Educational Placement Services v. Wilson, 56455

• Decision Date: 23 April 1986
• Docket Number: No. 56455,56455
• Citation: 487 So.2d 1316
• Parties: EDUCATIONAL PLACEMENT SERVICES v. Fred A. WILSON.
• Court: Mississippi Supreme Court

Page 1316

487 So.2d 1316

EDUCATIONAL PLACEMENT SERVICES v. Fred A. WILSON.

No. 56455.

Supreme Court of Mississippi.

April 23, 1986.

Herbert S. Phillips, Jr., Holly Springs, for appellant.

John P. Fox, Edward D. Lancaster, Houston, for appellee.

Before PATTERSON, C.J. and DAN M. LEE and ROBERTSON, JJ.

ROBERTSON, Justice, for the Court:

I.

On this appeal we are asked to review a circuit court's order dismissing a suit on a Tennessee judgment on grounds the Tennessee court had neither personal jurisdiction over the Defendant nor was venue proper there. En route to our decision, we are also called upon to consider the effect of a long undenied request for admissions under Rule 36, Miss.R.Civ.P.

For the reasons explained below, the facts set forth in the Rule 36 request are taken as admitted. As such, these facts form a more than adequate factual predicate to personal jurisdiction over the Defendant in Tennessee. We reverse and remand for further proceedings.

II.

Educational Placement Services ("Educational Placements") is a Tennessee corporation apparently engaged in the business of providing personnel and placement services for teachers and other educators in the mid-South area. Educational Placements has its principal place of business in Memphis, Tennessee.

On March 16, 1983, Educational Placements commenced this civil action by filing its complaint in the Circuit Court of Chickasaw County, Mississippi, First Judicial District, naming Fred A. Wilson as the Defendant. The suit sought enforcement of a judgment said to have been entered in the Court of General Sessions, Shelby County, Tennessee, in favor of Educational Placements and against Wilson in the amount of $3,783.75. Attached to the complaint was an abstract of the docket of the Tennessee court reflecting that on December 1, 1982, judgment had been rendered in favor of Educational Placements and against Wilson in the amount of $3,750.00 plus costs. This abstract was certified in accordance with the Act of Congress, 28 U.S.C. Sec. 1738.

In due course Wilson answered the Chickasaw County suit and asserted, inter alia, that the complaint failed to state a claim upon which relief could be granted, that Wilson was not amenable to in personam jurisdiction in the courts of the State of Tennessee, that the Tennessee court was not the proper venue for the hearing of the original action, and that Educational Placements was a foreign corporation not qualified to do business in Mississippi and therefore had no authority to sue in this state.

In this state of the matter, Educational Placements, on January 23, 1984, acting pursuant to the authority of and in accordance with the procedure of Rule 36, Miss.R.Civ.P., filed and served upon Wilson certain request for admissions. These were obviously designed to lay the predicate for Educational Placements' response to Wilson's claim of lack of in personam jurisdiction in the Tennessee court by showing that he was indeed amenable to in personam jurisdiction there. Specifically, Wilson was requested to admit that he filled out a general background and educational qualifications and experience form, that he signed a contract for placement services with Educational Placements, that he delivered the contract to Educational Placements at its office in Shelby County, Tennessee, that he consulted with Educational Placements in Memphis, Tennessee, regarding employment, and that he requested Educational Placements to seek teaching positions for him in Tennessee among other states.

Insofar as the record reflects, no answers or objections to the request for admissions were ever filed, nor was a request for more time ever made. Wilson appears simply to have ignored the request.

On February 15, 1984, Educational Placements filed and served a motion for judgment on the pleadings, Rule 12(c), Miss.R.Civ.P. It appears that no hearing was ever held on that motion, for the next item that appears is the Order entered March 22, 1985, dismissing the complaint and reciting that

the court is of the opinion that the position of the Defendant [Fred A. Wilson] concerning venue and jurisdiction [in the Tennessee courts] is well taken and this cause should be and is hereby dismissed with prejudice at the cost of the Plaintiff.

From this order, Educational Placements has perfected the instant appeal.

III.

Our primary inquiry is whether Wilson was amenable to in personam jurisdiction in the State of Tennessee. This amenability question has state statutory and federal constitutional components. In order to consider these questions we must review the relevant facts. This gets us into the request for admissions.

A.

Educational Placements' Rule 36 request for admissions was filed and served on January 23, 1984. Wilson had filed no answer or other response through and including the date of the final order of dismissal, March 22, 1985. By that point in time, the facts, admission of which had been requested, had long since become conclusively established for purposes of this action. Rule 36(b), Miss.R.Civ.P.

As allowed by Rule 36(a), this request asked that Wilson admit facts as well as the genuineness of documents. Wilson was in law obligated to respond within 30 days. The request itself advises Wilson and his counsel that it is "to be answered by said party [Wilson] within 30 days after service of the same". The certificate of service reflects mailing on April 22, 1983 [sic].

Rule 36(a) in this context provides

Each matter of which an admission is requested shall be separately set forth. The matter is admitted, unless within 30 days after service of the request,...., the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, ....

Here the record reflects no response being filed by Wilson. No written objection to any of the requests for admissions has been interposed or filed. No motion for an enlargement of time within which to respond appears. In this context, the matters are taken as admitted for purposes of this action. See 8 Wright & Miller, Federal Practice and Procedure Sec. 2259 (1970), and 1985 Pocket Part.

We do not intend here to suggest that any request for admissions to which a response, objection or motion for time has not been filed before the thirty-first day should be taken as irrevocably admitted. Necessary and practicable leniency, however, appear to have generated an air of benevolent gratuity about the administration of Rule 36. But, of course, there is no gratuity about it. Courts cannot give or withhold at pleasure. Rule 36 is to be enforced according to its terms. See Rutherford v. Bass Air Conditioning Co., 38 N.C.App. 630, 248 S.E.2d 887, 892 (1978). More than a year's inaction on the part of the party to whom the request has been submitted must of necessity result in the matters being taken as admitted if the rule is to have any meaning of force at all. ¹ This is particularly so where, as in the case at bar, not one word of explanation or excuse appears either in the record or in his brief on appeal why Wilson could not have responded to the request.

B.

The facts established, we turn to the question of whether Wilson was amenable to in personam jurisdiction in the Court of General Sessions in Shelby County, Tennessee as a matter of Tennessee law. The pertinent language of the Tennessee long arm statute, Tenn.Code Ann. Sec. 20-2-214 (1980) reads:

Persons who are nonresidents of Tennessee ... and cannot be personally served with process within the state are subject to the jurisdiction of the courts of this state as to any action or claim for relief arising from:

(1) The transaction of any business within the state;

* * *

(5) Entering into a contract for services to be rendered or for materials to be furnished in this state;

(6) Any basis not inconsistent with the constitution of this state and of the United States;....

The facts admitted via Rule 36 established that, while a resident of Pontotoc, Mississippi, Wilson requested the placement services of Educational Placements. He indicated that he was interested in work in Mississippi, Tennessee or North Arkansas. On April 6, 1982, he executed a formal written contract retaining the services of Educational Placements and delivered that contract to Educational Placements at its offices in Shelby County. Further, Wilson traveled to Shelby County to consult with Educational Placements. No extended discussion is necessary to make clear that these facts rendered Wilson amenable to in personam...