Estate of Portnoy v. Cessna Aircraft Co.

Decision Date20 April 1984
Docket NumberNo. 82-4453,82-4453
Citation730 F.2d 286
PartiesThe ESTATE OF David L. PORTNOY, Deceased, Jerri Bridges, Administratrix, Plaintiff-Appellant, v. CESSNA AIRCRAFT COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Hopkins, Logan & Vaughn, Floyd J. Logan, Gulfport, Miss., for plaintiff-appellant.

Watkins & Eager, Thomas C. Gerity, Jackson, Miss., for defendant-appellee.

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

Before CLARK, Chief Judge, GARZA and JOLLY, Circuit Judges.

PER CURIAM:

The estate of David L. Portnoy appeals the district court's dismissal of its diversity suit for lack of personal jurisdiction. The district court held that the personal representative of the estate of a non-resident is not entitled to invoke the benefit of the Mississippi long-arm statute to effect service of process, and that, in any event, the defendant, Cessna Aircraft Company, does not have sufficient contacts with the State of Mississippi, so that subjecting it to a lawsuit there violates its due process rights. Because we affirm the district court's decision on the basis of our reading of the applicable Mississippi statutes, including the long-arm statute, we do not reach the due process issue.

I.

The defendant, Cessna Aircraft Company, is a Kansas corporation with its principal place of business in Wichita. The plaintiff's decedent, David L. Portnoy, was a twenty-five-year-old Pennsylvania resident and a staff sergeant in the Pennsylvania Air National Guard. In November of 1976, while participating in a training mission, the Cessna plane he was flying crashed in the waters near Bay St. Louis, Mississippi. All heirs and beneficiaries of Portnoy's estate in 1976 were, and still are, Pennsylvania residents.

The Gulfport, Mississippi, law firm of Hopkins, Logan and Vaughn represented Portnoy's parents before this litigation began. At the request of one of the partners, a secretary for the firm, Jerri Bridges, agreed to serve as administratrix of the estate. In February of 1982 a state chancery court duly appointed her to serve in that capacity. In April of 1982 she filed this diversity action in the United States District Court for the Southern District of Mississippi, seeking damages from Cessna under theories of strict liability and breach of warranty.

Because Cessna is not registered to do business in Mississippi, the plaintiff effected service of process by serving the Secretary of State of the State of Mississippi, pursuant to MISS.CODE ANN. 13-3-57 (1972 & Supp.), the Mississippi long-arm statute. Cessna moved for dismissal for lack of personal jurisdiction. The district court granted Cessna's motion. We affirm the district court because the plain wording of the applicable Mississippi statutes creating the state cause of action and its mechanisms of enforcement, as well as the case law interpreting those statutes, do not allow the administratrix to obtain personal jurisdiction over Cessna.

II.

Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) requires us to apply state substantive law to this suit. Unfortunately, no state statute or case unequivocally disposes of the issues presented. Consequently, we begin our analysis by looking to the applicable statutes.

The Mississippi wrongful death statute that creates the plaintiff's substantive cause of action allows the personal representative of a deceased person to bring an action for damages caused by "articles or commodities intended for human consumption" that, had death not ensued, would "have entitled the person injured or made ill or damaged thereby, to maintain an action and recover damages in respect thereof." 1 Similarly, the Mississippi statute that defines the kinds of actions the executor of an estate may prosecute provides that:

Executors, administrators, and temporary administrators may commence and prosecute any personal action whatever, at law or in equity, which the testator or intestate might have commenced and prosecuted. They shall also be liable to be sued in any court in any personal action which might have been maintained against the deceased.

MISS.CODE ANN. Sec. 91-7-233 (1972) (emphasis added).

Mississippi courts have interpreted these statutes as creating two distinct causes of action, one in favor of the decedent's estate and maintainable only by the administrator or executor, and one in favor of the decedent's survivors and maintainable by any personal representative. An executor or administrator may prosecute both causes of action in one suit provided that he pleads them in separate counts. Thornton v. Insurance Company of North America, 287 So.2d 262 (Miss.1973). Notwithstanding the fact that the causes of action accrue to the estate and to the survivors, however, the statutes by their plain terms allow the person who prosecutes the action the same rights as the decedent would have had. Only if the decedent "could maintain an action and recover damages," or "might have commenced and prosecuted" the suit will Mississippi law permit the plaintiff in the wrongful death action to proceed. The plaintiff, then, stands in the shoes of his decedent. See Rainey v. Horn, 221 Miss. 269, 72 So.2d 434, 436-38 (1954) (wrongful death statute). Cf. Scott v. Munn, 245 Miss. 120, 146 So.2d 564 (1962) (personal representative cannot prosecute a cause of action for loss of consortium if decedent could not).

The Mississippi long-arm statute in effect at the time of Portnoy's accident deems nonresidents "who shall commit a tort in whole or in part in this state against a resident of this state" to be doing business in Mississippi for the purposes of allowing a plaintiff to obtain personal jurisdiction over them. 2 Thus, the statute, by its own terms, operates only in favor of Mississippi residents. Further, cases decided pursuant to the statute also hold that the statute is not available to nonresidents. E.g., C.H. Leavell & Co. v. Doster, 211 So.2d 813 (Miss.1968). See also American International Pictures, Inc. v. Morgan, 371 F.Supp. 528, 532 (N.D.Miss.1974). In their restrictive interpretation of the long-arm statute, courts rely not only on the clear wording of the statute, but also on the proposition that Mississippi has no obligation to open the doors of its courts to allow residents of other states to bring actions against nonresident defendants. E.g., McAlpin v. James McKoane Enterprises, Inc., 395 F.Supp. 937, 941 (N.D.Miss.1975).

Thus, our review of the long-arm statute together with the wrongful death statute and the executors' cause of action statute reveals that Jerri Bridges did not obtain personal jurisdiction over Cessna. Because the long-arm statute was not available to nonresidents, neither Portnoy nor his survivors, all of whom were or are Pennsylvania residents, could have prosecuted a cause of action for wrongful death in Mississippi courts against Cessna. Because Jerri Bridges has only those rights that the decedent would have had if he had survived the accident, she likewise may not prosecute an action for wrongful death, either on behalf of the estate or on behalf of the survivors. 3 That she is a resident of Mississippi is irrelevant, because her substantive rights are the same as the decedents regardless of her own residency.

III.

Portnoy's estate argues vigorously that Jerri Bridges, a Mississippi resident, is the "real party in interest" against whom the tort was committed, and that Portnoy's status as a Pennsylvania resident is irrelevant. We are not convinced.

If Cessna committed a tort at all, it did so not against the estate, but against Portnoy, a non-resident. As this court recognized in Prejean v. Sonatrach, Inc., 652 F.2d 1260, 1270 (5th Cir.1981), a tort occurs when and where the actual injury or accident takes place, and not at the place of the economic consequences of that injury. Thus, the tort did not occur "against a resident of this state" as the long-arm statute requires.

Additionally, the estate relies heavily on Federal Rule of Civil Procedure 17(a), which provides that the executor or administrator of an estate is the real party in interest for purposes of prosecuting an action in federal court. Rule 17(a), however, cannot expand the jurisdiction of federal courts, and the Erie doctrine, which makes state substantive law applicable to this action, places substantive limitations on the application of Rule 17(a). Fed.R.Civ.P. 82.

As explained, state substantive law requires us to hold as a matter of statutory construction that the estate did not obtain personal jurisdiction over Cessna. Further, as this court previously noted, "it is well established that under Mississippi law the administrator is not an interested party in a wrongful death action, even though he is a 'real party in interest' within the meaning of Rule 17 of the Federal Rules for the purposes of determining federal [diversity] jurisdiction." Bush v. Carpenter Brothers, Inc., 447 F.2d 707, 711 (5th Cir.1971) (...

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