Harman v. Pauley

• Decision Date: 24 September 1981
• Docket Number: Civ. A. No. 80-1075.
• Citation: 522 F. Supp. 1130
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Charles Dale HARMAN, Plaintiff, v. Esther Harman PAULEY, Defendant.

522 F. Supp. 1130

Charles Dale HARMAN, Plaintiff, v. Esther Harman PAULEY, Defendant.

Civ. A. No. 80-1075.

United States District Court, S. D. West Virginia, Bluefield Division.

September 24, 1981.

G. Marshall Mundy, Roanoke, Va., E. M. Payne, III, Beckley, W.Va., David Burton, Princeton, W.Va., for plaintiff.

Jerry K. Jebo, Radford, Va., Dan O. Callaghan, Richwood, W.Va., for defendant.

MEMORANDUM OPINION AND ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION IN OPPOSITION TO TRANSFER

KIDD, District Judge.

Plaintiff, Charles Dale Harman, originally brought this action against defendant, Esther Harman Pauley, in the United States District Court of the Western District of Virginia. Plaintiff is a resident of Georgia and defendant is a resident of Virginia. Jurisdiction was predicated upon diversity of citizenship and the requisite amount in controversy. 28 U.S.C. § 1332. Subsequently plaintiff moved that court to transfer the action to the Southern District of West Virginia, Bluefield Division, pursuant to 28 U.S.C. § 1406(a). That motion was granted; thereafter defendant filed her motion in opposition to the transfer. Defendant argues that the transfer was improper because the Virginia transferor court lacked subject matter jurisdiction and thus lacked the power to transfer and because the West Virginia transferee court lacks personal jurisdiction over the defendant, a resident of Virginia. Implicit in the second argument is the question of whether the West Virginia long-arm statute may be used to obtain service of process over defendant.

Plaintiff and defendant are cousins; the crux of the present dispute centers around certain personal property which plaintiff claims is his by reason of gifts allegedly made to him by Perle T. Harman, the aunt of the plaintiff and defendant. Defendant makes a similar claim. Family quarrels regarding the aunt's personal property have surfaced in the past.

On February 23, 1977, Perle T. Harman sued Charles Dale Harman and several coal companies in the United States District Court for the Western District of Virginia, alleging that Charles Dale Harman had fraudulently and wrongfully caused her to transfer to him certain stock in several coal companies. Subsequently, on July 15, 1977, Charles Dale Harman sued Esther Harman Pauley and other family members in the United States District Court for the Southern District of West Virginia alleging that the defendants had undertaken to injure him in his reputation and profession and had sought to deprive him of his property, including shares of stock. Perle T. Harman was not named as a party defendant in this suit. Ultimately both law suits were dismissed. Prior to the dismissal Charles Dale Harman, Esther Harman Pauley and several other family members executed a "Release in Full and Covenant Not to Sue."¹ Perle T. Harman was not a party to that contract. The complaint in the district court case in West Virginia was dismissed with prejudice one day after the release was filed.

Sometime thereafter Perle T. Harman was declared an incompetent by the Circuit Court of Mercer County, West Virginia and the First National Bank of Bluefield was appointed as her committee. Plaintiff apparently contacted the bank, indicated that he wished to obtain certain items of personalty allegedly belonging to him which were in Perle T. Harman's house in Bluefield, West Virginia, and was instructed by the bank to file a claim for those items with a Commissioner of Accounts located in Mercer County, West Virginia. On or about April 2, 1979, plaintiff filed a proof of claim with the Commissioner of Accounts, stating that Perle T. Harman had given him certain items of personalty described in letters attached to his proof of claim. In response to the claim filed by plaintiff, the Commissioner contacted Perle T. Harman's heirs by letter of May 2, 1979 which reads in part:

"Mr. Dale Harman claims that various items of personal property were given to him and his wife by Mrs. Perle Harman while she was lucid and backs his claim by letters in writing signed by her and witnessed by bank officials.

"This proof of claim was filed before me on April 3, 1979, and there has been no counter-affidavit filed as of this date.

"If no objection to this claim has been filed in this office by July 31, 1979, it will be concluded that the items listed in Dale Harman's claim are his."

Exhibit E, Defendant's Answer.

According to her answer filed herein, defendant Pauley received a copy of this letter and also received a letter from Mrs. Harman's attorney in Bluefield, West Virginia, notifying her of Dale Harman's claim and advising her that she should submit a claim against her aunt's estate for items of personalty allegedly given to her by her aunt. Defendant Pauley's answer further alleges that defendant went to an attorney in Princeton, West Virginia. That attorney filed with the commissioner an affidavit executed in Mercer County, West Virginia, on June 25, 1979 by the defendant which set forth defendant Pauley's claim for the items of personalty previously claimed by plaintiff.

Plaintiff then filed suit in the United States District Court of the Western District of Virginia alleging: (1) defendant breached the release and covenant not to sue by filing a claim against plaintiff's coal stocks and certain items of personalty before a Commissioner of Accounts in Mercer County, West Virginia; (2) in 1976 defendant wrongfully, wilfully and maliciously induced Perle T. Harman to revoke a trust agreement between Perle T. Harman and The First National Exchange Bank of Virginia of which plaintiff was the lifetime income beneficiary and his sons were the residuary beneficiaries; (3) in 1975 defendant wrongfully, wilfully and maliciously sought to file a fraudulent insurance claim in the name of Perle T. Harman with the intention that plaintiff be accused of stealing those items; and (4) the continued effort of defendant to deprive plaintiff of his coal stocks and other personalty has wilfully and maliciously injured plaintiff in his reputation, trade and profession. The defendant answered by denying essentially all of plaintiff's allegations.² With the case in this posture, Judge Turk transferred the case upon plaintiff's motion to the Southern District of West Virginia.³ Defendant then filed her motion in opposition to the transfer for the reasons previously stated.

I. SUBJECT MATTER JURISDICTION

The transferor court did not lack subject matter jurisdiction in the instant case. Jurisdiction of the court was invoked under the diversity provisions and diversity of the parties, as well as the requisite jurisdictional amount, existed at the time of the transfer and still exists.

The complaint before the transferor court at the time of the transfer was sufficient for that court to conclude that it had subject matter jurisdiction. This Court concludes the transfer was proper as regards the question of subject matter jurisdiction. Raese v. Kelly, 59 F.R.D. 612 (N.D.W.Va. 1973); Wright & Miller & Cooper Federal Practice and Procedure: Jurisdiction § 3827.

II. PERSONAL JURISDICTION

The transferee court must have or be able to obtain personal jurisdiction over the defendant; otherwise, the Court must find the transfer improper. See Wright & Miller & Cooper Federal Practice and Procedure: Jurisdiction § 3827 and cases cited therein; 1 Moore's Federal Practice ¶¶ 1.145 6.-2, 1.1465 and cases cited therein. Plaintiff argues that he can obtain personal service over the defendant via the West Virginia long-arm statute. W.Va.Code § 56-3-33 (1980 Cum.Supp.). Defendant essentially argues that she has not had such contact with the state of West Virginia since June 9, 1978, the effective date of the long-arm provision, which would subject her to proper long-arm service.

Rule 4(e) of the Federal Rules of Civil Procedure provides for service upon a non-resident in any manner prescribed by the forum state's "statute or rule." The long-arm provision of West Virginia defines the limits of this Court's personal jurisdiction over a non-resident defendant. The inquiry required to define those limits is necessarily two-fold: first, does the statutory language permit service of process on the non-resident defendant; and second, does such service and thus the exercise of the Court's personal jurisdiction over the non-resident defendant offend the due process clause of the United States Constitution. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Haynes v. James H. Carr, Inc., 427 F.2d 700, 703 (4th Cir. 1970). See Humphreys v. Pierce, 512 F.Supp. 1321, 1323 (W.D.Va.1981).

A. THE STATUTORY REQUIREMENTS

The Court first addresses plaintiff's claims regarding revocation of a trust agreement in 1976 and the attempted filing of a fraudulent insurance claim in 1975.⁴ The West Virginia long-arm provision became effective June 9, 1978 and that provision limits exertion of jurisdiction over a non-resident to causes of action arising from certain specified acts set forth in the statute. W.Va.Code § 56-3-33(b) (1980 Cum.Supp.).⁵ The long-arm provision furthermore is not retroactive: "... and the provisions hereof shall not be available to a plaintiff in a cause of action arising from or growing out of any of said acts occurring prior to the effective date of this section." W.Va.Code § 56-3-33(g) (1980 Cum.Supp.). Plaintiff has made no claim that any of the alleged acts giving rise to the trust or insurance claims were committed subsequent to June 9, 1978. Therefore, it is clear to the Court that plaintiff has failed to bring his claims regarding the alleged revocation of the trust and the attempted filing of a fraudulent insurance claim within the statutory reach of the long-arm provision.⁶ The statutory language does not permit service of process over the non-resident defendant as to those claims and, accordingly, the Court will dismiss those claims.

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