Bullard v. USAir, Inc.

• Decision Date: 17 May 1994
• Docket Number: No. 935DC938,935DC938
• Parties: Norman D. BULLARD and Tina R. Stancill v. USAIR, INC. and Tom Toth.
• Court: North Carolina Court of Appeals

Page 80

443 S.E.2d 80

114 N.C.App. 791

Norman D. BULLARD and Tina R. Stancill v. USAIR, INC. and Tom Toth.

No. 935DC938.

Court of Appeals of North Carolina.

May 17, 1994.

Plaintiff-appellee Norman D. Bullard, pro se.

Bruce A. Mason, Wilmington, for plaintiff-appellee Tina R. Stancill.

Bell, Davis & Pitt by Stephen M. Russell and Alan M. Ruley, Winston-Salem, for defendant-appellant Tom Toth.

WYNN, Judge.

Plaintiffs-appellees Norman D. Bullard and Tina R. Stancill are citizens and residents of North Carolina who were scheduled to fly from Wilmington, North Carolina to Key West, Florida, via USAir on 9 July 1992, with connecting flights in Charlotte, North Carolina and Tampa, Florida. Plaintiffs filed suit against USAir, Inc. and its employee, gate agent Tom Toth, on 1 April 1993, alleging that Toth made untrue and defamatory statements about them in the presence of others in the Tampa, Florida airport.

On 23 June 1993, Toth filed an affidavit and motion to dismiss the action against him pursuant to N.C.R.Civ.P. Rule 12(b)(2) and N.C.Gen.Stat. § 1-75.4 on the ground that the court lacks personal jurisdiction over him. On 21 July 1993, Judge W. Allen Cobb, Jr. of the New Hanover District Court entered a written order denying the motion. Defendant-appellant Toth appeals from this order.

The question before us is whether the district court had personal jurisdiction over Tom Toth.

Although Judge Cobb's order was not final as to the merits of the case, this appeal is properly before us pursuant to N.C.Gen.Stat. § 1-277(b) (1983), which provides, "Any interested party shall have the right of immediate appeal from an adverse ruling as to the jurisdiction of the court over the person or property of the defendant."

Tom Toth is a citizen and resident of the state of Florida. He is employed as a gate agent for USAir at Tampa International Airport in Tampa, Florida. He has never lived in the state of North Carolina, nor does he own any property in North Carolina. In the past ten years he has been in the state of North Carolina only occasionally: He attended a two-day USAir training program in Charlotte in July of 1989 and has traveled through the state while on trips. He does not expect to be in the state at any time in the foreseeable future.

In order for a court of North Carolina to exercise personal jurisdiction over an out-of-state defendant, there must be a statutory basis for personal jurisdiction, and an exercise of jurisdiction must not violate the defendant's due process rights. Tom Togs, Inc. v. Ben Elias Indus. Corp., 318 N.C. 361, 348 S.E.2d 782 (1986); Tutterrow v. Leach, 107 N.C.App. 703, 421 S.E.2d 816 (1992), appeal dismissed, 333 N.C. 466, 428 S.E.2d 185 (1993).

When personal jurisdiction is challenged, the burden of proof is on the plaintiff to show by a preponderance of the evidence that these jurisdictional requirements have been satisfied. J.M. Thompson Co. v. Doral Mfg. Co., Inc., 72 N.C.App. 419, 324 S.E.2d 909, disc. rev. denied, 313 N.C. 602, 330 S.E.2d 611 (1985).

Plaintiffs allege a statutory basis for personal jurisdiction in the state's long-arm statute, N.C.Gen.Stat. § 1-75.4 (1983), which provides:

A court of this State having jurisdiction of the subject matter has jurisdiction over a person ... under any of the following circumstances:

(1) Local Presence or Status.--In any action, whether the claim arises within or without this State, in which a claim is asserted against a party who when service of process is made upon such party ...

d. Is engaged in substantial activity within this State, whether such activity is wholly interstate, intrastate, or otherwise.

Our courts have held that this provision extends personal jurisdiction over nonresident defendants to the full extent allowed by due process. Dillon v. Numismatic Funding Corp., 291 N.C. 674, 231 S.E.2d 629 (1977); Parris v. Garner Commercial Disposal, Inc., 40 N.C.App. 282, 253 S.E.2d 29, disc. rev. denied, 297 N.C. 455, 256 S.E.2d 808 (1979).

To satisfy due process, there must exist "certain minimum contacts [between the nonresident defendant and the forum] 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, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945), quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342-43, 85 L.Ed. 278, 283 (1940), reh'g denied, 312 U.S. 712, 61 S.Ct. 548, 85 L.Ed. 1143 (1941). The plaintiff should be able to show some act by which the defendant invoked the benefits and protection of the laws of the forum state. Farmer v. Ferris, 260 N.C. 619, 133 S.E.2d 492 (1963). The relationship between the defendant and the forum must be "such that [the defendant] should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490, 501 (1980).

Although defendant Toth had no personal dealings with the forum state, plaintiffs argue that jurisdiction can be established under Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Plaintiffs rely on the following passage from Burger King:

So long as a commercial actor's efforts are "purposefully directed" toward residents of another State, we have consistently rejected the notion...