Bracewell v. Nicholson Air Services, Inc.

• Decision Date: 17 December 1984
• Docket Number: No. 83-8489,83-8489
• Parties: Vernon Eugene BRACEWELL, Plaintiff-Appellant, v. NICHOLSON AIR SERVICES, INC., A Maryland Corporation d/b/a Cumberland Air Lines and Cumberland Air Lines, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1499

748 F.2d 1499

Vernon Eugene BRACEWELL, Plaintiff-Appellant, v. NICHOLSON AIR SERVICES, INC., A Maryland Corporation d/b/a

Cumberland Air Lines and Cumberland Air Lines,

Inc., Defendants-Appellees.

No. 83-8489.

United States Court of Appeals, Eleventh Circuit.

Dec. 17, 1984.

J.C. Rary, Decatur, Ga., for plaintiff-appellant.

Glover, McGhee, Michael H. Schroder, Michael J. Athans, Atlanta, Ga., for defendants-appellees.

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

Before RONEY and VANCE, Circuit Judges, and SIMPSON, Senior Circuit Judge.

SIMPSON, Senior Circuit Judge:

Vernon Eugene Bracewell, a resident of Georgia, filed a diversity action in the Northern District of Georgia against Nicholson Air Services, Inc., a Maryland Corporation not licensed to do business in Georgia, for injuries received while deplaning at the conclusion of an intra-Maryland flight aboard an airplane owned and operated by Nicholson under the name Cumberland Airlines. Bracewell had purchased his ticket for the Cumberland flight from Delta Airlines, a corporation with its headquarters in Atlanta, Georgia, at a Delta ticket office located in a Georgia shopping mall, and on the basis of that sale, served process upon Nicholson under the Georgia Long Arm Statute, Off.Code Ga.Ann. Sec. 9-10-91(1) (1984), then codified at Ga.Code Ann. Sec. 24-113.1(a) (1981), which provides in pertinent part:

A court of this state may exercise personal jurisdiction over any nonresident ... as to a cause of action arising from any of the acts ... enumerated in this Code section, in the same manner as if he were a resident of this state, if in person or through an agent he:

(1) Transacts any business in the state; ....

Nicholson moved to dismiss the suit for want of personal jurisdiction. The district court reviewed the allegations of the complaint and dismissed the case prior to discovery holding that the allegations were insufficient to show that Nicholson had transacted business in Georgia, within the meaning of the statute or that there were sufficient contacts between Nicholson and Georgia to allow a court sitting in that state to assert jurisdiction over a non-resident airline without running afoul of the concepts of "fair play" and "substantial justice" embodied in the due process clause of the Fourteenth Amendment.

This court reversed the dismissal, holding that the allegations of the complaint literally satisfied the requirements of the Long Arm Statute and that dismissal on constitutional grounds was untimely if entered prior to discovery because "Information as to defendant's contacts with the State of Georgia or lack of them is necessarily more within the defendant's knowledge that than the plaintiff's". Bracewell v. Nicholson Air Services, Inc., 680 F.2d 103, 104-05 (11th Cir.1982), (Bracewell I ).

One day before the scheduled trial of the case, defendants filed a "motion for summary judgment" on the issue of personal jurisdiction. After allowing the parties to submit memoranda, the court granted the motion and dismissed the case based upon its review of the complaint, interrogatories and affidavits. ¹

We find that the district court's first ground for dismissing the case inappropriately focuses on terminology to the exclusion of substance, misinterprets state law and ignores the doctrine of the law of the case and therefore cannot withstand challenge under any recognized standard of review:

The plaintiff bases his allegation of personal jurisdiction upon Off.Code of Ga.Ann. Sec. 9-10-91(1) which allows courts in Georgia to exercise personal jurisdiction over any non-resident if he "[t]ransacts any business within this state." However, this subsection of Georgia's long arm statute applies only to matters in contract, not to those sounding in tort. Whitaker v. Krestmark of Alabama, Inc., 157 Ga.App. 536 (1981); Scott v. Crescent Tool Co., 296 F.Supp. 147 (N.D.Ga.1969). Nevertheless, the plaintiff alleges that the injury he allegedly suffered (viz., a broken foot) was the result of the defendant's negligence and that such negligence constitutes a "tort arising out of a contract."

...

The plaintiff has cited no Georgia case which holds that a carrier has a contractual duty to safely carry and disembark persons. Such actions for negligence, in Georgia, are grounded in tort, not in contract.

This court holds that the plaintiff's complaint does not state a cause of action in contract sufficient to invoke Georgia's long arm statute regardless of whether Georgia law or Maryland law is applicable.

(Order, Record 357, 358-59).

To the contrary, Maryland and Georgia both follow the widely recognized rule that a passenger who has been injured through the negligence of a carrier may sue in contract alleging that the tortious act was a breach of the contract of transportation. St. Michelle v. Catania, 252 Md. 647, 250 A.2d 874 (1969); Baltimore City Pass. R. Co. v. Kemp, 61 Md. 619 (1883); Coop Cab Co. v. Singleton, 66 Ga.App. 874, 19 S.E.2d 541 (1942); Hames v. Old South Lines, 52 Ga.App. 420, 183 S.E. 503 (1935); Louisville & N.R. Co. v. Chivers, 11 Ga.App. 236, 75 S.E. 13 (1912). See also, Delta Air Lines v. Millirons, 87 Ga.App. 334, 73 S.E.2d 598 (1952) (implicitly recognizing the rule as applying to air carriers); 14 Am.Jur.2d Sec. 1129; 13 C.J.S. Sec. 757.

Moreover in Bracewell I we expressly held that the complaint alleged sufficient facts to satisfy Georgia's Long Arm Statute and the Fourteenth Amendment, 680 F.2d at 104-05. Under the doctrine of the law of the case, that holding is binding upon the district court and should have ended all inquiry as to the sufficiency of the jurisdictional allegations. Morrow v. Dillard, 580 F.2d 1284, 1289-91 (5th Cir.1978).

Nor can we affirm the judgment on the alternative ground stated by the court; "The plaintiff has simply not shown those minimum contacts with the state of Georgia which would meet the due process requirements of the Fourteenth Amendment." In Bracewell I we held that allegations that "Delta Airlines, and its ticket office in DeKalb County, Northern District of Georgia, is an agent for defendant in ticketing passengers on defendant's airline," were sufficient to support an inference that Nicholson was subject to personal jurisdiction on the theory that it transacted business through its agent, Delta. Id. at 104 (emphasis omitted). There we noted that these allegations and inference of jurisdiction might be supported or overcome by defendant's responses.

Discovery may reveal that Cumberland Airlines had many agents in Georgia and that it derived substantial revenues from ticket sales in Georgia. It may show, on the other hand, that this transaction was individual and isolated and that even if the Georgia statute is satisfied as a literal matter, it would be so unfair to subject defendant to jurisdiction in Georgia that the Due Process Clause of the Fourteenth Amendment would be violated.

680 F.2d at 105.

Unfortunately, the district court misinterpreted this language and misapplied it to the results of discovery.

Defendants' responses showed that Nicholson, doing business as Cumberland Airlines, was a party to an interline agreement governing ticket sales and baggage handling. Under the terms of the agreement a signatory could choose other signatories as its agents for ticket sales. Nicholson chose, among others, four airlines which do business in Georgia as its agents for ticket sales. While Nicholson acknowledged that Delta generated over thirty thousand dollars worth of sales for Nicholson for which it received payment at its Atlanta, Georgia headquarters, it averred that it had no way of knowing which, if any, of those sales were generated by Delta's Georgia sales offices:

The flight coupon is routinely transmitted to the airline which sold it for credit to the airline which sold it to the airline who (sic) provided passage to the passenger. These flight coupons are filed by numbers, and without the number of the ticket, no such compilation is possible. It would be extremely burdensome upon all airlines in the United States and foreign countries to attempt to search through each of the millions of flight coupons hunting for a coupon for passage on the defendant's flights issued by some airline with an office in Georgia. This would literally be an impossible task.

(Defendant's Answers to Plaintiff's First Interrogatories, Record 336, 342).

The district court held that this response was fatal to the...