Spelsberg v. Sweeney

• Decision Date: 29 May 1981
• Docket Number: Civ. A. No. CV180-212.
• Citation: 514 F. Supp. 622
• Parties: Walter T. SPELSBERG, Plaintiff, v. LaVerne SWEENEY, Defendant.
• Court: U.S. District Court — Southern District of Georgia

514 F. Supp. 622

Walter T. SPELSBERG, Plaintiff, v. LaVerne SWEENEY, Defendant.

Civ. A. No. CV180-212.

United States District Court, S. D. Georgia, Augusta Division.

May 29, 1981.

DeWitt R. Dent, Augusta, Ga., for plaintiff.

Douglas D. Batchelor, Jr., Augusta, Ga., for defendant.

ORDER

BOWEN, District Judge.

In this action sounding in tort for defamation of character, plaintiff avers that:

Defendant did on or about 29 July 1980 falsely and maliciously make, and publish in this jurisdiction in writing a defamatory allegation that Plaintiff was "... a closet-homosexual ...," thereby tending to injure his reputation and exposing him to public hatred, contempt or ridicule.

Presently before the Court is defendant's application for preliminary hearing on the following defenses: (1) a Rule 12(b)(2) defense that the Court lacks in personam jurisdiction over defendant; and (2) a Rule 12(b)(5) defense that service of process was insufficient. In lieu of a hearing, the Court may resolve these matters upon consideration of the pertinent affidavits and exhibits on file. See Edwards v. Associated Press, 512 F.2d 258, 268 n.8 (5th Cir. 1975). A review of these materials reveals the following facts.

Defendant is an attorney at law, licensed to practice in the State of West Virginia with his office in West Virginia. Another West Virginia attorney referred a Mrs. Gerry Tilghman, plaintiff's former wife, to defendant to represent her in the collection of past due amounts from plaintiff. Defendant undertook this representation and obtained a judgment against plaintiff in Randolph County, West Virginia. Thereafter, plaintiff moved to Georgia, and defendant contacted an attorney in Augusta, Georgia, Vincent M. Davison, Jr., to represent Mrs. Tilghman in seeking to recover on the West Virginia judgment. Defendant was not involved with Mrs. Tilghman's subsequent legal representation in Georgia.

By letter dated May 20, 1980, (following the aforementioned events) one Captain Chuck R. Pardue, Office of the Staff Judge Advocate, United States Army Center Fort Gordon, informed defendant of a proposal to settle the litigation between plaintiff and his former wife. Defendant responded to Captain Pardue by letter dated June 18, 1980, stating that Mrs. Tilghman was unwilling to accept the settlement proposal and that, in the future, Captain Pardue should direct all correspondence to Mrs. Tilghman's Georgia lawyer. The letter also states in pertinent part: "Mrs. Tilghman advises that ... she ... was (unbeknownst to her) living with a closet-homosexual." A copy of this letter was sent to Mrs. Tilghman's attorney in Augusta, Georgia, on July 29, 1980.

According to defendant's uncontroverted affidavit, defendant was involved in a matter that was connected with Georgia on only one other occasion: referral of a West Virginia resident to a Georgia attorney regarding collection of a Georgia judgment against a Georgia resident. This matter was unrelated to the litigation involving plaintiff. It appears that defendant has had no other contacts with the State of Georgia.

In deciding the personal jurisdiction issue raised by defendant in this diversity action, the Court is bound by the Georgia long-arm statute and state appellate decisions interpreting the statute. See Gold Kist, Inc. v. Baskin-Robbins Ice Cream, 623 F.2d 375, 377 (5th Cir. 1980); Attwell v. LaSalle National Bank, 607 F.2d 1157 (5th Cir. 1979). The Georgia long-arm statute provides:

A court of this State may exercise personal jurisdiction over any nonresident, or his executor or administrator, as to a cause of action arising from any of the acts, omissions, ownership, use or possession enumerated in this section, in the same manner as if he were a resident of the State, if in person or through an agent, he:

(a) Transacts any business within this State; or

(b) Commits a tortious act or omission within this State, except as to a cause of action for defamation of character arising from the act; or

(c) Commits a tortious injury in this State caused by an act or omission outside this State, if the tortfeasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this State ....

Ga.Code Ann. § 24-113.1 (1971). Georgia appellate courts construing this statute are mindful "that the Long Arm Statute contemplates that jurisdiction shall be exercised over non-resident parties to the maximum extent permitted by procedural due process." Coe & Payne Co. v. Wood-Mosaic Corp., 230 Ga. 58, 60, 195 S.E.2d 399 (1974).

Defendant argues that the defamation exemption of subsection (b) proscribes the exercise of extraterritorial in personam jurisdiction in this action. Section 24-113.1(b) "confers jurisdiction over a nonresident who purposefully conducts some activity in or with Georgia ... and as a result of that activity a Georgia resident suffers injury here even though the actual act or omission occurred outside this forum."¹Shellenberger v. Tanner, 138 Ga. App. 399, 410, 227 S.E.2d 266 (1976). See Clarkson Power Flow, Inc. v. Thompson, 244 Ga. 300, 302, 260 S.E.2d 9 (1979) ("There is no essential difference between subsections (b) and (c)."); Coe & Payne Co. v. Wood-Mosaic Corp., 230 Ga. 58, 61, 195 S.E.2d 399 (1973) ("Subsection (b) ... confers jurisdiction in the situation where the negligence occurred outside the State of Georgia and the damage resulting therefrom occurred inside the State of Georgia."). In a defamation action, the "tortious act" occurs in the state where the alleged libelous materials is distributed. Process Control Corp. v. Witherup Fabrication & Erection, Inc., 439 F.Supp. 1284, 1286 n.1 (N.D.Ga.1977); see Ga.Code Ann. § 105-701 (1968). Here, the alleged libelous letter was delivered and circulated in State of Georgia; thus, the "tortious act" of defamation occurred in Georgia. Clearly, then, under the express exceptive language of subsection (b), defendant's act of distributing the two letters at issue in Georgia may not serve as a basis for the exercise of personal jurisdiction over the nonresident defendant.

While the defamatory act itself may not confer in personam jurisdiction, a non-resident defendant in a defamation action may nonetheless be subject to process if other sufficient minimum contacts with the forum exist. As the Fifth Circuit commented in Attwell, supra: "For the tortious conduct to constitute a basis for the exercise of personal jurisdiction the conduct vesting jurisdiction must be an act or omission separate and apart from the ... alleged defamatory behavior." 607 F.2d at 1161; See Process Control Corp., 439 F.Supp. at 1287 ("Georgia courts may exercise personal jurisdiction over any nonresident who commits a tortious act or omission within Georgia, except a defamation action, in which case the nonresident must also have sufficient minimum contacts with Georgia other than the contacts which arise from the acts constituting the defamation."). Accordingly, the pertinent inquiry in this case is whether the nonresident defendant "has established `minimum contacts' in this state so that the exercise of jurisdiction is consistent with `traditional notions of fair play and substantial justice'." Clarkson Power Flow, Inc., 244 Ga. at 301, 260 S.E.2d 9.

Excluding the two letters distributed in Georgia, the only other contacts defendant has had with Georgia is the referral of two West Virginia residents to Georgia attorneys for representation in two distinct Georgia legal matters. While these contacts are clearly minimal, they may nevertheless present sufficient "minimum contacts," depending on "whether the `quality and nature' of the defendant's activity is such that is `reasonable' and `fair' to require him to conduct his defense in this state." Kulko v. California Superior Court, 436 U.S. 84, 92, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132 (1978).

The Georgia long-arm statute prescribes certain contacts which are legislatively deemed adequate "minimum contacts" to confer extraterritorial jurisdiction. Subsection (a) confers in personam jurisdiction if the nonresident "transacts any business within this state." Assuming this jurisdiction generating event applies to actions in tort, and not just actions in contract,² personal jurisdiction may exist under subsection (a):

if the nonresident has purposefully done some act or consummated some transaction in this state, if the cause of action arises from or is connected with such act or transaction, and if the exercise of jurisdiction by the courts of this state does not offend traditional fairness and substantial justice.

Davis Metals, Inc. v. Allen, 230 Ga. 623, 625, 198 S.E.2d 285 (1973). Additionally, subsection (c) confers personal jurisdiction over a nonresident defendant tortfeasor who causes tortious injury within the state by an act or omission outside the state, if he: "regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this State. See note 1, supra.

Clearly, defendant's referral of two West Virginia residents to two Georgia attorneys does not constitute a regular solicitation of business or persistent course of conduct, etc., as prescribed in subsection (c). Furthermore, this limited connection with the State of Georgia cannot be termed a "transaction of business" within the state. In referring two persons to Georgia attorneys concerning Georgia legal matters and then ceasing any further involvement in those matters, defendant did not "purposefully avail himself of the privilege of conducting activities within the forum State of Georgia." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958). See also Shellenberger v. Tanner, 138 Ga.App. at 409, 227 S.E.2d 266. Moreover, one of defendant's two "contacts" is completely unrelated to p...