Attwell v. LaSalle Nat. Bank
| Decision Date | 07 December 1979 |
| Docket Number | No. 79-1712,79-1712 |
| Parties | Joseph 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. * |
| Court | U.S. Court of Appeals — Fifth Circuit |
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.
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 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
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 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; or
(d) Owns, uses or possesses any real property situated within this State.
It is appropriate in a diversity case for a federal court to exercise in personam jurisdiction over a foreign defendant if the state court may do so in the proper exercise of state law. Erie R. R. Co. v. Tompkins,304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1933); Mack Trucks, Inc. v. Arrow Aluminum Castings Co., 510 F.2d 1029 (5th Cir. 1975). However, in applying such statutes it has long been recognized that the defendant must have "certain minimum contacts with (the forum state) such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). See also Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), which we read to hold that a foreign corporation must have done some act purposefully availing itself of the privilege of conducting business activities in the forum state to subject itself to the jurisdiction of that state's courts.
A brief examination of the subparts of the Georgia statute is in order.
Subsection (a) authorizes in personam jurisdiction over a nonresident transacting business within the state. The Georgia Supreme Court enunciated the parameters of this provision in Davis Metals Inc. v. Allen, 230 Ga. 623, 198 S.E.2d 285, 287 (1975), as follows:
"Under our Long Arm Statute jurisdiction over a nonresident exists on the basis of transacting business in this state 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."
It is abundantly clear that the uncontroverted facts do not conform to the Davis Metals requirements. Notably the contacts in the case at bar are substantially less than those which existed in Robinson v. Ravenel Co. Inc., 411 F.Supp. 294 (N.D.Ga.1976), which were found to be insufficient. In Robinson the nonresident had signed loan commitment letters in Georgia, had negotiated checks drawn on Georgia banks and had employed a Georgia law firm to review loan documents.
There is a measure of discretion on the part of the states in their exercise of jurisdiction over nonresidents consistent, of course, with the constitutional limitations. A clear expression of the extent opted for by Georgia is found in Shellenberger v Tanner, 138 Ga.App. 399, 408, 227 S.E.2d 266, 274 (1975):
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