* Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 97-20708

__________________

JOE H. SELF,

Plaintiff-Appellant,

versus

M&M CHEMICAL COMPANY; SOLITE CORPORATION; CHARLES HORTON,

Defendants-Appellees.

______________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(H-96-CV-2613)

______________________________________________

March 17, 1999

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Joe H. Self appeals from an order of the district court

dismissing his suit against M&M Chemical Company, Solite

Corporation, and Charles Horton (“Defendants”) for lack of

personal jurisdiction. Because we find that the district court

erred by failing to transfer this case to a venue that could

assert jurisdiction over the Defendants, we vacate the district

court’s judgment in part and remand.

Self’s suit is based upon injuries he received on August 15,
2

1995, at a truck stop in Martinsburg, West Virginia. While Self

was kneeling next to his parked truck to adjust the tandem,

another truck backed up over Self’s foot, causing severe and

permanent injuries including damage to the spinal nerve roots in

his back. The other truck was driven by Horton, an Alabama

resident, who was working at the time for M&M Chemical, an

Alabama corporation, which is a subsidiary of Solite, a Virginia

corporation.

On August 15, 1996, Self, a Texas resident, filed a personal

injury suit against Horton, M&M Chemical, and Solite in the

Southern District of Texas, Houston Division, under that court’s

diversity jurisdiction. Self’s complaint alleged that Horton was

liable for negligence and that M&M Chemical and Solite were

vicariously liable for Horton’s negligence under the law of

respondeat superior and directly liable for failure to train and

supervise. Self sought damages for physical pain, emotional

distress, medical expenses, loss of earnings, and physical

impairment.

On October 11, 1996, the Defendants filed a Rule 12(b)(2)

motion to dismiss for lack of personal jurisdiction, arguing that

none of the Defendants had sufficient Texas contacts to bring

them within the reach of the state’s long-arm statute. They

asserted that neither Horton nor Solite had any contacts with

Texas. As to M&M Chemical, an attached affidavit from the

company’s president, Don Burris, attested that M&M Chemical’s

truckers had transported “no more than seven loads to or from the
3

State of Texas over the last ten years.” These contacts, the

motion contended, were insufficient to establish general

jurisdiction in Texas over M&M Chemical. Self’s response to the

12(b)(2) motion contended that the district court did have

personal jurisdiction over all three of the Defendants under

Texas’s long-arm statute. Alternatively, Self requested that, if

the court found personal jurisdiction lacking in Texas, it

transfer the case to a forum that could assert jurisdiction.

On July 14, 1997, the district court granted the Defendants’

motion to dismiss for lack of personal jurisdiction. The court

found that it clearly did not have jurisdiction over Horton and

Solite as neither had any contacts with Texas. It also found

that it did not have jurisdiction over M&M Chemical because seven

deliveries over a ten-year period was too brief and intermittent

to constitute the “continuous and systematic” contacts necessary

to subject M&M Chemical to general jurisdiction in Texas. 

The district court also rejected Self’s request that the

court transfer the case to a proper venue instead of dismissing

it. Although the court acknowledged its statutory authorization

to order a transfer, it found that Self had not shown that a

transfer in this case was warranted. First, the court noted that

Self had failed to identify a specific district where the action

could be relocated. Second, the court held that because Self had

brought the suit in a forum that had no contacts with two of the

Defendants and only tenuous contacts with the third, transfer

would improperly reward him for his lack of diligence in
4

selecting a proper forum from the outset.

On July 31, 1997, Self filed a motion for a new trial

pursuant to Federal Rule of Civil Procedure 59, and on August 11,

1997, he filed a motion for relief from judgment under Rule

60(b). In both motions, Self argued that newly discovered

evidence supported his claim that there was jurisdiction over the

Defendants in Texas. Specifically, Self directed the court to a

July 2 deposition of Barron Durden, M&M Chemical’s trucking

superintendent. Durden testified that M&M Chemical had made

eighteen deliveries to Texas between 1995 and 1997, which was

many more than the seven deliveries over ten years Dan Burris

described in his affidavit and the court relied upon in its

decision. The motions also stated that Self had been preparing

to supplement his response to the dismissal motion with this

recently obtained evidence when the order dismissing his case was

entered.

On August 14, 1997, while the Rule 59 and 60(b) motions were

still pending, Self filed a notice of appeal from the district

court’s dismissal order. On October 2, 1997, he also filed with

the district court a supplemental motion to transfer the case to

the Northern District of Alabama. The district court denied

Self’s Rule 59 and Rule 60(b) motions on March 29, 1998, and two

days later denied his supplemental transfer motion. Self neither

filed a new notice of appeal nor amended his previously filed

notice to include any of the post-dismissal rulings.

DISCUSSION
5

On appeal, Self argues that the district court erred by (1)

finding that it could not exercise personal jurisdiction over the

Defendants, (2) refusing to transfer the case to the Northern

District of Alabama, (3) denying his Rule 59 motion for a new

trial, and (4) denying his Rule 60(b) motion for relief from

judgment. We review de novo a district court’s determination

that it lacks jurisdiction over a non-resident defendant, see

Allred v. Moore & Peterson, 117 F.3d 278, 281 (5th Cir. 1997),

whereas we review only for abuse of discretion a district court’s

refusal to transfer a case, see Peteet v. Dow Chemical Co., 868

F.2d 1428, 1436 (5th Cir. 1989), denial of a motion for a new

trial, see Hidden Oaks Limited v. City of Austin, 138 F.3d 1036,

1049 (5th Cir. 1988), or denial of a motion for relief from

judgment under Rule 60(b), see First Nationwide Bank v. Summer

House Joint Venture, 902 F.2d 1197, 1200 (5th Cir. 1990).

I. Personal Jurisdiction

We find that the district court did not err in holding that

it could not assert personal jurisdiction over the Defendants. A

federal court has jurisdiction over nonresident defendants in a

diversity suit to the same extent that a state court in that

forum would have jurisdiction. See Wilson v. Belin, 20 F.3d 644,

646 (5th Cir. 1994). A state court’s jurisdiction is delimited

by the state’s long-arm statute and the Due Process Clause of the

Fourteenth Amendment to the United States Constitution. See

Bullion v. Gillespie, 895 F.2d 213, 216 (5th Cir. 1990). Because
6

Texas’s long-arm statute, Tex. Civ. Prac. & Rem. Code Ann. §

17.042, has been interpreted by the Texas courts as being

coextensive with due process, see Schlobohm v. Schapiro, 784

S.W.2d 355, 357 (Tex. 1990), we review any exercise of

jurisdiction over nonresident defendants by a federal district

court in Texas with reference only to the federal constitutional

limitations.

An exercise of jurisdiction over a nonresident defendant

comports with due process when two conditions are met. First,

the nonresident defendant must have “purposefully availed himself

of the benefits and protections of the forum state by

establishing ‘minimum contacts’ with that forum state.” Belin,

20 F.3d at 647 (quoting International Shoe Co. v. Washington, 326

U.S. 310, 316 (1945)). Second, exercising jurisdiction “must not

offend ‘traditional notions of fair play and substantial

justice.’” Id. (quoting Asahi Metal Indus. Co. v. Superior

Court, 480 U.S. 102, 113 (1987)). Additionally, where the

plaintiff’s claims did not arise out of any of the defendant’s

contacts with the forum state, as is the undisputed situation in

this case, the plaintiff may bring suit in the forum’s courts

only if those courts can assert general jurisdiction over the

defendant. For general jurisdiction to attach, due process

requires that a nonresident defendant’s “minimum contacts” with

the forum state be “continuous and systematic.” Helicopteros

Nacionales De Colombia v. Hall, 466 U.S. 408, 415-16 (1984). 

It was Self’s burden to present to the district court facts
 

1Although the discovery performed by Self immediately

preceding the district court’s ruling revealed Burris may have

underestimated the number of Texas deliveries made by M&M Chemical,

that information had not been presented to the district court prior

to its finding that personal jurisdiction was lacking and thus

cannot be considered by this Court on review of that decision.

7

sufficient to establish a case for personal jurisdiction over the

Defendants. See Bullion, 895 F.2d at 216-17 (quoting WNS, Inc.

v. Farrow, 884 F.2d 200, 203 (5th Cir. 1989)). Because the court

made its jurisdictional ruling without an evidentiary hearing,

Self’s burden could be met by showing only a prima facie case,

although that burden would rise to a preponderance of the

evidence at trial. See Felch, 92 F.3d at 326. In deciding

whether Self had established a prima facie case, the district

court was required to take uncontroverted allegations in Self’s

complaint as being true and to resolve all conflicts contained in

the parties’ affidavits in Self’s favor. See Bullion, 895 F.2d

at 217.

The district court correctly applied these standards in

finding that Self did not establish a prima facie case of

personal jurisdiction in Texas over M&M Chemical. Self’s

complaint did not allege any specific contacts between M&M

Chemical and Texas. Furthermore, the only contacts revealed by

the parties’ affidavits were M&M Chemical’s “no more than seven”

deliveries to Texas over a ten year period, attested to by M&M

Chemical’s president, Don Burris.1 Although we have found

evidence of an unspecified number of deliveries sufficient to

establish a prima facie case of “minimum contacts” in at least
8

one context, see DeMelo v. Touche Marine, Inc., 711 F.2d 1260,

1271 & n.13 (1983) (finding a prima facie case for personal

jurisdiction based upon an affidavit indicating an unspecified

number of product shipments into Mississippi), the greater weight

of authority from this circuit suggests that seven deliveries

over ten years was not sufficiently “continuous and systematic”

to subject M&M Chemical to general jurisdiction. See Felch v.

Transportes Lar-Mex SA DE CV, 92 F.3d 320, 328 (5th Cir. 1996)

(finding that an unspecified number of truck deliveries into

Texas is not sufficiently “continuous and systematic” to create

general jurisdiction in Texas); Dalton v. R & W Marine, Inc., 897

F.2d 1359, (5th Cir. 1990) (finding that being title record

holder to charter boats operated in Louisiana was not

sufficiently “continuous and systemic” to create general

jurisdiction in Louisiana); Bearry v. Beech Aircraft Corp., 818

F.2d 370, 375-76 (5th Cir. 1987) (finding that substantial sales

through Texas dealers were not sufficiently “continuous and

systematic” to subject an airplane manufacturer to general

jurisdiction in Texas). Based upon that precedent, we find that

the district court properly found that Self had not established a

prima facie case for general jurisdiction over M&M Chemical.

The district court also properly applied the due process

factors in finding that it could not assert general jurisdiction

over Horton. Neither Self’s complaint nor any of the affidavits

describe or suggest any contacts between Horton and Texas. 

Without any allegations or evidence presented, the court was
 

2In an affidavit attached to the Defendants’ motion to

dismiss, J. Wayne Thornton, a vice president of Solite, did attest

that Solite, itself, did not have any contacts with Texas.

Thornton’s affidavit was silent, however, regarding the alleged

alter ego relationship between Solite and M&M Chemical.

9

clearly correct in finding that a prima facie case for general

jurisdiction over Horton was not established.

Although we likewise affirm the district court’s finding

that it could not assert general jurisdiction over Solite, we are

unable to do so on the court’s asserted basis that Solite had

“absolutely no contacts with Texas.” Self alleged in his

complaint that “Defendant M&M . . . is the alter ego of Defendant

Solite.” This allegation was not refuted in any of the

Defendants’ affidavits,2 and the district court was therefore

required to accept it as true in making its preliminary

jurisdictional ruling. When two defendant corporations are

established as being alter egos, the contacts of each are

attributed to both for jurisdictional purposes. See Gundle

Lining Construction Corp. v. Adams County Asphalt, Inc., 85 F.3d

201, 208 (5th Cir. 1996). Thus, in this situation, without any

evidence refuting Self’s allegation, the district court was

required to impute all of M&M Chemical’s contacts to Solite. 

Nevertheless, because M&M Chemical’s contacts were insufficient

to establish general jurisdiction, we ultimately agree with the

district court that Self did not establish a prima facie case for

asserting general jurisdiction over Solite either.

II. Transfer

We find that the district court abused its discretion in
10

denying Self’s request that, upon a finding that the Defendants

were not amenable to personal jurisdiction in Texas, the case be

transferred to another venue instead of dismissed. A district

court in which a jurisdictionally improper case is filed is

empowered by 28 U.S.C. § 1404(a) or § 1406(a) either to dismiss

the case or, “if it be in the interest of justice,” to transfer

it to another venue where jurisdiction may be had. See Goldlawr,

Inc. v. Heiman, 369 U.S. 463, 465-66 (1962); Bentz v. Recile, 778

F.2d 1026, 1028 (5th Cir. 1985). The congressional purpose in

allowing such transfers, as stated by the Supreme Court in

Goldlawr, was to “avoid[] the injustice which had often resulted

to plaintiffs from dismissal of their actions merely because they

had made an erroneous guess with regard to the existence of some

elusive fact.” Goldlawr, 369 U.S. at 466.

Neither of the district court’s reasons for refusing to

transfer Self’s case were sufficient to overcome the injustice

Self faced by having his suit extinguished by the court’s

dismissal. First, Self’s failure to identify a specific

transferee court in his original response to the motion to

dismiss was, at most, a de minimis error. We are aware of no

other court that has attached weight to such an omission. 

Moreover, it was obvious from the facts of this case that courts

in both West Virginia and Alabama would likely be able to assert

jurisdiction over all of the Defendants. The district court

could easily have identified a suitable transferee district

either sua sponte or through supplemental briefing by the
 

3We also note that the district court chose to dismiss Self’s

complaint seven weeks before the discovery deadline contained in

its own scheduling order. Although a district court is not

required to wait until discovery is completed before ruling on

jurisdictional motions, see Patterson v. Dietze, Inc., 764 F.2d

1145, 1147 & n.4 (5th Cir. 1985), we reject any suggestion that

Self, by utilizing the full time provided for discovery by the

district court, was not diligent in pursuing the facts necessary to

support the court’s exercise of jurisdiction. Moreover, we observe

that had the district court postponed ruling on the dismissal

motion for the few remaining weeks in the discovery period, it

could have considered the additional testimony Self obtained in the

July 2 deposition of Barron Durden, which contradicted the

affidavit of Don Burris relied upon by the court in its decision.

11

parties.

Second, we do not agree with the district court that

granting a transfer would have rewarded Self for lack of

diligence in choosing a proper forum from the outset. As

discussed above, M&M Chemical initially admitted to several

contacts with Texas and, for purposes of the motion to dismiss,

those contacts should have been imputed to Solite as well. 

Although we are affirming the district court on its

jurisdictional ruling, this was a close case in which it was

reasonable for Self to have guessed that M&M Chemical, a national

hazardous waste disposal company, would have had “continuous and

systematic” contacts with Texas. Dismissing Self’s action based

on his having been unable to find sufficient evidence to support

his guess regarding that elusive jurisdictional fact would impose

the very injustice that Congress intended to alleviate by

permitting transfers under § 1404(a) and § 1406(a).3 It was,

therefore, an abuse of discretion for the district court to have

dismissed the case instead of granting Self’s request for a
12

transfer.
13

III. Rule 59 and 60(b) Motions

We decline to consider Self’s arguments that the district

court erred by rejecting his Rule 59 motion for a new trial and

Rule 60(b) motion for relief from judgment. Because Self filed

his notice of appeal before the district court ruled on either of

those motions and did not amend his notice to include the court’s

rulings after they were made, they were not appealed and are not

properly before this court.

CONCLUSION

For the foregoing reasons, we affirm the district court’s

decision insofar as it found that the Defendants are not amenable

to personal jurisdiction in Texas. Nonetheless, we vacate the

district court’s dismissal of Self’s complaint and remand with

instructions to transfer this case to a suitable venue where

jurisdiction may be had over the Defendants.

AFFIRMED in part, VACATED in part, and REMANDED