can be established either through contacts sufficient to

assert specific jurisdiction, or contacts sufficien t to assert

general jurisdiction." Id. ; Alpine View , 205 F.3d at 215. When

a nonresident defendant has “purposefully directed its activities

at the forum state and the litigation results from alleged injuries

that arise out of or relate to those activities,” the defendant’s

contacts are sufficien t to support the exercise of specific

jurisdiction over that defendant. S ee Burger King Corp. v.

Rudzewicz

, 471 U.S. 462, 472 (1985) (internal quotation marks

omitted). General jurisdiction may be asserted when a defendant’s

contacts with the forum state are substantial and “continuous and

systematic ” but unrelated to the instant cause of action. S ee

Helic opteros Nacionales de Colombia, S.A. v. Hall , 466 U.S. 408,

414 n.8 (1984).7

A. Contacts Sufficient To Establish General Jurisdiction

APA does not appear to have the kind of substantial,

continuous, a nd systematic contacts with the State of Texas

sufficient to support an exercise of general jurisdiction in this

case. See Alpine View 205 F.3d at 217-18. See also Helicopteros

Nacionales de Colombia

, 466 U.S. at 414; P erkins v. Benguet

Consolidated Mining Co.

, 342 U.S. 437 (1952)(upholding the exercise

of general jurisdiction where corporation had temporarily relocated

its principal place of business t o forum state by conducting

meetings in the state, maintaining records and bank accounts in the

state and making all important business decisions in the forum

state). In this case, although APA has federal operating authority

in Texas, APA has never registered to do business in the state, has

never maintained any kind of business office or records in the

state, and has never paid franchise taxes in the state. Likewise,

even though APA routinely arranges and receives interline shipments

to and from Texas and apparently sends sales people to the state on

a regular basis to develop business, negotiate contracts, and

service national accounts, APA has never actually operated any

trucks or picked up or delivered any freight in Texas. E ven if

APA’s contacts with the state of Texas have been, in some sense,

“continuous and systematic,” APA’s activities, in toto

, are clearly

not substantial enough to justify subjecting APA to suit in the

Western District of Texas based on a theory of general personal4 CFL a rgues that APA has substantial, continuous, and

systematic contacts with the State of Texas through the operation

of APA’s website. S ee Brief of Appellant at 18-19 (citing Mink v.

AAAA Development, L.L.C.

, 190 F.3d 333 (5th Cir. 1999)). This

argument is meritless. There is no evidence that APA has ever

entered into contracts, conducted business transactions, or

otherwise interacted with Texas residents via its website.

8 jurisdiction. See Wilson v. Belin , 20 F.3d 644, 649-51 (5th Cir.

1999) (distinguishing Perkins on this basis and holding that court

lacked general pers onal jurisdiction over the defendant, despite

the fact that defendant had a relationship with a Texas law firm

and engaged in various professional and pro bono projects in the

State over a period of several years). 4

B. Contacts Sufficient To Establish Specific Jurisdiction

Specific jur isdiction is another matter, however. APA does

appear to have contacts with the State of T exas related to the

transaction and events giving rise to this specific cause of action

that are sufficient to support specific jurisdiction. S ee Burger

King , 471 U.S. at 474-79.

The record supports that APA sent two representatives to Texas

in August of 2000 to meet with CFL at its headquarters in Waco.

APA provided CFL with information about APA. It also obtained

information about CFL with the hope of finding a partner in Texas

to interline freight to the East Coast. Although the district

described this merely as a trip “for the purpose of looking for

additio nal business,” there seems to be no serious dispute that5 In its brief, APA relies heavily on the district court’s

characterization of the facts in the record and the allegations in

the complaint. APA’s reliance on the district court findings and

characterizations is misplaced. It is well established that this

court reviews a dist rict court order dismissing a complaint for

lack of jurisdiction de novo

. Under the circumstances, there is

no basis in law for this court to defer to the district court’s

characterizations of jurisdictional facts, especially when those

characterizations were made without the benefit of an evidentiary

hearing.

9 this meeting led the parties to negotiate and enter into their

Interline Agreement. 5 Furthermore, although the parties dispute

whether the formal negotiations of the Interline Agreement took

place in Waco, Texas or North Bergen, New Jersey, the record

appears to indicate that all of the formal negotiations took place

via telephone and written correspondence between the two parties

from their respective headquarters

. In other words, APA can not

really dispute the fact that, during the course of negotiations,

APA specifically and deliberately “re ached out” to a Texas

corporation by telephone and mail with the deliberate aim of

entering into a long-standing contractual relationship with a Texas

corporation. S ee Burger King

, 471 U.S. at 479-80 (holding that

Rudzewicz “reached out” beyond Michigan and made contact with

Florida when he negotiated with a Florida corporation (Burger King)

for a franchise that envisioned long-term connections between his

business and Burger King in Flori da and communicated with the

corporation by mail and by telephone).

Furth ermore, by entering into the Interline Agreement, APA

knew that it was affiliatin g itself with an enterprise based6 Of course, the “unilateral activity” of a plaintiff who

claims some relationship with a nonresident defendant alone cannot

satisfy the requirement of contact with the forum state. B urger

King

, 471 U.S. at 474 (quoting Hanson v. Denckla

, 357 U.S. 235, 253

(1958)). However, a defendant can purposefully contact the forum

state and avail itself of the benefits and protections of the

10 primarily in Texas. C f. Burger King

, 4 71 US. at 480 (making

essentially the same point about a Michigan defendant who entered

into a franchise ag reement with Florida-based Burger King). S ee

also Travelers Health Ass’n v. Virginia , 339 U.S. 643, 647 (1950)

(upholding personal jurisdiction based on the fact that defendant

created “continuing obligations” between himself and a resident of

the forum). Furthermore, APA presumably knew that many of CFL’s

customers would also come from that state. Although APA does not

appear to have ever picked up freight for CFL in Texas or delivered

freight to CFL or customers in Texas pursuant to the Interline

Agreement, there can be no question that APA took “purposeful and

affirmative action” by entering into the Interline Agreement,

providing CFL with pricing and shipping information, and agreeing

to accept shipments by CFL from Texas for Texas customers that had

the clearly “foreseeable” effect of “causing business activity in

the forum state.” S ee Mississippi Interstate Express, Inc. v.

Transpo, Inc.

, 68 1 F.2d 1003, 1007 (5th Cir. 1982). S ee also

Burger King

, 471 U.S. at 476 (holding tha t specific personal

jurisdiction cannot be avoided merely because the defendant did not

physically enter the state and that it may be based on actions that

are purposefully directed toward a resident of a forum state.) 6forum’s laws by creating continuing obligations between itself and

residents of the f orum. I d. Thus, this circuit has held that a

nonresident can establish contact with the forum by taking

purposeful and affirmative action, the effect of which is to cause

business activity (foreseeable by the defendant) in the forum

state. M ississippi Interstate Express, Inc. v. Transpo, Inc.

, 681

F.2d at 10 07. Although T ranspo was decided several years before

Burger King

, the Supreme Court’s landmark decision on the

constitutional foundation of personal jurisdiction in contract

cases, there is nothing in Transpo that see ms inconsistent with

Burger King

.

11 These contacts by APA with the state of Texas cannot be

c haracterized as “random,” “fortuitous,” or “attenuated.” S ee

Burger King

, 471 U.S. at 474, 478-80. Although the Interline

Agreement apparently does not contain a forum selection clause, a

choice of law clause, or some other provision that could have put

APA on specific notice that it might be amenable to suit in Texas,

see id. at 481, neither does the Agreement contain any provision

that would give APA reason to think that it could not be haled into

court in Texas in the event that APA allegedly breached its

agreement with CFL. C f. Marathon Oil

, 182 F.3d 291, 295 (5th Cir.

1999) (no general or specific perso nal jurisdiction based on the

presence of defendant at three business meetings in Texas where the

contract at issue contained cl auses providing for Swedish

arbitration according to Norwegian law). Under any “highly

realistic” and non-“mechanical” understanding of the Interline

Agreement, its negotiations, and its future consequen ces for the

parties’ business relationship, it is clear that APA purposefully

directed its in-state and out-of-state activities at a resident of12

the forum (namely, CFL) with the aim of establishing a long-term

association with that resident and wi th the foreseeable and

intended result of causing economic activity within the forum

state. Based on these facts, APA should have reasonably

anticipated being haled into court in Texas on breach of contract

claims related to that Interline Agreement, notwithstanding APA’s

relatively brief physical presence in the state. S ee Burger King

,

471 U.S. at 474-75.

Furthermore

– and quite apart from the ultimate merits of the

claim

– APA should have reasonably anticipated being haled into

court in Texas on alleged intentional tort claims that are directly

related to AP A’s performance under the Interline Agreement. S ee

Calder v. Jones

, 465 U.S. 783, 789 (1984) (holding defendant

subject to personal jurisdiction in California based on foreseeable

effects in that state of allegedly libelous conduct committed in

Florida). Although mere allegations of tortious interference with

a forum resident’s contractual rig hts are not sufficient to

establish specific personal jurisdiction, see Panda Brandywine

Corp. v. Potomac Electric Power Co. , 253 F.3d 865 (5th Cir. 2001)

(affirming dismissal for lack of personal jurisdi ction), it is

clear that specific personal jurisdiction may be based on

intentionally tortious conduct that is purposefully directed toward

the forum state. I d. at 869. While we express no view on the

ultimate merits of CFL’s intentional tort claims, at this stage of

the proceeding we are obligated to assume CFL’s non-conclusory7 In contrast in P anda Brandywine Corp.

, a panel of th i s

court held that the district cour t lacked personal jurisdiction

13 allegations are tru e. Alpine View , 205 F.3d at 214. Based on

CFL’s complaint, we find that CFL has pled facts that are

sufficient to show that APA committed intentional torts that were

purposefully directed at APA’s contractual business relationship

with another Texas entity. Specifically, CFL has alleged that APA

was aware of CFL’s contractual relationship with Dell Computers and

that APA i ntentionally attempted to interfere with that

relationship by holding Dell freight hostage in New Jersey and by

manipulating the price of freight delivery in the northeast. CFL

has alleged further that AP A’s actions actually harmed the

relationship between CFL and Dell C omputers resulting in damages

above the statutory minimum for federal d iversity jurisdiction.

See Plaintiff’s First Amended Complaint ¶ 4.04. Although APA’s

alleged tortious actions apparently involved physical assets held

by APA in New Jersey, it is no “mere fortuity” that CFL allegedly

suffered injury in Texas as a result of APA’s conduct. Cf. Panda

Brandywine Corp.

, 253 F.3d at 869-70. Texas is not only CFL’s home

state; it is also the primary location of CFL’s business

relationship with Dell Computers. Under the circumstances, it is

not unreasonable for APA to be haled into court i n the Western

District of Texas for alleged intentional interfer ence with the

contractual relationship of two Texas-based companies whose

business dealings are based in Texas. Id. 7over defendant in Texas for tortious interference with the

financing arrangements of a Mar yland power generating plant.

According to the court, personal jurisdiction was lacking because

defendant’s alleged tortious interference had “no relation to Texas

other than the fortuity that [the plaintiff s] reside[d] there.”

Id.

14 C. Traditional Notions Of Fair Play And Substantial Justice

Once a plaintiff establishes minimum contacts between the

defendant and the f orum State, the burden of proof shifts to the

defendant to show that the assertion of jurisdiction is unfair and

unreasonable. Wien Air Alaska, Inc. v. Brandt , 195 F.3d 208, 215

(5th Cir. 1999). The defendant must make a “compelling case.”

Burger King

, 471 U.S. at 477. In determining whether the exercise

of jurisdiction is fair and reasonable, the court must balance: (1)

the burden on the nonresident defendant of having to defend itself

in the forum; (2) the interests of the forum state in the case;

(3) the plaintiff's interest in obtaining convenient and effective

relief; (4) the interstate judicial system's interest in the most

efficient resolution of controversies; and (5) the shared interests

of the states in furthering fundamental social policies. Id. See

generally Asahi Metal Indus. Co. v. Superior Court , 480 U.S. 102,

115 (1987).

In this case, APA argues that th e company will be

substantially burdened if it is required to sen d executives and

records to defend the compa ny in Texas; that the State of Texas

itself has little interest in this case compared to New Jersey; and

that CFL’s interest in litigating the case in Texas is purely15

strategic in nature and very slight compared to the burden that

will be placed on APA if APA is required to defend itself in Texas.

None of these arguments persuasively demonstrates that “traditional

notions of fair play and substantial justice” would be offended by

asserting personal jurisdiction over APA in this case. As CFL

argues in its brief, the burden of requiring APA to litigate in

Texas is no greater than the burden of requiring CFL to litigate in

New Jersey. Furthermore, Texas would seem to have an interest in

adjudicating its domici l iary’s alleged breach of contract and

tortious interference claims that is suffic ient to satisfy Due

Process concerns about traditional notions of f air play and

substantial j ustice. CFL’s interest in obtaining convenient and

effective relief also suggests that the Western District of Texas

is not an unfair or unjust place to litigate this dispute. As CFL

argues, the Western District of Texas has subpoen a power over

documents and witnesses of Dell Computers that may be necessary to

prove CFL’s tortious interference claims against APA.

At this point, the only interest that might arguably cut

against the assertion of personal jurisdiction in this case is the

interstate judicial system's interest in the most efficient

resolution of controversies. As noted above, CFL has filed a

counterclaim in A-P-A Transpor t Corp. v. Central Freight Lines,

Inc.

, Cause No. 01-CV-3445 (D.N.J.) that asserts claims that are

identical to the claims asserted in this case. Under normal

circumstances, the first to file rule would point to the Western8 On remand to the Western District of Texas, the district

court may be called upon to decide whether to transfer the case to

the District of New Jersey. Similarly, the New Jersey district

court may be asked to consider whether it should transfer the cases

filed there under the “first to file” rule that pr evails in the

federal courts. W estern Gulf Maritime Association v. Ila Deep Sea

Local 24, South Atlantic and Gulf Coast District of the Ila; AFL

, 751 F.2d 721, 728-29 (5th Cir. 1985) (holding that the court with

prior jurisdiction over the common subject matter should resolve

all issues presented in related actions). Because the question of

venue is not properly before us on appeal, we express no view on

the subject, and our opinion today should not be construed by any

court to suggest otherwise.

16 District of Texas as the appropriate forum for the adjudication of

all the claims arising out of the parties’ alleged conduct under

the Interline Agreement. However, in this case, litigation has

been proceeding in the District of New Jersey for six months during

the pendency of this appeal. On account of this, the District of

New Jersey might conceivably be the most efficient place to resolve

the parties’ controversies. Nevertheless, even if the District of

New Jersey is a marginally more efficient forum for resolution of

these claims at this point, asserting personal jurisdiction over

APA in this case would not seem to be unconstitutionally offensive

to traditional notions of fair play and substantial justice. 8

In short, APA has failed to present a compelling case in

support of its claim that asserting personal jurisdiction in this

case would be offensive to traditional notions of fair play and

substantial justice. See Burger King , 471 U.S. at 477.17 III

In sum, we conclude that APA may not avoid the personal

jurisdiction of the Western District of Texas merely because APA

did not physically enter the State of Texas to deliver freight to

customers or interline freight to CFL for delivery to some other

final destination in the southwestern United States. S ee Burger

King

, 471 U.S. at 476. Although territorial presence and activity

will frequently enhance a defendant’s relationship to the forum

state and reinforce the reasonableness of subjecting it to suit

there, an inescapable fact of modern life dictates that a

substantial amount of business will be transacted by mail and by

electronic wire communications across state lines. I d. So long as

a commercial actor’s efforts are “purposefully directed” toward a

resident of another State, the me re absence of physical contacts

within the forum state cannot defeat personal jurisdiction there.

Id. In this case, APA clearly did purposefully “reach out” to CFL

in Texas by visiting CFL’ s headquarters and engaging in

negotiations with CFL by mail and by telephone. Furthermore, APA

clearly did so with the goal of establishing a long-term

associa tion with CFL and with the foreseeable result of causing

economic activity within the forum state. On account of this, APA

had fair warning that it could be sued in Texas for alleged breach

of the Interline Agreement and for alleged intentional torts

arising out of its performance under that agreement. Accordingly,18

we REVERSE the judgment of the district court and REMAND for

further proceedings.

REVERSED AND REMANDED.