Attwell v. LaSalle Nat. Bank, No. 79-1712

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore GOLDBERG, RUBIN and POLITZ; POLITZ
Citation607 F.2d 1157
PartiesJoseph J. ATTWELL and Arlene Attwell, Plaintiffs-Appellants, v. LaSALLE NATIONAL BANK, a National Banking Association, and George Epiney, Senior Vice President, Defendants-Appellees. Summary Calendar. *
Decision Date07 December 1979
Docket NumberNo. 79-1712

Page 1157

607 F.2d 1157
Joseph J. ATTWELL and Arlene Attwell, Plaintiffs-Appellants,
v.
LaSALLE NATIONAL BANK, a National Banking Association, and
George Epiney, Senior Vice President, Defendants-Appellees.
No. 79-1712
Summary Calendar. *
United States Court of Appeals,
Fifth Circuit.
Dec. 7, 1979.
Rehearing Denied Jan. 17, 1980.

Page 1158

Joseph J. Attwell, pro se.

Powell, Goldstein, Frazer & Murphy, Karen Wildau, Edward E. Dorsey, W. E. Robinson, Atlanta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before GOLDBERG, RUBIN and POLITZ, Circuit Judges.

POLITZ, Circuit Judge.

Appellants Joseph J. and Arlene Attwell, while residents of Illinois, obtained a loan from appellee, LaSalle National Bank. They moved to Georgia. The loan was in default and appellee filed suit in state court in Illinois recovering judgment against appellants for $2,286.01.

Appellants filed the instant suit with service thereof being made two days after entry of the judgment on the defaulted note.

In their complaint appellants contend that appellees, LaSalle National Bank and George Epiney, Sr., its senior vice-president, had no legal right to initiate the lawsuit in Illinois because appellees knew that appellants had no funds to repay the loan and that the suit would injure appellants' credit

Page 1159

rating and hamper Mr. Attwell's efforts to secure employment as an attorney. The complaint sought the enjoining of the Illinois proceeding, the dismissal of that litigation and an award of both compensatory and punitive damages.

The first count of the complaint is based on diversity jurisdiction, 28 U.S.C. § 1332. The second count bears marked similarity to the first and appends allegations of violation of due process based on the bank's use of the Illinois long-arm statute in its suit on the note. It is contended that this procedure was contrary to 42 U.S.C. § 1983 and that the court has jurisdiction under 28 U.S.C. § 1343. The third count alleges that the bank violated the Fair Credit Reporting Act, 15 U.S.C. § 1681 Et seq., when it disseminated credit information about the default in payment which information was damaging to appellants. Jurisdiction here is asserted under 28 U.S.C. § 1331. The relief sought included an injunction against distribution of any information concerning the loan account and an order directing appellees to deliver over copies of all credit data it had distributed.

Appellees filed responsive pleadings including a motion to dismiss under Fed.R.Civ.P. 12(b)(2), challenging the personal jurisdiction of the court. The motion also questioned venue under 12(b)(3) and the sufficiency of service of process under 12(b)(5).

The district court determined to consider together the issues of jurisdiction over the person and sufficiency of service of process. Having done so the district court concluded that the facts did not support the exercise of personal jurisdiction over the defendants and accordingly granted appellees' motion and dismissed the complaint. We affirm.

The dispositive facts as established by the pleadings and the uncontroverted affidavits filed by appellees are not in dispute. The Attwells while residents of Illinois secured a loan from the LaSalle National Bank, a national banking association with its principal place of business in Cook County, Illinois. The Attwells moved to Georgia. The loan was in default. There were communications between the Attwells in Georgia and bank representatives in Illinois, specifically a telephone conversation initiated by the Attwells, a letter response to that conversation from the bank and one further communication in which the bank agreed to a one month extension of payment. That extension is not material herein. The bank has done no business whatever in Georgia, it had no contacts with Georgia other than the noted communications with appellants with reference to payment of the defaulted loan. The bank owned no property in Georgia. The co-appellee, Mr. Epiney, has always lived in Illinois, he had never conducted or transacted any business in Georgia other than the noted loan related communications, and he owns no property in Georgia.

Service of process herein was accomplished pursuant to the provisions of the Georgia long-arm statute, Ga.Code Ann. § 24-113.1.

It is axiomatic that in order for there to be in personam jurisdiction there must be valid service of process. To determine that, resort must be made to the Federal Rules of Civil Procedure, in this instance Rule 4. Two subsections of Rule 4 are pertinent, 4(d)(7) and 4(e). 1

Page 1160

There is no special statute of the United States prescribing service of process in the instant suit which would vary the usual practice and procedure. The recognized territorial limitations are obviously exceeded. Rule 4(f). This is a suit in the district court in Georgia against Illinois residents. We must, perforce, refer to state law. The applicable state statute is, as noted above, the Georgia long-arm statute which 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...

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41 practice notes
  • Delong Equipment Co. v. Washington Mills Abrasive Co., No. 86-8872
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 23 Marzo 1988
    ...581 F.2d 1224, 1226 (5th Cir.1978), cert. denied, 440 U.S. 959, 99 S.Ct. 1500, 59 L.Ed.2d 772 (1979); Attwell v. LaSalle National Bank, 607 F.2d 1157, 1160-61 (5th Cir.1979); Gold-Kist Inc. v. Baskin-Robbins Ice Cream Co., 623 F.2d 375, 378-80 (5th Cir.1980); Bankhead Enterprises, Inc. v. N......
  • NAT. EGG CO. v. Bank Leumi le-Israel BM, Civ. A. No. C80-187.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • 18 Noviembre 1980
    ...the Georgia long-arm statute as well as the due process clause of the United States Constitution. E. g., Attwell v. LaSalle Nat. Bank, 607 F.2d 1157, 1160 (5th Cir. 1979). See Shingleton v. Armor Velvet Corp., 621 F.2d 180 (5th Cir. 1980), Thorington v. Cash, 494 F.2d 582 (5th Cir. 1974). P......
  • Amoco Oil v. LOCAL 99, INTERN. BROTH. OF ELEC., ETC., Civ. A. No. 81-0554.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • 29 Marzo 1982
    ...as to the existence of jurisdiction. Land v. Dollar, supra, at 735, 735 n. 4, 67 S.Ct. at 1010, 1010 n. 4; Attwell v. LaSalle Nat'l Bank, 607 F.2d 1157, 1161 (5th Cir. 1979), cert. denied, 445 U.S. 954, 100 S.Ct. 2924, 63 L.Ed.2d 791 (1980) (personal jurisdiction); Exchange Nat'l Bank of Ch......
  • Hayes v. Irwin, Civ. A. No. C 77-2027 A.
    • United States
    • U.S. District Court — Northern District of Georgia
    • 4 Junio 1982
    ...(1933); Gold 541 F. Supp. 417 Kist Inc. v. Baskin-Robbins Ice Cream Co., 623 F.2d 375 (5th Cir. 1980); Attwell v. LaSalle National Bank, 607 F.2d 1157 (5th Cir. 1979). Furthermore, it is a well accepted principle of law that a nonresident defendant is subject to the jurisdiction of the cour......
  • Request a trial to view additional results
41 cases
  • Delong Equipment Co. v. Washington Mills Abrasive Co., No. 86-8872
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 23 Marzo 1988
    ...581 F.2d 1224, 1226 (5th Cir.1978), cert. denied, 440 U.S. 959, 99 S.Ct. 1500, 59 L.Ed.2d 772 (1979); Attwell v. LaSalle National Bank, 607 F.2d 1157, 1160-61 (5th Cir.1979); Gold-Kist Inc. v. Baskin-Robbins Ice Cream Co., 623 F.2d 375, 378-80 (5th Cir.1980); Bankhead Enterprises, Inc. v. N......
  • NAT. EGG CO. v. Bank Leumi le-Israel BM, Civ. A. No. C80-187.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • 18 Noviembre 1980
    ...the Georgia long-arm statute as well as the due process clause of the United States Constitution. E. g., Attwell v. LaSalle Nat. Bank, 607 F.2d 1157, 1160 (5th Cir. 1979). See Shingleton v. Armor Velvet Corp., 621 F.2d 180 (5th Cir. 1980), Thorington v. Cash, 494 F.2d 582 (5th Cir. 1974). P......
  • Amoco Oil v. LOCAL 99, INTERN. BROTH. OF ELEC., ETC., Civ. A. No. 81-0554.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • 29 Marzo 1982
    ...as to the existence of jurisdiction. Land v. Dollar, supra, at 735, 735 n. 4, 67 S.Ct. at 1010, 1010 n. 4; Attwell v. LaSalle Nat'l Bank, 607 F.2d 1157, 1161 (5th Cir. 1979), cert. denied, 445 U.S. 954, 100 S.Ct. 2924, 63 L.Ed.2d 791 (1980) (personal jurisdiction); Exchange Nat'l Bank of Ch......
  • Hayes v. Irwin, Civ. A. No. C 77-2027 A.
    • United States
    • U.S. District Court — Northern District of Georgia
    • 4 Junio 1982
    ...(1933); Gold 541 F. Supp. 417 Kist Inc. v. Baskin-Robbins Ice Cream Co., 623 F.2d 375 (5th Cir. 1980); Attwell v. LaSalle National Bank, 607 F.2d 1157 (5th Cir. 1979). Furthermore, it is a well accepted principle of law that a nonresident defendant is subject to the jurisdiction of the cour......
  • Request a trial to view additional results

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