Grantham v. Aetna Life & Cas.
Decision Date | 17 August 1978 |
Docket Number | Civ. A. No. CA 4-77-280. |
Citation | 455 F. Supp. 440 |
Parties | Marie L. GRANTHAM v. AETNA LIFE AND CASUALTY and Mary Lee Grantham. |
Court | U.S. District Court — Northern District of Texas |
Randal Patterson, Arlington, Tex., for plaintiff.
Bill Bowers, Fort Worth, Tex., for Aetna.
Paul D. Shafer, Jr., Meadville, Pa., for Grantham.
Joe Bruce Cunningham, Fort Worth, Tex., for Local.
There is now before the Court defendant Mary Lee Grantham's motion to dismiss.
The Court having considered said motion, plaintiff's response thereto, and having heard oral argument has determined that defendant Mary Lee Grantham's motion to dismiss should be granted.
The plaintiff seeking to establish the jurisdiction of a federal court has the burden to establish the Court's jurisdiction in response to a Rule 12(b)(2) motion challenging the jurisdiction. Product Promotions, Inc. v. Cousteau, 495 F.2d 483 (5th Cir. 1974); 5 Wright & Miller, Federal Practice and Procedure § 1351 at 565 (1969).
Plaintiff in this law suit is a citizen of the State of Texas. Defendant Mary Lee Grantham is a citizen of the State of Pennsylvania. The lawsuit concerns the payment of a life insurance policy of $90,000.00 by defendant Aetna Life and Casualty. Said life insurance policy was written prior to 1967 by Aetna on R. R. Grantham, the deceased husband of defendant Mary Lee Grantham and the divorced ex-husband of plaintiff Marie L. Grantham. In 1967 while residents of New Jersey, plaintiff and her husband R. R. Grantham entered into a separation agreement in which R. R. Grantham agreed in part that, The amount of the life insurance policy proceeds at the time of the separation agreement was $26,000 with plaintiff as the designated beneficiary.
In 1969 plaintiff Marie L. Grantham and R. R. Grantham were divorced. Subsequent to the divorce R. R. Grantham married defendant Mary Lee Grantham. Subsequent to the remarriage R. R. Grantham increased the proceeds of his life insurance with Aetna from $26,000.00 to $90,000.00. Plaintiff's first wife Marie L. Grantham remained the beneficiary of $26,000.00 and defendant second wife Mary Lee Grantham was named beneficiary of the remaining $64,000.00. R. R. Grantham died in 1977 and Aetna Life and Casualty paid life insurance proceeds of $26,000.00 to plaintiff first wife beneficiary and $64,000.00 to defendant second wife beneficiary. Plaintiff contends in this lawsuit that such dispersal of the proceeds of the life insurance policy was unlawful and in contravention of the 1967 separation agreement and subsequent divorce decree. Plaintiff further claims that she is entitled to the entire $90,000.00 file insurance proceeds.
Plaintiff served defendant Mary Lee Grantham personally with the complaint through service by U. S. Marshal at defendant's residence in Pennsylvania pursuant to Texas Rule of Civil Procedure 108.1 Rule 108 is a procedural rule for service of process. It is possible that through service by Rule 108 the plaintiff may avoid the "doing business" burden of the Texas Long Arm Statute, Tex.Rev.Civ.Stat.Ann. art. 2031b (1964).2 However, Rule 108 must be construed in the context of the due process requirements of the United States Constitution since the federal court's exercise of jurisdiction under state law must comport with basic due process requirements. Product Promotions, Inc. v. Cousteau, 495 F.2d 483, 489 (5th Cir. 1974); Jetco Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228, 1232 (5th Cir. 1973).
Judge Goldberg writing for the Fifth Circuit in the Cousteau case makes it clear that there is a dual test for the determination of whether a court may take jurisdiction without depriving a defendant of due process.
First, "there must be some minimum contact with the state which results from an affirmative act of the defendant." Second, "it must be fair and reasonable to require the defendant to come into the state and defend the action." 2 Moore, supra note 16, ¶ 4.255 at 1171-72.
Product Promotions, Inc. v. Cousteau, supra at 494.
Zeisler v. Zeisler, 553 S.W.2d 927, 929 (Tex. Civ.App. — Dallas 1977, writ dism'd).
In the important case of U-Anchor Advertising, Inc. v. Burt, the Texas Supreme Court in focusing on the constitutional limitations of due process held that a defendant must "have purposefully done some act or consummated some transaction in Texas, and the assumption of jurisdiction by the Texas courts must be found not to offend traditional notions of fair play and substantial justice." U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760, 762 (Tex.1977). The U-Anchor case also held that, "The nature and extent of the contacts of a non-resident with the forum state determine whether or not the forum may exercise in personam jurisdiction over the non-resident, but the infinite variety of such contacts and the vagueness of the constitutional standard render a more definitive articulation of due process requirements impossible." U-Anchor, supra at 764.
The affidavit of plaintiff's daughter, attached to plaintiff's response to defendant Mary Lee Grantham's motion to dismiss, states that prior to R. R. Grantham's death in 1977, R. R. Grantham, paid social visits to Texas in October 1971 and March 1976. Defendant Mary Lee Grantham is presently a resident of Pennsylvania. During the week of R. R. Grantham's death, apparently the only contacts of defendant Mary Lee Grantham to Texas were telephone calls to R. R. Grantham's relatives in Texas. It is plaintiff's position that defendant Mary Lee Grantham had sufficient contacts with the State of Texas such that the maintenance of plaintiff first wife Marie L. Grantham's action does not offend traditional notions of fair play and substantial justice.
Plaintiff relies on the cases of Hearne v. Dow-Badische Chemical Co., 224 F.Supp. 90 (D.C.Tex.1963) and Hoppenfeld v. Crook, 498 S.W.2d 52 (Tex.Civ.App. — Austin 1973, writ ref'd n. r. e.). The Hearne case involved a products liability set of operative facts where the tortious act occurred outside the state of Texas but the injury occurred within Texas. In the Hearne case Judge Noel clearly set forth five factors in the determination of a test for due process. The factors are:
Hearne v. Dow-Badische Chemical Co., supra at 99.
Plaintiff in the case now before this Court seeks the full sum of the insurance proceeds based not only on a constructive trust theory but also on the argument that the action is also tortious in character and based in fraud and fraudulent concealment. It is plaintiff's position that though the fraudulent acts concerning the...
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