117 F.3d 278 (5th Cir. 1997), 96-60083, Allred v. Moore & Peterson

Docket Nº:96-60083.
Citation:117 F.3d 278
Party Name:Michael S. ALLRED, Plaintiff-Appellant, v. MOORE & PETERSON, A Professional Corporation; Gaynell C. Methvin; Mark David; Paul R. Aiello; Camille F. Gravel, Jr., Individual Member of Gravel Brady & Berrigan, a Partnership, Defendants-Appellees.
Case Date:July 21, 1997
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 278

117 F.3d 278 (5th Cir. 1997)

Michael S. ALLRED, Plaintiff-Appellant,


MOORE & PETERSON, A Professional Corporation; Gaynell C.

Methvin; Mark David; Paul R. Aiello; Camille F. Gravel,

Jr., Individual Member of Gravel Brady & Berrigan, a

Partnership, Defendants-Appellees.

No. 96-60083.

United States Court of Appeals, Fifth Circuit

July 21, 1997

Page 279

Kenneth A. Rutherford, Richard Lee Jones, Alston, Rutherford & Van Slyke, Jackson, MS, for Plaintiff-Appellant.

Harry Alston Johnson, III, Michael David Ferachi, Phelps Dunbar, Baton Route, LA, for Camille F. Gravel, Jr.

Daniel P. Callahan, Dallas, TX, for Moore & Peterson, A Professional Corporation, Gaynell C. Methvin, Mark David, Paul A. Aiello.

Appeal from the United States District Court for the Southern District of Mississippi.

Before GARWOOD, DAVIS and STEWART, Circuit Judges.

GARWOOD, Circuit Judge:

The issue presented on this appeal is whether the United States District Court for the Southern District of Mississippi had personal jurisdiction over five of the defendants in this diversity abuse of process/malicious prosecution case. The district court dismissed the case on the grounds that it lacked personal jurisdiction over all the defendants, Moore & Peterson, P.C., a Dallas, Texas law firm, and Paul R. Aiello, Mark David, and Gaynell C. Methvin, Texas residents and former members of Moore & Peterson (collectively the Texas defendants); Gravel, Brady & Berrigan, an Alexandria, Louisiana law firm; James J. Brady, Michael S. Baer, III, Helen G. Berrigan, Camille F. Gravel, Jr., and Charles G. Gravel, Louisiana residents and individual members of Gravel, Brady & Berrigan; and Texas resident Charles C.

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Rush. Fed.R.Civ.P. 12(b)(2). Plaintiff-appellant Michael S. Allred appealed only the district court's dismissal of appellees the Texas defendants and defendant-appellee Camille F. Gravel, Jr. We affirm the district court's dismissal of the appellees on the grounds that the district court lacked personal jurisdiction.

Facts and Proceedings Below

Plaintiff-appellant Allred is a Mississippi lawyer who filed this suit in state court in Mississippi alleging that various Texas and Louisiana attorneys, during the course of their representation of Charles C. Rush in a suit against Rush pending in the United States District Court for the Middle District of Louisiana, brought a frivolous third-party complaint against Allred, who, at the time, was representing the Louisiana Insurance Commissioner in his capacity as a party in the referenced suit against Rush.

As alleged by Allred, the underlying facts of the current dispute go back almost twenty years to his representation of American Public Life Insurance Company (APLIC) in 1977 in a suit against Richard O. Rush, Charles C. Rush, and Southern Educators Life Insurance Company (SELIC). According to Allred, this 1977 Mississippi lawsuit involved alleged violations of securities laws and breach of fiduciary duties in the course of dealings between APLIC and SELIC. The parties eventually settled in December 1978 and executed a "Mutual Release and Covenant Not To Sue" in February 1979.

In October 1984, the Insurance Commissioner of Louisiana retained Allred to file suit against Charles C. Rush, among others, on behalf of SELIC, which had been placed in rehabilitation, the Commissioner being the Rehabilitator, and renamed First American Life Insurance Company (FALIC). Allred filed suit in the United States District Court for the Middle District of Louisiana on May 14, 1985, naming numerous defendants. 1 The Louisiana suit charged Rush with fraud, conversion, and breach of fiduciary duty. In April 1986, the defendants-appellees, as attorneys for Rush, filed in the Louisiana suit a third-party complaint naming Rush as third-party plaintiff and APLIC and Allred as third party defendants, alleging breach of the 1979 covenant not to sue, and asserting contribution and indemnification claims for any judgment rendered against Rush. Process on Allred and interrogatories to him were served by being sent certified mail from Dallas, Texas, to Allred's Jackson, Mississippi law offices. Allred subsequently either withdrew or was terminated from his role as attorney for the Louisiana Insurance Commissioner as Rehabilitator of FALIC in the Louisiana suit, allegedly due to the conflict of interest caused by Rush's third-party complaint. The third-party complaint was subsequently dismissed with prejudice when, pursuant to a settlement agreement, Rush assigned the third-party claim to the Rehabilitator of FALIC.

On August 20, 1993, Allred filed the instant suit in the Circuit Court for the First Judicial District of Hinds County, Mississippi, alleging malicious prosecution and abuse of process against Moore & Peterson; the former individual members of Moore & Peterson who represented Rush; Gravel, Brady & Berrigan, Rush's local counsel; and the individual members of Gravel, Brady & Berrigan. 2 Allred's complaint alleged the facts set forth above and asserted that he suffered economic and emotional injury as a result of the third-party claim; specifically, a loss of business income, opportunity, and reputation. The defendants were served by certified mail delivered to them in Texas and Louisiana, respectively. The defendants timely removed the case to the district court below on the basis of diversity of citizenship. 28 U.S.C. § 1332.

On October 8, 1993, the Texas defendants filed a motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) on the ground that service of process by mail on Allred in Mississippi did not establish sufficient

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contact with Mississippi to allow the district court to exercise personal jurisdiction over the defendants, who were citizens of Texas. On January 14, 1994, defendants Gravel, Brady & Berrigan and its individual members (including defendant-appellee Camille F. Gravel, Jr.), citizens of Louisiana, filed a similar motion to dismiss. The district court heard oral arguments on February 24, 1994 and on March 3, 1994, announced its intention to rule in favor of the defendants on the motions to dismiss. Allred, on September 26, 1994, filed a motion for leave to amend his complaint to add a conspiracy claim pursuant to Rule 15(a). On September 30, 1994, without ruling on Allred's motion to amend, the district court issued a final order of dismissal for lack of personal jurisdiction. 3 Allred filed a timely "Motion To Reconsider" pursuant to Rules 59 and 60 on the grounds that the district court failed to consider his pending motion to amend. The district court, construing Allred's motion as a motion to alter or amend the judgment under Rule 59(e), found that the amended complaint did not allege that any conspiratorial events took place in Mississippi and that the amended complaint relied on precisely the same basis as the earlier complaint--namely, that the service of process by certified mail in Mississippi was sufficient to establish personal jurisdiction. Accordingly, the district court denied Allred's Rule 59(e) motion on January 9, 1996. Allred filed a timely notice of appeal. 4


Allred's sole contention on appeal is that the district court erred in holding it lacked in personam jurisdiction over the Texas defendants and Camille F. Gravel, Jr.

A district court's dismissal for want of personal jurisdiction pursuant to Rule 12(b)(2) is subject to de novo review. Jobe v. ATR Mktg., Inc., 87 F.3d 751, 753 (5th Cir.1996); Wilson v. Belin, 20 F.3d 644, 647-48 (5th Cir.), cert. denied, 513 U.S. 930, 115 S.Ct. 322, 130 L.Ed.2d 282 (1994). "When a nonresident defendant presents a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing the district court's jurisdiction over the nonresident. The court may determine the jurisdictional issue by receiving affidavits, interrogatories, depositions, oral testimony, or any combination of the recognized methods of discovery." Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir.1985) (citing Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1165 (5th Cir.1985); Washington v. Norton Mfrg. Inc., 588 F.2d 441, 443 (5th Cir.), cert. denied, 442 U.S. 942, 99 S.Ct. 2886, 61 L.Ed.2d 313 (1979)); see also Jobe, 87 F.3d at 753.

A federal district court sitting in diversity may exercise personal jurisdiction only to the extent permitted a state court under applicable state law. Cycles, Ltd. v. W.J. Digby, Inc., 889 F.2d 612, 616 (5th Cir.1989); Rittenhouse v. Mabry, 832 F.2d 1380, 1382 (5th Cir.1987). "The state court or federal court sitting in diversity may assert jurisdiction if: (1) the state's long-arm statute applies, as interpreted by the state's courts; and (2) if due process is satisfied under the fourteenth amendment to the United States Constitution." Cycles, 889 F.2d at 616 (citing DeMelo v. Toche Marine...

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