Growden v. Ed Bowlin and Associates, Inc., 83-3631

• Citation: 733 F.2d 1149
• Decision Date: 08 June 1984
• Docket Number: No. 83-3631,83-3631
• Parties: Joel H. GROWDEN, et al., Plaintiffs-Appellees, v. ED BOWLIN AND ASSOCIATES, INC., et al., Defendants-Appellants. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1149

733 F.2d 1149

Joel H. GROWDEN, et al., Plaintiffs-Appellees, v. ED BOWLIN AND ASSOCIATES, INC., et al., Defendants-Appellants.

No. 83-3631

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

June 8, 1984.

Francis G. Weller, New Orleans, La., for plaintiffs-appellees.

Howard Daigle, Jr., New Orleans, La., Jacques E. Soiret, Los Angeles, Cal., for Teledyne.

Bruce S. Kingsdorf, New Orleans, La., for Growden, etc.

Dorothy Dubroc Thomas, Baton Rouge, La., for Mary Anne Smith.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEE, POLITZ, and JOHNSON, Circuit Judges.

JOHNSON, Circuit Judge:

In this Louisiana wrongful death diversity case arising from the crash of a Cessna aircraft, the issue on interlocutory appeal pursuant to 28 U.S.C. Sec. 1292(b) is whether the district court erred in denying defendant's motion to dismiss for lack of in personam jurisdiction. Finding that plaintiffs showed insufficient minimum contacts with Louisiana to justify the exercise of in personam jurisdiction, we reverse the district court's decision.

Defendant Ed Bowlin and Associates, Inc. (Bowlin) is a Georgia corporation which is engaged in the business of resale of used aircraft and sells one to three aircraft a year. Bowlin advertised the Cessna aircraft in two national publications, "Aero Trader" and "Trade-A-Plane". Plaintiff's decedent, Tom Growden, a Louisiana resident, saw one of these advertisements and on February 13, 1982, called Bowlin in Griffin, Georgia, to inquire about purchasing the plane on behalf of Growden Brothers, a Louisiana corporation. The next day Bowlin and his wife met with Growden and his wife and son in Eufala, Alabama, to demonstrate the plane. On March 23, 1983, Tom and Jim Growden signed an agreement to purchase the plane and paid the purchase price of $37,500 in Georgia. The Growdens personally received the plane in Griffin, Georgia, and flew it from there to Louisiana. To enable Growden Brothers to avoid paying the Georgia sales tax, the parties executed a "Certificate of Exemption" attesting to out-of-state delivery. Bowlin paid Tom Growden a fee of $50 to fly the plane from Griffin, Georgia, to New Orleans for delivery to himself in Louisiana. Before the Growdens left Georgia, they noticed a flickering alternator light and Bowlin agreed to pay for any repairs to remedy the problem after arrival in Louisiana. There were no further communications concerning the flickering alternator light. On April 1, 1982, on the first flight the plane made after it arrived in Louisiana, the plane lost power and crashed; both occupants, Tom Growden and Richard Smith, died. Their survivors filed suits, now consolidated, to recover damages for the wrongful death of Growden and Smith against the manufacturers of the aircraft, the engine, and the auxiliary fuel tanks, against the company which had serviced the aircraft, and against Bowlin. Without issuing written reasons, the district court denied Bowlin's motion to dismiss for lack of jurisdiction over the person. The court first denied certification of the jurisdictional issue under 28 U.S.C. Sec. 1292(b) but, upon reconsideration, certified the question. By order of October 20, 1983, this court granted Bowlin leave to appeal from the interlocutory order of the district court.

Plaintiffs assert jurisdiction under the Louisiana "long-arm" statute, LSA-RS 13:3201. In a diversity action, a federal court has jurisdiction over a nonresident defendant only to the extent permitted by the long-arm statute of the forum state. Quasha v. Shale Development Corp., 667 F.2d 483, 484-85 (5th Cir.1982). The Louisiana long-arm statute permits exercise of in personam jurisdiction to the full limits of due process under the fourteenth amendment in cases where the suit arises from the nonresident's contact with the forum. Talbot Tractor Co. v. Hinomoto Tractor Sales, USA, 703 F.2d 143, 144 (5th Cir.1983); Quasha, 667 F.2d at 486. The exercise of in personam jurisdiction comports with constitutional due process requirements if (1) the nonresident defendant has some minimum contacts with the state resulting from an affirmative act or acts on its part and (2) it is not unfair or unreasonable to require the defendant to defend the suit in the forum. Hydrokinetics v. Alaska Mechanical Inc., 700 F.2d 1026, 1028 (5th Cir.), petition for cert. filed, 52 U.S.L.W. 3028 (U.S. July 25, 1983) (No. 83-122). This constitutional test is two-pronged; the fairness prong ¹ cannot compensate for or overcome the requirement of some minimum contacts with the forum state. Talbot Tractor, 703 F.2d at 147. The affirmative act prong requires that "there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958). The defendant's conduct and connection with the forum state must be such that he should reasonably anticipate being haled into court in the forum state. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980).

We look to the jurisdictional facts in the instant case to determine whether Bowlin had the necessary minimum contacts with Louisiana to comport with due process requirements. Bowlin does not maintain an office, agent, or place of business in Louisiana. It has never advertised in local Louisiana media; it has no listing in any Louisiana telephone directories. There is no evidence that it has ever made any sales to residents of Louisiana other than the sale to Growden in this case. There is no evidence that it has ever sent representatives, inspectors, or repair or service personnel to Louisiana. Plaintiffs seek to base jurisdiction on the one isolated sale in the instant case. Regarding this sale, Bowlin did not reach out to Growden in Louisiana for business. Instead, it was Growden who, after seeing an advertisement in a national publication, communicated by telephone with Bowlin in Georgia about purchasing the plane. Bowlin and Growden met in Alabama--not Louisiana--for a demonstration of the plane. They next met in Georgia where payment was made and where the Growdens physically took possession of the plane and flew it themselves to Louisiana. The only face-to-face discussions about the sale took place in Alabama and Georgia, outside of the forum state.

Plaintiffs argue that defendant Bowlin had sufficient contacts with Louisiana for the following reasons: (1) Bowlin placed advertisements in two national publications, (2) delivery occurred in Louisiana, (3) Bowlin promised to pay for any repairs to remedy the flickering alternator light, (4) Bowlin knew the plane would be home-based in Louisiana, (5) the plane was paid for with two checks drawn on a Louisiana bank. ²

In Loumar v. Smith, 698 F.2d 759, 763-64 (5th Cir.1983), this Court held that the fact the defendants had placed advertisements in nationally circulated publications was not sufficient in itself to subject them to Texas jurisdiction. ³ Although we recognized that the Supreme Court in World-Wide Volkswagen had included "advertising reasonably calculated to reach the State" as one of many factors which could...