John Prejean was survived by his wife, Mary Prejean, and two minor children. The plaintiffs' complaint states that Mrs. Prejean and the children are residents of Dallas, Texas

Alphonse Mouton was survived by his wife, Joanna Mouton, and one minor child. The complaint states that Mrs. Mouton and the child are residents of Houma, Louisiana, but at the time of the fatal crash were residents of Paris, France.

By virtue of Fed.R.Civ.Pro. 4(d)(7) & (e), a federal court in a diversity action enjoys jurisdiction over a nonresident defendant to the extent permitted by the long arm statute of the forum state. Gold Kist, Inc. v. Baskin-Robbins Ice Cream Co., 623 F.2d 375, 377 (5th Cir.1980); Product Promotions, Inc. v. Cousteau, 495 F.2d 483, 489 (5th Cir.1974); Arrowsmith v. United Press International, 320 F.2d 219, 222-25 (2nd Cir.1963) (en banc) (Friendly, J.)

See Oswalt v. Scripto, Inc., 616 F.2d 191, 196 (5th Cir.1980); Walker v. Newgent, 583 F.2d 163, 166 (5th Cir.1978); Product Promotions, Inc. v. Cousteau, 495 F.2d 483, 489, 492 (5th Cir.1974); Jetco Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228, 1232 (5th Cir.1973); Coulter v. Sears, Roebuck & Co., 426 F.2d 1315, 1316 (5th Cir.1970); Atwood Hatcheries v. Heisdorf & Nelson Farms, 357 F.2d 847, 852 (5th Cir.1966); Pizza Inn, Inc. v. Lumar, 513 S.W.2d 251, 253 (Tex.Civ.App. Eastland 1974, writ ref'd n.r.e.). But see Eyerly Aircraft Co. v. Killian, 414 F.2d 591, 593 (5th Cir.1969) (due process considered before question of statutory requirements)

The reach the statute sanctions is a question of state law, and federal courts are required to give the statute the same construction as would the state's highest court. Jetco, 473 F.2d at 1232; Walker v. Savell, 335 F.2d 536, 540 (5th Cir.1964). The reach that due process permits is a question of federal law.

In fact, four paradigms can be drawn from the case law with regard to the reach due process permits. The first is that of International Shoe itself: the resident plaintiff's cause of action arises out of the nonresident defendant's substantial activity in the forum. The second is that of Perkins: the cause of action is unrelated to the substantial activity in the forum. In the third, the forum contacts are casual, isolated, occasional, single, or slight, and the cause of action arises out of that activity. Depending on the nature and quality of these contacts and the relative inconvenience in requiring one of the parties to litigate in another state, personal jurisdiction may be asserted. McGee v. International Life Insurance Co., 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957). Finally, when the cause of action is unrelated to the nonresident's slight activity within the forum, then the constitutionality of jurisdiction is least likely, though the nature and quality of the slight contacts and the relative fairness to the parties could still produce a rare case in which jurisdiction would be permissible. See Kulko v. Superior Court of California, 436 U.S. 84, 98 S. Ct. 1690, 56 L. Ed. 2d 132 (1978) (treating absence of connection as one of many factors); Hanson v. Denckla, 357 U.S. 235, 251-52, 253-54, 78 S. Ct. 1228, 1238-39, 1240, 2 L. Ed. 2d 1283 (1958). See also Wilkerson v. Fortuna Corp., 554 F.2d 745, 749-50 (5th Cir.), cert. denied, 434 U.S. 939, 98 S. Ct. 430, 54 L. Ed. 2d 299 (1977) (due process requires only minimum connection between state and nonresident defendant when plaintiff's cause of action is unrelated to defendant's activities in the forum). In other words, the connection, if any, between the suit and the contacts is merely another factor in determining whether jurisdiction is allowable

In contrast is Tex.Bus.Corp.Act Ann. art. 8.10. This provides for service on foreign corporations "transacting" business within the state, but does not require the cause of action arise out of the activity within the state. Article 8.10, however, only provides for service in those cases when the state may require a foreign corporation to become licensed to do business. See id. art. 8.01 (admission of foreign corporation)

The single-act contract and tort examples of "doing business" are patterned after the third paradigm in note 4 supra. Section 4 was amended in 1979 to include within "doing business" the act of recruiting Texas residents, directly or through an intermediary located in Texas, for employment inside or outside of Texas. Tex.Rev.Civ.Stat.Ann. art. 2031b, § 4 (Supp.1980)

As the Texas Supreme Court stated, "Such a construction is desirable in that it allows the courts to focus on the constitutional limitations of due process rather than to engage in technical and abstruse attempts to consistently define 'doing business.' " Id. at 762

Plaintiffs also rely on cases that state that the Texas Legislature intended Article 2031b comprehend every situation permitted by due process. See, e. g., Product Promotions, 495 F.2d at 491, 498 n. 27; Jetco, 473 F.2d at 1234; Eyerly Aircraft, 414 F.2d at 599; Atwood Hatcheries, 357 F.2d at 852. These cases, however, proclaimed this maximum statutory reach in the context of what were sufficient contacts, not whether the statute required a nexus. See Product Promotions, 495 F.2d at 491-92 (statement that many, if not most, jurisdictional challenges will turn on constitutional considerations, implying that some challenges will turn on statutory considerations). Some even make the point expressly in the context of what constitutes "doing business" under § 4, just as the Texas Supreme Court did in U-Anchor. See, e. g., Atwood Hatcheries, 357 F.2d at 852. Even if the Legislature intended that the statute in its entirety reach constitutional bounds, that cannot serve to change the unambiguous language of the statute; the Texas Legislature must expressly do so by amendment. There is, moreover, no legislative history on the intended scope of the statute. Comment, The Texas Long-Arm Statute, Article 2031b: A New Process is Due, 30 S.W.L.J. 747, 754 (1976).

The Texas Legislature enacted Article 2031b in 1959, one year after the Hanson decision. It is clear from the face of the statute that it was drafted in light of Hanson and McGee. In McGee jurisdiction was upheld and the cause of action arose out of the slight contacts with the forum; in Hanson jurisdiction was denied and the cause of action was unrelated to the slight contacts. Yet the statute is narrower than due process in two respects. First, even in cases of slight contacts and unrelated causes of action, jurisdiction might be constitutional since it is the nature and quality and not the mere number of contacts that is controlling, though such cases are admittedly rare. See note 4 supra. More importantly, due process does not require the cause of action arise out of forum contacts if the unrelated contacts are substantial and continuous. Id. The better view concerning the intent of the Texas Legislature is that the statute was designed to best approximate due process limits within the shortcomings of drafting specific criteria that provide guidelines to litigants. Cf. Comment, supra, at 770-71 (specific criteria, unlike comprehensive concept of jurisdiction, may provide litigation guidelines but are less likely to include full extent due process permits).

Plaintiffs also argue that the language in § 4 "for the purpose of this Act, and without including other acts that may constitute doing business" encompasses causes of action arising out of contacts unrelated to the forum. That language merely indicates that the contract and tort examples are not an exclusive listing of what constitutes "doing business." See Reul v. Sahara Hotel, 372 F. Supp. 995, 998 (S.D.Tex.1974). It says nothing about whether a defendant is amenable on a cause of action that does not arise out of those "other acts that may constitute doing business."

Some Texas cases clearly understand that the nexus requirement has a statutory source. See Diversified Resources Corp. v. Geodynamics Oil & Gas, Inc., 558 S.W.2d 97 (Tex.Civ.App. Corpus Christi 1977, writ ref'd n.r.e.) (discussing nexus requirement separately from due process analysis, and discussing U-Anchor only in due process context). Other Texas cases, however, do not clearly indicate whether the source of the nexus requirement is statutory or constitutional. See, e. g., U-Anchor, 553 S.W.2d at 762-63; Computer Synergy Corp. v. Business Systems Products, Inc., 582 S.W.2d 573, 576 (Tex.Civ.App. Houston (1st Dist.) 1979, no writ)

This lack of clarity stems in part from O'Brien v. Lanpar, 399 S.W.2d 340 (Tex.1966). The Texas Supreme Court in O'Brien was construing the Illinois Long Arm Statute, which, like the Texas statute, requires a nexus between the contacts and the cause of action. The Supreme Court adopted a three-part test: (1) the nonresident defendant must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) jurisdiction cannot offend due process, given the quality nature and extent of the activity in the forum, the relative convenience of the parties, the benefits and protection of the forum's laws afforded to the parties, and the basic equities of the situation. This test was taken from Tyee Construction Co. v. Dulien Steel Products, Inc., 62 Wash.2d 106, 381 P.2d 245, 251 (Wash.1963).

Although the Washington Supreme Court announced the test as a synthesis of the constitutional tests and the requirements of the Washington statute, which also required the cause of action arise out of the contacts with the forum, the Texas Supreme Court seemed to adopt it as the test for due process. This, at least, is how some decisions viewed O'Brien. See, e. g., Eyerly Aircraft, 414 F.2d at 599 n. 12; Pizza Inn, Inc. v. Lumar, 513 S.W.2d 251, 254 (Tex.Civ.App. Eastland 1974, writ ref'd n.r.e.).

In any event, the Texas lower court decisions after U-Anchor have continued to require a nexus between the cause of action and the contacts with Texas. Wright Waterproofing Co. v. Applied Polymers of America, 602 S.W.2d 67 (Tex.Civ.App. Dallas 1980, writ ref'd n.r.e.); Sherman Gin Co. v. Planter's Gin Co., 599 S.W.2d 348 (Tex.Civ.App. Texarkana 1980, no writ); Rosemont Enterprises, Inc. v. Lummis, 596 S.W.2d 916 (Tex.Civ.App. Houston (14th Dist.) 1980, no writ); Motiograph, Inc. v. Check-Out Systems, Inc., 573 S.W.2d 606 (Tex.Civ.App. Eastland 1978, writ ref'd); Michigan General Corp. v. Mod-U-Kraf Homes, Inc., 582 S.W.2d 594 (Tex.Civ.App. Dallas 1979, writ ref'd n.r.e.). The confusion over the source of that requirement constitutional or statutory cannot dictate a different result. Although due process does not require a nexus, this Court is confident that the Texas Supreme Court would require it solely on the basis of the statute.

The combination of the statutory nexus requirement and U-Anchor's definition of "doing business" eliminate any possible overbreadth of the statute. The nexus requirement eliminates the occurrence of the second and fourth paradigms in note 4 supra. The definition of "doing business" as equivalent to International Shoe's "minimum contacts" ensures that, in the first and third paradigms of note 4 supra, the contacts that satisfy the statute are also sufficient for purposes of due process. By being narrower in one respect and congruent in another with due process limits, the Texas statute can never encompass a situation in which the exercise of personal jurisdiction is unconstitutional

Some Fifth Circuit cases have expressly required a nexus. Wilkerson v. Fortuna Corp., 554 F.2d 745, 747-49 (5th Cir.), cert. denied, 434 U.S. 939, 98 S. Ct. 430, 54 L. Ed. 2d 299 (1977); Product Promotions, 495 F.2d at 492 (held nexus requirement met in discussion of statutory considerations). Accord, Eyerly, 414 F.2d at 599 n. 12, 600-01. Other cases either did not need to reach the issue, e. g. Walker, 583 F.2d 163, or did not discuss it because on the facts of the case the requirement was obviously met. e. g., Oswalt, 616 F.2d 191; Great Western United Corp. v. Kidwell, 577 F.2d 1256 (5th Cir.1978), rev'd on other grounds sub nom. Leroy v. Great Western United Corp., 443 U.S. 173, 99 S. Ct. 2710, 61 L. Ed. 2d 464 (1979); Black v. Acme Markets, Inc., 564 F.2d 681 (5th Cir.1977); Jetco, 473 F.2d 1228; Coulter, 426 F.2d 1315; Atwood Hatcheries, 357 F.2d at 847

See Comment, supra note 7, at 770-73 (proposing that Texas adopt long arm statute providing comprehensive due process concept of jurisdiction rather than specific criteria so as to always include the full reach permitted by due process; proposed statute would not require but only take into account any relation between the claim for relief and the contacts with Texas)

This is not to say that the long arm statute is not to be given its broadest possible construction. This Court is only stating the obvious: the statute should be given the broadest possible construction subject only to the statute's own limitations and those of due process. See Clark Advertising Agency, Inc. v. Tice, 331 F. Supp. 1058, 1059 (N.D.Tex.1971), aff'd on other grounds, 490 F.2d 834 (5th Cir.1974)

See also Rush v. Savchuk, 444 U.S. 320, 100 S. Ct. 571, 577, 62 L. Ed. 2d 516 (1980) (ownership of property in the state, including intangible property like a debt which has legal situs wherever debtor is found, is a contact between the defendant and the forum, though jurisdiction is lacking unless there are sufficient contacts to satisfy due process)

The due process test has been variously stated. In addition to the due process elements of the O'Brien test, see note 8 supra, there is the more general test in Product Promotions : there muse be some minimum contact that results from an affirmative act of the defendant, and it must be fair and reasonable to require the defendant to come into the state to defend the action. 495 F.2d at 494

Purposeful availment, while a necessary condition, is not always a sufficient condition to finding the exercise of personal jurisdiction constitutional. There are two other factors. Product Promotions, 495 F.2d at 497-98; Aftanase v. Economy Baler Co., 343 F.2d 187, 197 (8th Cir. 1965) (Blackmun, J.). The first is any special interest that the state has in exercising jurisdiction. See, e. g., McGee v. International Life Insurance Co., 355 U.S. 220, 223, 78 S. Ct. 199, 201, 2 L. Ed. 2d 223 (1957); Travelers Health Ass'n v. Virginia, 339 U.S. 643, 647-48, 70 S. Ct. 927, 929-30, 94 L. Ed. 1154 (1950); Hearne v. Dow-Badische Chem. Co., 224 F. Supp. 90, 99 (S.D.Tex.1963). This is similar to the most significant relationship test of the Second Restatement, which expressly includes in the determination of the proper choice of tort law not only the location of the tortious act and tortious injury, but also the relevant policies of the forum and the residence of the parties. See Restatement (Second) of Conflict of Laws §§ 6 & 145. Thus, in McGee and Travelers the special interest was in assuring an effective means of redress for residents when insurers refuse to pay claims. Here, as in the conflicts of law field, the interest is in assuring compensation to resident tort victims. See Product Promotions, 495 F.2d at 498 n.27 (general interest in providing residents with forum in which to seek recovery against nonresidents). The forum's interest can serve to enhance the contacts with the forum to a quality that justifies the assertion of jurisdiction. Unlike the purposeful availment element of the due process limit, however, this element is never a sufficient condition by itself. Its presence can only lend weight to the sufficiency of the purposeful contacts

Finally, there is the convenience of the parties in litigating in another state. International Shoe, 326 U.S. at 317, 66 S.Ct. at 158; Product Promotions, 495 F.2d at 498; Hearne, 224 F. Supp. at 99. The relative convenience of the parties is also an enhancing factor but not a sufficient condition by itself. Blount v. Peerless Chemicals, (P.R.), Inc., 316 F.2d 695, 697-98 (2d Cir.), cert. denied sub nom. Colbert v. Peerless Chemicals (P.R.), Inc., 375 U.S. 831, 84 S. Ct. 76, 11 L. Ed. 2d 62 (1963). The factors for application of the doctrine of forum non conveniens are also relevant here. Product Promotions, 495 F.2d at 498 n.29.

World-Wide Volkswagen v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 567, 62 L. Ed. 2d 490 (1980). This notice is not actual but instead reasonable notice by a defendant's deliberate rather than fortuitous contacts with the forum, he should reasonably anticipate, and not be surprised at, being subject to suit there. See id.; Product Promotions, 495 F.2d at 496. Or as stated in Hanson, 357 U.S. at 253, 78 S.Ct. at 1239, there must be more than unilateral activity by a resident plaintiff claiming some relationship with a nonresident defendant

See, e. g., Kulko v. Superior Court of California, 436 U.S. 84, 94, 98 S. Ct. 1690, 1698, 56 L. Ed. 2d 132 (1978) (New York father's acquiescence in daughter's desire to live with mother in California was not purposeful creation of extraterritorial effects). This point is made clearest by the "stream of commerce" cases the defective product finding its way into the forum state and causing injury there. These cases distinguish between purposeful introduction of products into commerce generally or a national distribution system, on the one hand, and patterning the distribution scheme to avoid having the products reach a particular jurisdiction, on the other. See, e. g., World-Wide Volkswagen, 100 S. Ct. at 567; Oswalt, 616 F.2d at 199-200. When some products in the latter case nonetheless reach that state through unexpected or fortuitous circumstances, jurisdiction on that contact is impermissible. See World-Wide Volkswagen, 100 S. Ct. at 567; C. Wright & A. Miller, Federal Practice and Procedure § 1069, at 261 (1969)

Purposeful creation is strongest when the defendant intended the impact to be felt in the forum. See, e. g., Kidwell, 577 F.2d at 1267-68 (Idaho officials blocking Texas corporation's tender offer); Black v. Acme Markets, 564 F.2d at 685 (conspiracy to depress prices); Wilkerson, 554 F.2d at 747 (refusal to deal). It is also present, as in the "stream of commerce" cases, when the defendant can reasonably expect the effect to localize itself in the forum. The expectation is stronger when the defendant establishes or relies on a marketing distribution system that serves the forum than when the defendant merely introduces his products into the general currents of commerce. See Oswalt, 616 F.2d at 201 n.14

The interplay of all three factors is best illustrated by Jetco. The purposeful creation was the release of a product testing report into interstate commerce. The other unrelated contacts with Texas were not very substantial. The report, however, injured the plaintiff's business reputation, creating the substantial effect of giving the plaintiff's competitors' a significant edge in the market. Jurisdiction was upheld.

For example, Beech entered into an $11.1 million subcontract in January 1978 with Bell Helicopter of Fort Worth, Texas, for the production of airframe assemblies, and had produced these for Bell Helicopter continuously since 1967 under contracts exceeding $72 million. Beech also has two employees residing in Texas, one a liaison representative to Bell Helicopter, the other a regional aerospace sales representative. Beech does some national advertising of its products, which necessarily includes Texas. Beech also wholly owns Beech Holdings, Inc., which in turn wholly owns Houston Beechcraft, Inc., a Texas corporation with its principal place of business in Houston, Texas. This latter corporation distributes, sells, and services aircraft manufactured by Beech and other aircraft manufacturers

The only contact with Texas from which the cause of action arises is clearly the Texas plaintiffs' injury since the plane was designed and manufactured in Kansas, sold to a Swiss corporation, and delivered to an Algerian concern before crashing in Algeria

Sonatrach argues that even if it had entered into the contract with decedents' employer, the statutory nexus requirement is not met because the plaintiffs' action sounds in tort while Sonatrach's contact with Texas would be contractual. Put simply, Sonatrach takes the view that a tort suit cannot arise from a contractual contact, and presumably vice versa. Sonatrach is not alone in this view. See Reich v. Signal Oil & Gas Co., 409 F. Supp. 846 (S.D.Tex.1974), aff'd mem., 530 F.2d 974 (5th Cir. 1976). This simplistic view, however, is much too narrow an interpretation of a statute that is to be given the broadest possible construction. See note 12 supra. Logically, there is no reason why a tort cannot grow out of a contractual contact. In a case like this, the contractual contact is a "but for" causative factor for the tort since it brought the parties within tortious "striking distance" of each other. While the relationship between a tort suit and contractual contact is certainly more tenuous than when a tort suit arises from a tort contact, that only goes to whether the contact is by itself sufficient for due process, not whether the suit arises from the contact. In any event, this tort suit also arises from the intangible tortious injury in Texas to the Texas plaintiffs, assuming Sonatrach chartered the plane. Therefore, discovery would still be needed before this Court could say that factually there is a nexus between this suit and either the tort or contract contact, and whether in such a case due process would be satisfied

Sonatrach is now authorized to do business within the State of Texas. By virtue of the theory of consent to jurisdiction implicit in Tex.Bus.Corp. Act Ann. art. 8.10, a foreign corporation consents to amenability to jurisdiction for purposes of all lawsuits brought within the state, whether or not the cause of action relates to activities within the state. Goldman v. Pre-Fab Transit Co., 520 S.W.2d 597 (Tex.Civ.App. Houston (14th Dist.) 1975, no writ). Sonatrach, however, did not become licensed to do business until after service of process was made under Article 2031b. Since personal jurisdiction must exist at the time service is made, subsequent licensing to do business cannot retroactively validate otherwise invalid service of process. Subsequent amenability to suit during the pendency of the litigation, however, apparently gives plaintiffs the option of instituting a new suit and obtaining a new service of process. This would, however, perhaps destroy diversity, see 28 U.S.C. § 1332, a defect that a federal trial or appellate court would be obliged to notice sua sponte.