Estate of Portnoy v. Cessna Aircraft Co., Civ. A. No. S83-0011(R).

• Citation: 603 F. Supp. 285
• Decision Date: 20 February 1985
• Docket Number: Civ. A. No. S83-0011(R).
• Parties: The ESTATE OF David L. PORTNOY, Deceased, Jerri Bridges, Administratrix, Plaintiff, v. The CESSNA AIRCRAFT COMPANY, Defendant, v. MISSISSIPPI SCHOOL OF AVIATION, et al., Attachment Defendants.
• Court: U.S. District Court — Southern District of Mississippi

603 F. Supp. 285

The ESTATE OF David L. PORTNOY, Deceased, Jerri Bridges, Administratrix, Plaintiff, v. The CESSNA AIRCRAFT COMPANY, Defendant, v. MISSISSIPPI SCHOOL OF AVIATION, et al., Attachment Defendants.

Civ. A. No. S83-0011(R).

United States District Court, S.D. Mississippi, S.D.

February 20, 1985.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Floyd J. Logan, Gulfport, Miss., for Estate of David Portney.

Eaton A. Lang, Jr., Gulfport, Miss., Thomas C. Gerity, Watkins & Eager, Jackson, Miss., for Cessna Aircraft Company.

Roy C. Williams, Megehee, Brown, Williams & Mestayer, Pascagoula, Miss., for Victory Aircraft Inc.

Robert Alan Byrd, Biloxi, Miss., Charles R. Davis, Alex A. Alston, Jr., David A. Bowers, Jackson, Miss., for Mississippi School of Aviation.

H. D. Brock, Greenwood, Miss., for Kimmel Aviation, Inc.

MEMORANDUM OPINION

DAN M. RUSSELL, Jr., District Judge.

The case in chief originally arose out of the crash of a military airplane, a Cessna 02A, in the waters of the Mississippi Sound near Bay St. Louis, Mississippi, on November 11, 1976. David L. Portnoy, a resident of Pennsylvania and Staff Sergeant in the Pennsylvania Air National Guard, was killed in the crash. Jerri Bridges, a Mississippi resident and secretary of counsel for the plaintiffs, was appointed Administratrix of the Estate of David L. Portnoy. Bridges, as Administratrix, instituted a products liability suit in the Federal District Court for the Southern District of Mississippi against Cessna Aircraft Company based on defects in the 02A aircraft as manufactured by Cessna. The wrongful death beneficiaries are Portnoy's brother and his mother and father.

The defendant, Cessna Aircraft Company, is a Kansas corporation with its principal place of business in Wichita. Cessna is not registered to do business in Mississippi. Bridges first attempted to acquire personal jurisdiction over Cessna by utilizing the Mississippi long arm statute, Miss.Code Ann. § 13-3-57 (1972). Cessna Aircraft Company filed a motion to dismiss on the grounds that Bridges could not utilize the Mississippi long arm statute's provisions since the decedent was a non-resident of Mississippi. Judge Harold Cox sustained Cessna's motion and the plaintiff subsequently appealed to the U.S. Fifth Circuit Court of Appeals which affirmed Judge Cox's decision. 730 F.2d 286.

While Judge Cox's decision was pending on appeal, the Estate of Portnoy filed a second action in the Chancery Court of Hancock County, Mississippi, on October 29, 1982, requesting an order of attachment be issued binding money owed to Cessna "now or subsequently in the hands of" several attachment defendants. On November 2, 1982, the Chancery Court of Hancock County, Mississippi, entered an order that a writ of attachment be issued against the attachment defendants binding the property, effects and money in their hands, owned by or owed to Cessna Aircraft Company. Pursuant to the Chancery Court's order, an attachment bond in the amount of $10,000.00 was posted against a claim of $2,500,000.00 actual damages and $2,500,000.00 punitive damages.

Cessna Aircraft Company removed the case to Federal Court on January 4, 1983, and now submits before the Court a motion to dismiss contending (1) due process precludes the court from exercising quasi in rem jurisdiction since the property attached has absolutely no relation to the plaintiff's claim against Cessna, and (2) that the Mississippi attachment statutes, Miss.Code Ann. § 11-31-1 et seq. (Supp.1984) violate the due process clauses of the fifth and fourteenth amendments of the United States Constitution. (See Appendix.)

I. CESSNA'S DUE PROCESS CHALLENGE

Cessna correctly states that the International Shoe requirement of due process was specifically made applicable to the assertion of jurisdiction via attachment in two recent landmark cases, Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), and Rush v. Savchuk, 444 U.S. 320, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980). The due process to be afforded in a quasi in rem action requires more than the physical existence of property in the forum state. In particular, Cessna contends that these holdings specifically require that in order for the Court to exercise quasi in rem jurisdiction, the property attached must be either the subject matter of the litigation or related in some way to the cause of action. Therefore, the existence of property in the forum state, if unrelated to the cause of action, is no longer sufficient for the assertion of quasi in rem jurisdiction over a non-resident. Cessna argues that none of these due process requirements established by Shaffer are met since the cause of action does not bear any reasonable relationship to the business allegedly done by Cessna in Mississippi, is not the subject matter of this litigation, nor is it related to the property sought to be attached. After careful review of the cases governing the connexity requirement and federal due process, it is the opinion of this Court that neither the U.S. Supreme Court nor the U.S. Fifth Circuit Court of Appeals require a causal relationship to be a determinative factor of due process.

The century old decision of Pennoyer v. Neff, 95 U.S. (5 Otto) 714, 24 L.Ed. 565 (1878), identified the exercise of a court's jurisdiction as being in personam, in rem, or quasi in rem. When exercising in personam jurisdiction, a court may act directly upon an individual in determining his liability and enforcing a judgment. In quasi in rem actions, jurisdiction is based on property located within the state's sovereign through which the court applies the property of the defendant to the satisfaction of a claim against him. To exercise in personam jurisdiction over the person of a foreign corporation in a diversity action involves questions of both state and federal law. Basically, there must be a state long arm statute which grants personal jurisdiction and the exercise of such jurisdiction must be consistent with the due process requirements of the United States Constitution. Product Promotions, Inc. v. Cousteau, 495 F.2d 483, 489 (5th Cir.1974). Only after all statutory requirements prescribed in a state's long arm statute are satisfied must the court determine whether the assertion of that jurisdiction exceeds constitutional bounds. Prejean v. Sonatrach, Inc., 652 F.2d 1260, 1264 (5th Cir. 1981).

The United States Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) stated what due process was constitutionally required when a court was to exercise personal jurisdiction over a litigant:

Due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend "traditional motions of fair play and substantial justice."

Id. See also Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940) and Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958).

These decisions have been interpreted by the Fifth Circuit to constitute a dual test for determining the due process issue. First, "there must be some minimum contact with the state which results from an affirmative act of the defendant." Secondly, "it must be fair and reasonable to require the defendant to come into the state and defend the action." Standard Fittings Co. v. Sapag, S.A., 625 F.2d 630, 643 (5th Cir.1980); Product Promotions, Inc. v. Cousteau, 495 F.2d 483, 494 (5th Cir.1974). In assessing the minimum contacts which exist with a state, the mere number is not determinative. Quasha v. Shale Development Corp., 667 F.2d 483, 488 (5th Cir.1982). Fairness is to be determined from a weighing of all the relevant factors pertaining to each individual case. "Few answers will be written in black and white. The greys are dominant and even among them the shades are inumerable." Kulko v. Superior Court, 436 U.S. 84, 92, 98 S.Ct. 1690, 1697, 56 L.Ed.2d 132 (1978) (quoting Estin v. Estin, 334 U.S. 541, 545, 68 S.Ct. 1213, 1216, 92 L.Ed. 1561 (1948)). What is determinative is whether the total contacts with the forum "support an inference that the nonresident defendant purposefully availed himself of the benefits of conducting business in the forum." Standard Fittings, 625 F.2d at 643; Product Promotions, 495 F.2d at 495; Quasha, 667 F.2d at 483. Such contacts must be deliberate and not fortuitous, "so that the possible need to invoke the benefits and protections of the forum's laws was reasonably foreseeable, if not foreseen, rather than a surprise." Standard Fittings, 625 F.2d at 643; Product Promotions, 495 F.2d at 496. In judging these contacts, the court is to focus on "the relationship among the defendant, the forum, and the litigation...." Shaffer, 433 U.S. at 204, 97 S.Ct. at 2580.

The Fifth Circuit has identified three primary and two secondary factors which may be used in determining whether due process has been afforded in the exercise of personal jurisdiction over a foreign corporation.¹ These include, respectively, the quantity of contacts, the nature and quality of the contacts, the connection of the cause of action to the contacts, the interest of the forum in providing a forum for its residents, the convenience to the parties, and the nature and character of the business.

The defendant contends that since there is not a connection between the cause of action and the property attached, or Cessna's contacts with Mississippi, the exercise of jurisdiction would deprive Cessna of due process. To follow defendant's argument would formulates a third prerequisite of connexity to the test of due process rather than treating this factor as just one of the primary elements to be weighed in consideration with the others.

The U.S. Supreme Court has expressly refused to make the causal connexity...