UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

_______________

No. 95-40258 Summary Calendar _______________

TERRY L. O'QUINN,

Plaintiff-Appellant,

versus

WORLD INDUSTRIAL CONSTRUCTORS, INC., ET AL.,

Defendants-Appellees.

_______________________________________________

Appeal from the United States District Court for the Eastern District of Texas (1:94 CV 179) _______________________________________________ September 19, 1995

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Plaintiff Terry L. O'Quinn appeals the district court's order

granting Defendants', World Industrial Constructors, Inc., et al.

("World"), motion to dismiss for lack of personal jurisdiction. We

affirm.

World, a United States Virgin Islands corporation, entered

into a contract for the construction of an oil refinery in the

Virgin Islands. World then entered into a separate contract with

* Local Rule 47.5.1 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well- settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. Merit Industrial Constructors, Inc. ("Merit"), a Louisiana

corporation, to provide the labor and facilities necessary to

recruit construction workers in the contiguous United States for

the oil refinery job. The World-Merit contract explicitly states

that Merit does not have authority to hire, and that all hiring

will be done by World in the Virgin Islands.

Merit established an office in Texas City, Texas. O'Quinn

submitted an employment application to Merit's Texas office. Merit

arranged for O'Quinn to travel to Merit's Louisiana offices for

testing and then to World's facilities in the Virgin Islands, where

he was hired as a pipefitter. Shortly thereafter, O'Quinn

sustained a back injury in the course of his employment.

O'Quinn filed a negligence action against World and Merit in

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

World and Merit filed alternative motions either to transfer venue

or to dismiss for lack of personal jurisdiction. The district

court granted World's motion to dismiss for lack of personal

jurisdiction. The court then granted O'Quinn's motion to

voluntarily dismiss the claims against Merit. O'Quinn appeals,

contending that the district court improperly granted World's

motion to dismiss for lack of personal jurisdiction.1

1 We review the district court's determination of personal jurisdiction over nonresident defendants de novo. Command-Aire v. Ontario Mechanical Sales & Serv., Inc.,

(5th Cir. 1992). Disputed material facts must be construed in the light most favorable to the plaintiff. Bullion v. Gillespie,

(5th Cir. 1990).

-2- A nonresident defendant is subject to personal jurisdiction in

a federal diversity suit to the extent that the law of the forum

state and constitutional due process considerations allow. Bullion

v. Gillespie,

(5th Cir. 1990). Both sides agree

that Texas law applies to the jurisdictional inquiry in this case.

Consequently, the personal jurisdiction of the district court

depends on the scope of the Texas long-arm statute.2 Texas courts

have interpreted the Texas long-arm statute to extend to the limits

of due process. Bearry v. Beech Aircraft Corp.,

(5th Cir. 1987); U-Anchor Advertising, Inc. v. Burt,

(Tex. 1977), cert. denied,

,

,

(1978). Thus, personal jurisdiction over a

nonresident defendant under Texas law is determined by a

constitutional due process analysis. Bearry,

.

Due process requires that federal courts assert personal

jurisdiction over nonresident defendants only in cases in which

(1) the defendant has purposefully established minimum contacts

with the forum state, and (2) jurisdiction over the defendant does

not offend traditional notions of fair play and substantial

justice. Asahi Metal Indus. Co. v. Superior Court,

,

,

(1987). Personal

jurisdiction based on a minimum contacts analysis may be either

general or specific. Dalton v. R & W Marine, Inc.,

(5th Cir. 1990). In this case, O'Quinn alleges only

specific personal jurisdiction.

2

(West 1986).

-3- Specific jurisdiction is a two-prong inquiry. First, the

defendant must have purposefully availed himself of the forum

state, thereby seeking the benefits and protections of the laws of

the state. Bullion,

. Second, the plaintiff's

cause of action must arise out of the defendant's contacts with the

forum state. Dalton,

.

Seeking to establish the purposeful availment prong of the

specific jurisdiction inquiry, O'Quinn first contends that personal

jurisdiction over World is proper in Texas because a principal-

agent relationship existed between World and Merit when Merit

established recruiting offices and performed recruiting services in

Texas. According to well-established law, a defendant may be found

subject to personal jurisdiction as a result of the actions of an

agent. Davis v. Asano Bussan Co.,

(5th Cir.

1954); Sher v. Johnson,

(9th Cir. 1990). Under

Texas law, in order for a principal-agent relationship to be

established, the principal must have the right to control both the

means and the details of the process by which the agent

accomplishes the actions at issue.3 First Nat'l Bank of Fort Worth

v. Bullock,

(Tex.App.--Dallas 1979, writ

ref'd n.r.e.).

Although the World-Merit contract specifies that Merit is to

provide the labor and local facilities necessary to process

3 Under Texas law, agency is a mixed question of law and fact, freely reviewable on appeal to the extent that the facts underlying the agency question are undisputed. American International Trading Corp. v. Petroles Mexicanos,

(5th Cir. 1987).

-4- applications, World simply does not have contractual authority to

determine where such facilities are to be located. When Merit

established its office in Texas City, Merit purposefully availed

itself of the laws and protections of Texas. However, World did

not have sufficient control over the means or details of Merit's

actions to establish an agency relationship. See Matter of Carolin

Paxson Advertising, Inc.,

, 598 (5th Cir. 1991)

(finding no agency relationship between advertising firm and

television station because of inadequate showing of right to

control). Thus, we find that Merit was not acting as an agent of

World while it operated its local office and conducted recruiting

services in Texas. Consequently, O'Quinn has not established the

contacts necessary to a finding of specific jurisdiction based on

agency theory.

In the alternative, O'Quinn argues that even if Merit was

acting only as an independent contractor of World, personal

jurisdiction over World was proper in Texas because O'Quinn's cause

of action arose out of Merit's activities in Texas. However, the

actions of an independent contractor in a forum state are not

sufficient, absent other contacts, to subject a nonresident

corporation to personal jurisdiction. Smith v. Piper Aircraft

Corp.,

(5th Cir. 1970); see also Bearry,

(holding manufacturer's maintenance of distribution

network in the forum insufficient to support finding of general

jurisdiction). O'Quinn does not allege any other contacts between

World and Texas. Thus, O'Quinn has not established that World,

-5- either directly or through an agent, purposely availed itself of

the benefits and protections of Texas. On this record, we hold

that O'Quinn has failed to establish specific personal jurisdiction

over World.4

Accordingly, we AFFIRM the order of the district court

granting World's motion to dismiss for lack of jurisdiction.

4 Since we do not find that there are sufficient contacts between World and Texas to establish personal jurisdiction, we do not reach the separate specific jurisdictional requirement that O'Quinn's cause of action arise out of World's contacts with Texas. Nor do we reach the separate due process question of whether the exercise of jurisdiction by a Texas court over World would comport with traditional notions of fair play and substantial justice.

-6-