Applewhite v. Metro Aviation, Inc.

• Decision Date: 16 June 1989
• Docket Number: No. 88-4885,88-4885
• Citation: 875 F.2d 491
• Parties: Kathy APPLEWHITE, Administrator of the Estate of Mark C. Applewhite, Plaintiff-Appellant, v. METRO AVIATION, INC., et al., Defendants, Alabama Power Company, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 491

875 F.2d 491

Kathy APPLEWHITE, Administrator of the Estate of Mark C Applewhite, Plaintiff-Appellant, v. METRO AVIATION, INC., et al., Defendants Alabama Power Company, Defendant-Appellee.

No. 88-4885

Summary Calendar.

United States Court of Appeals Fifth Circuit.

June 16, 1989.

Michael S. Allred, Satterfield & Allred, Jackson, Miss., for plaintiff-appellant.

Natie P. Caraway, Robert P. Wise, Jackson, Miss., for defendant-appellee.

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

Before POLITZ, JOHNSON and JOLLY, Circuit Judges.

PER CURIAM:

The question in this case is whether a Mississippi district court properly dismissed for lack of personal jurisdiction, a lawsuit against Alabama Power Company arising out of a helicopter accident that occurred completely within the State of Alabama, on the grounds that Alabama Power had not purposefully availed itself of the benefits and protections of the laws of Mississippi and so had not subjected itself to in personam jurisdiction in Mississippi. The plaintiff's complaint alleges that Alabama Powers' negligent maintenance of its intrastate power lines was a proximate cause of plaintiff's decedent's death, which resulted after a helicopter in which he was travelling, owned by Metro Aviation, Inc. of Louisiana, struck one of Alabama Powers' power lines crossing the Black Warrior River near Peterson, Alabama.

In reviewing the district court opinion, we are convinced that the court fully addressed each of the points Applewhite raises on appeal. We find ourselves in agreement with the district court's analysis, and, in short, do not believe that we are able to improve on what the district court said. As to Applewhite's specific contentions that the district court minimized the extent of Alabama Powers' contacts within the State of Mississippi, and failed to assign proper weight to those contacts as a whole, we find this not to be the case. We therefore affirm on the basis of the district court opinion which is attached hereto.

AFFIRMED.

APPENDIX A

Kathy Applewhite, Plaintiff,

v.

Metro Aviation, Inc. and Alabama Power Company, Defendants.

Civ. A. No. J88-0107(L).

United States District Court,

Southern District of Mississippi,

Jackson Division.

MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

This cause is before the court on the motion of defendant Alabama Power Company to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. Plaintiff Kathy Applewhite timely responded to the motion and the court has considered the memoranda of authorities together with attachments submitted by the parties.

Kathy Applewhite brought this wrongful death action following the death of her husband, Mark C. Applewhite, who was killed on June 2, 1986 when a helicopter in which he was a passenger, en route from Tuscaloosa, Alabama to Jackson, Mississippi, crashed into the Black Warrior River near Peterson, Alabama. According to the complaint, the helicopter was owned by defendant Metro Aviation, Inc. and crashed when it struck one of Alabama Power Company's power lines which crossed the Black Warrior River. Plaintiff's complaint charges that the failure of Alabama Power Company to properly control and maintain its power lines across the Black Warrior River proximately caused the death of Mark C. Applewhite.

In this diversity action, ¹ defendant Alabama Power contends that it is not subject to the jurisdiction of this court as it is not qualified to do business, has not done and is not doing any business in Mississippi and has no contacts with Mississippi which would support this court's exercise of in personam jurisdiction over it. It is well settled that in a diversity action, a federal district court may exercise jurisdiction over a nonresident only to the extent that a court of the state could properly exercise jurisdiction. Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1165 (5th Cir.1985); DeMelo v. Toche Marine, Inc., 711 F.2d 1260, 1264 (5th Cir.1983). Moreover, when challenge is made to the propriety of the court's exercise of jurisdiction, the burden is on the plaintiff to establish that jurisdiction is proper under applicable law. Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir.1985).

In its initial filing, Alabama Power urged that it is not amenable to service of process under the terms of Mississippi's long-arm statute, Miss.Code Ann. Sec. 13-3-57 (1972 & Supp.1988), and further that it is not subject to the court's jurisdiction since it is not doing business in Mississippi and because there is no direct nexus between plaintiff's cause of action and any business which Alabama Power may be doing in this state. However, Alabama Power now concedes that it was properly served, not pursuant to the long-arm statute, but pursuant to the service by mail provisions of Federal Rule of Civil Procedure 4(c)(2)(C)(ii). ² Since proper service of process is not synonymous with amenability to an assertion of personal jurisdiction, the fact that service was effected does not resolve the jurisdictional issue raised by Alabama Power. See Omni Capital Int'l v. Rudolph Wolff & Co., Ltd., 484 U.S. 97, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987) (amenability to service of process is prerequisite to court's exercise of personal jurisdiction). The question remains, therefore, whether plaintiff has demonstrated a sufficient basis for this court's exercise of personal jurisdiction over Alabama Power.

In order for a nonresident corporation to be subject to personal jurisdiction under the Mississippi long-arm statute, three requirements must be satisfied: it must purposefully do some act or consummate some transaction in the forum state; the cause of action must arise from, or be connected with, such acts or transactions; and the requirements of due process must be satisfied. Collins v. Truck Equipment Sales, Inc., 231 So.2d 187 (Miss.1970); Thompson v. Chrysler Motors Corp., 755 F.2d at 1166 n. 3 (5th Cir.1985) (citing Mladinich v. Kohn, 250 Miss. 138, 164 So.2d 785 (1964)). Although plaintiff has attempted to demonstrate that Alabama Power is, in fact, doing substantial and continuous business in Mississippi for purposes of long-arm jurisdiction, one critical element is missing. Plaintiff, in the court's view, has not and cannot demonstrate that her cause of action arises from or is in any way connected with any conceivable business done by Alabama Power in the forum state. The alleged contacts which Alabama Power is said to have with the State of Mississippi, contacts which will be discussed in more detail, infra, concern the company's involvement in the operation of a coordinated and integrated power supply system spanning several states, including Mississippi. In contrast, the helicopter accident giving rise to plaintiff's cause of action occurred within the State of Alabama and involved a power line which is not a transmission line used in the interstate exchange of electricity but rather is solely an intrastate service line bearing electricity only between points within Alabama. Thus, the nexus that the long-arm statute would require between plaintiff's cause of action and any act or transaction of Alabama Power in Mississippi is lacking. It follows, therefore, that the long-arm statute cannot permit assertion of personal jurisdiction over Alabama Power in this court.

However, the long-arm statute does not provide the sole avenue by which jurisdiction may be obtained over a nonresident defendant. Mississippi's attachment statutes, Miss.Code Ann. Sec. 11-31-1 to -11, provide a means for obtaining jurisdiction in addition to that provided in the long-arm statute. See Estate of Portnoy v. Cessna Aircraft Co., 603 F.Supp. 285, 291 (S.D.Miss.1985); see also Fed.R.Civ.Proc. 64 (remedies provided under law of state for seizure of property, including remedy of attachment, made available in district court). After defendant's motion to dismiss was filed, plaintiff, claiming that Mississippi Power Company and Southern Company Services, Inc. owed debts to Alabama Power, filed an amended complaint naming those companies as attachment defendants. An order of attachment was issued by the United States Magistrate against the debts which were alleged to be owed. While the attachment statute, unlike the long-arm statute, does not require any nexus or "causal connexity" between a plaintiff's cause of action and the defendant's property or contacts within the state, employment of the attachment procedures provided by statute to obtain jurisdiction over a nonresident defendant does not excuse the requirement that the exertion of jurisdiction comport with the requirements of the due process clause. Estate of Portnoy, 603 F.Supp. at 292; Administrators of the Tulane Education Fund v. Cooley, 462 So.2d 696, 702-03 (Miss.1985). Thus, regardless of the method of service of process utilized or regardless of whether the action is instituted in personam, quasi in rem or otherwise, all exercises of jurisdiction must be measured by the terms of the due process clause of the United States Constitution. See Schaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). Accordingly, the court must be satisfied that the defendant has the requisite minimum contacts to subject it to the jurisdiction of the court.

The determination of whether constitutional due process requirements have been met when a state exerts personal jurisdiction over a nonresident involves a two-pronged inquiry: "(a) the nonresident must have some minimum contact with the forum which results from an affirmative act on his part; and (b) it must be fair and reasonable to require the nonresident to defend the suit in the forum state." Stuart v. Spademan, 772 F.2d at 1189; see also Hydrokinetics, Inc. v. Alaska Mechanical, Inc., 700 F.2d 1026, 1028 (5th Cir.1983). Inquiry under the first prong is intended to reveal whether the...