Filed: Jul. 12, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit IN THE UNITED STATES COURT OF APPEALS FILED FOR THE FIFTH CIRCUIT July 12, 2005 _ Charles R. Fulbruge III Clerk No. 04-60908 Summary Calendar _ Alice F. “Dit” Bryant; Charles Forman, Plaintiffs-Appellants, versus Michael J. Salvi; Salvi, Salvi & Wifler, P.C., Defendants-Appellees. _ Appeal from the United States District Court For the Southern District of Mississippi (No. 3:03-CV-268) _ Before GARZA, DEMOSS, and CLEMENT, Circuit Judges. EDITH BROWN CL
Summary: United States Court of Appeals Fifth Circuit IN THE UNITED STATES COURT OF APPEALS FILED FOR THE FIFTH CIRCUIT July 12, 2005 _ Charles R. Fulbruge III Clerk No. 04-60908 Summary Calendar _ Alice F. “Dit” Bryant; Charles Forman, Plaintiffs-Appellants, versus Michael J. Salvi; Salvi, Salvi & Wifler, P.C., Defendants-Appellees. _ Appeal from the United States District Court For the Southern District of Mississippi (No. 3:03-CV-268) _ Before GARZA, DEMOSS, and CLEMENT, Circuit Judges. EDITH BROWN CLE..
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United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS FILED
FOR THE FIFTH CIRCUIT July 12, 2005
__________________________ Charles R. Fulbruge III
Clerk
No. 04-60908
Summary Calendar
__________________________
Alice F. “Dit” Bryant; Charles Forman,
Plaintiffs-Appellants,
versus
Michael J. Salvi; Salvi, Salvi & Wifler, P.C.,
Defendants-Appellees.
___________________________________________________
Appeal from the United States District Court
For the Southern District of Mississippi
(No. 3:03-CV-268)
___________________________________________________
Before GARZA, DEMOSS, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:*
Alice F. “Dit” Bryant and Charles Forman brought suit against Michael Salvi and Salvi, Salvi
and Wifler, P.C. (“the firm”), alleging that the defendants negligently represented the deceased Mrs.
Bobbie McReynolds. The dist rict court dismissed for lack of personal jurisdiction, and denied the
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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plaintiffs’ motion to reconsider based on newly discovered evidence. We affirm.
I.
In December 1998, Bobbie McReynolds retained attorney Michael Salvi to prepare
McReynolds’s will. Salvi prepared her will and McReynolds later died on December 29, 2000. After
her death, plaintiffs Bryant and Forman, beneficiaries of her estate, filed suit against Salvi and his firm,
alleging negligent representation. The plaintiffs allege that Salvi wrongfully failed to execute a power
of attorney for the plaintiffs’ use; that Salvi interfered with McReynolds’s desire to return to
Mississippi; and that Salvi allowed McReynolds to execute a codicil to amend her will when she
lacked mental competence.
It is undisputed that, at all relevant times, defendant Salvi was a resident of and licensed to
practice law only in Illinois and that the defendant firm was organized and existed under the laws of
Illinois. The defendants did not engage in the practice of law in Mississippi, represent any parties in
Mississippi, or travel to Mississippi on a regular basis. The defendants’ only contacts with Mississippi
were phone calls made by Salvi to an attorney in Mississippi to obtain a title opinion on a piece of
land for the now deceased McReynolds.
This suit was filed in Mississippi state court, and rem oved to federal district court in
Mississippi by the defendants on diversity grounds. The defendants then moved to dismiss for lack
of personal jurisdiction under Rule 12(b)(2) of the Federal Rules of Civil Procedure. The district court
granted the motion, and dismissed all claims against the defendants with prejudice. The plaintiffs then
filed a motion to reconsider based on newly discovered evidence under Rule 60(b)(2). In particular,
they provided evidence to support their claim that the defendants had procured and paid for the
preparation of a title opinion in Mississippi for McReynolds. The district court denied the plaintiffs’
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motion, and the plaintiffs timely appealed.
II.
We review de novo a district court’s dismissal under Rule 12(b)(2) for lack of personal
jurisdiction. Allred v. Moore & Peterson, 117 F.3d 278, 281 (5th Cir. 1997). We review for abuse
of discretion the court’s denial of a Rule 60(b) motion to reconsider. Provident Life & Accident Ins.
Co. v. Goel,
274 F.3d 984, 999 (5th Cir. 2001).
The plaintiff bears the burden of establishing the district court’s personal jurisdiction over a
nonresident who moves for dismissal. See Wilson v. Belin, 20 F.3d 644, 648 (5th Cir. 1994). When,
as here, the district court does not hold a full evidentiary hearing on personal jurisdiction, the
plaintiffs’ burden is met by establishing a prima facie case of personal jurisdiction. The district court
may consider affidavits and other properly obtained evidentiary materials when making its
determination, but shall accept uncontroverted allegations in the complaint as true and shall resolve
all factual conflicts in favor of the plaintiffs. See
id. at 648.
A federal district court sitting in diversity in Mississippi has personal jurisdiction over a
defendant only to the extent permitted a Mississippi state court under the Mississippi long-arm
statute. See Allred, 117 F.3d at 281. In addition, the exercise of jurisdiction under the Mississippi
statute must be consistent with the Due Process clause.
Id.
A.
Under the Mississippi long-arm statute,1 personal jurisdiction over a defendant in a tort claim
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The statute provides:
Any nonresident person, firm, general or limited partnership, or any foreign
or other corporation not qualified under the Constitution and laws of this state
as to doing business herein, who shall make a contract with a resident of this
state to be performed in whole or in part by any party in this state, or who
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is proper if any element of the tort, or any part of any element, takes place in Mississippi. See, e.g.,
Smith v. Temco, 252 So. 2d 212, 216 (Miss. 1971); Anderson v. Sonat Exploration Co.,
523 So. 2d
1024, 1025 (Miss. 1988). The plaintiffs argued that the “injury” element of the alleged torts took
place in Mississippi.
A court has jurisdiction under the long-arm statute if the “injury” took place in Mississippi,
but not if only the consequences of the “injury” were felt in Mississippi. Jobe v. ATR Mktg., 87 F.3d
751, 753 n.2 (5th Cir. 1996). The injury is the “actual invasion of a legally protected interest.” See
Allred, 117 F.3d at 282;
Jobe, 87 F.3d at 753 n.2. The collateral consequences of that invasion can
reach well beyond the actual injury. See
Allred, 117 F.3d at 282;
Jobe, 87 F.3d at 753 (distinguishing
actual injury from collateral consequences such as pain and suffering and economic effects).
Although the consequences in this case may have reached to Mississippi, the alleged injury
occurred in Illinois. Bryant alleges emotional loss as a result of being deprived of the right to care for
her ailing relative. This emotional loss is not the injury, or the actual invasion of the legal right; rather
it is a consequence of the injury, which occurred in Illinois when Salvi failed to help McReynolds
move to Mississippi. Second, the plaintiffs claim economic loss as the result of the codicil signed by
McReynolds when she lacked mental competence. These economic losses, also, are consequences
of the “injury” which act ually occurred in Illinois. All aspects of the codicil were prepared and
executed in Illinois. The resulting damage, Bryant’s and Forman’s economic loss, may have been felt
shall commit a tort in whole or in part in this state against a resident or
nonresident of this state, or who shall do any business or perform any
character of work or service in this state, shall by such act or acts be deemed
to be doing business in Mississippi and shall thereby be subjected to the
jurisdiction of the courts of this state.
Miss. Code Ann. § 13-3-57 (West 2005) (emphasis added).
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in Mississippi, but the invasion of the legal right occurred in Illinois.
The plaintiffs fail to allege that any other element of the tort occurred, in whole or in part, in
Mississippi. Therefore, we conclude that the district court properly held that Mississippi’s long-arm
statute does not provide for personal jurisdiction over the defendants.
B.
Mississippi’s long-arm statute extends as far as the constitutional limits of due process, but
no farther. Even if we found that the injury occurred in part in Mississippi, we must inquire into
whether the exercise of jurisdiction comports with due process. Under the Due Process clause, a
court can constitutionally exercise personal jurisdiction over a defendant if the defendant has
“minimum contacts” with the forum state, and the exercise of jurisdiction does not “offend traditional
notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)
(citations omitted).
Under the “minimum contacts” analysis, personal jurisdiction can be either general or specific.
General jurisdiction exists if the defendant engaged in “substantial, continuous and systematic”
activities within Mississippi. See Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 446 (1952);
Wilson v. Belin,
20 F.3d 644, 647 (5th Cir. 1994). If general jurisdiction existed, Mississippi could
exercise jurisdiction over any cause of action, even if unrelated to the defendants’ activities in
Mississippi. See
Perkins, 342 U.S. at 446. The plaintiffs do not contend, nor is there evidence to
support the conclusion, that the district court had general jurisdiction over the defendants.
Specific personal jurisdiction over a defendant is for a particular cause of action. It exists
where the defendant’s contacts with the forum state arise from, or are directly related to, the cause
of action. Wilson, 20 F.3d at 647. Specific personal jurisdiction requires a showing that: (1) the out-
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of-state defendant purposely availed itself of the privilege of conducting activities within the forum
state, invoking the benefits and protections of local law; (2) the plaintiff’s cause of action arises out
of or results from the defendant’s forum-related contacts; and (3) the court’s exercise of personal
jurisdiction in the particular case comports with “fair play and substantial justice.” See Revell v.
Lidov, 317 F.3d 467, 470 (5th Cir. 2000);
Allred, 117 F.3d at 285 (5th Cir. 1997).
The plaintiffs claim that the defendants “purposefully availed” themselves of the benefits and
protections of Mississippi law by calling a Mississippi law firm, procuring a title opinion from that
law firm regarding a piece of land purported to be part of McReynolds’s estate, and paying a fee for
the title opinion. However, these contacts, even if sufficient to establish “purposeful availment,” are
unrelated to the plaintiffs’ claims of negligence. They are insufficient to establish specific personal
jurisdiction. The plaintiffs’ claims center around different events which took place in Illinois. Namely,
the plaintiffs claim that the defendants failed to execute McReynolds’s wishes with regard to moving
to Mississippi and with regard to a codicil to McReynolds’s will. These negligent failures to act are
unrelated to the procurement of a title opinion in Mississippi.
In addition, the exercise of jurisdiction in this case would not comport with “fair play and
substantial justice.” This “reasonableness” requirement may defeat jurisdiction even if the defendant
has purposefully engaged in forum-related activities. See Asahi Metal Indus. Co. v. Sup. Ct., 480 U.S.
102, 115 (1987). We consider factors such as the burdens on the defendants, the interests of the
forum st ate, the plaintiffs’ interests in obtaining relief, and judicial efficiency. See World-Wide
Volkswagen v. Woodson,
444 U.S. 286, 292 (1980);
Allred, 117 F.3d at 286 n.7. These factors weigh
against finding jurisdiction in Mississippi. The defendants reside in Illinois; the relevant evidence
regarding these claims is located in Illinois; Illinois has a substantial interest in protecting the estates
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of its citizens; and t he plaintiffs could have obtained relief by filing their claim in an Illinois court.
Therefore, we find that the exercise of jurisdiction in Mississippi would not be reasonable.
III.
To succeed on a motion to reconsider based on newly discovered evidence, the movant must
demonstrate that the evidence is material, controlling, and clearly would have produced a different
result than the original judgment. See Goldstein v. MCI WorldCom, 340 F.3d 238, 257 (5th Cir.
2003) (citing Provident Life & Accident Ins.
Co., 274 F.3d at 999). The evidence introduced to
support the plaintiffs’ Rule 60(b) motion to reconsider merely confirmed prior allegations made by
the plaintiff that the defendant had called and procured a title opinion from a Mississippi law firm. It
did not introduce additional evidence that the tort took place in Mississippi or that the defendants had
additional contacts with Mississippi. The additional evidence, not materially different from what was
already before the district court, would not have produced a different result. The district court did
not abuse its discretion in denying the motion to reconsider.
CONCLUSION
We hold that the district court lacks authority under both the Mississippi long-arm statute,
Miss. Ann. Code § 13-3-57, and the Due Process clause of the Fourteenth Amendment of the United
States Constitution to exercise personal jurisdiction over the defendants. Therefore the district court’s
dismissal for lack of jurisdiction pursuant to Rule 12(b)(2) and denial of the plaintiffs’ Rule 60(b)
motion to reconsider are AFFIRMED.
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