McAlpin v. James McKoane Enterprises, Inc.

• Decision Date: 29 May 1975
• Docket Number: No. EC 74-167-K.,EC 74-167-K.
• Citation: 395 F. Supp. 937
• Parties: Dolton W. McALPIN, Administrator of the Estate of Robert J. Hynes, Plaintiff, v. JAMES McKOANE ENTERPRISES, INC., Defendant.
• Court: U.S. District Court — Northern District of Mississippi

395 F. Supp. 937

Dolton W. McALPIN, Administrator of the Estate of Robert J. Hynes, Plaintiff, v. JAMES McKOANE ENTERPRISES, INC., Defendant.

No. EC 74-167-K.

United States District Court, N. D. Mississippi, E. D.

May 29, 1975.

Luke Dove, Jackson, Miss., for plaintiff.

W. E. Suddath, Jr., Jackson, Miss., for defendant.

MEMORANDUM OPINION

KEADY, Chief Judge.

This is another in a long line of cases in which this court has been required to interpret various aspects of the Mississippi Long Arm Statute.¹ The precise issue raised today is whether the statute can be utilized in an action for the wrongful death of a nonresident decedent, where the plaintiff is a Mississippi resident suing as administrator of the decedent's estate pursuant to letters of administration granted by a Mississippi chancery court.

From the pleadings, affidavits, and briefs of counsel now before us, it appears that on September 11, 1973, Robert J. Hynes, a resident of Farmingdale, New York, was one of three passengers on a private aircraft owned by James McKoane Enterprises, Inc. (McKoane), a California corporation, and piloted by McKoane's agent, Anthony Patterson Clavier. The flight, which had begun outside the continental United States and was bound for California, terminated tragically in Jones County, Mississippi, where, for reasons as yet undetermined, it crashed. All on board were killed.

On December 9, 1974, Dalton McAlpin, a resident of Starkville, Mississippi, was appointed administrator of Robert Hynes' estate by the Chancery Court of Jones County, Mississippi. Hynes was only 25 years of age at his death, dying intestate and left no significant estate other than a claim for negligence against the owner and operator of the aircraft in which he was killed. The decedent was survived by statutory beneficiaries (at least his parents according to plaintiff's counsel) who were nonresidents of Mississippi. In this federal action, McAlpin sues McKoane for damages to Hynes' estate, including loss of property, and for damages sustained by the statutory beneficiaries on account of Hynes' wrongful death, pursuant to Miss.Code Ann. § 11-7-13 (1972), Mississippi's wrongful death act.² Service of process on McKoane as a nonresident defendant was made through the Secretary of State under Miss.Code Ann. § 13-3-57 (1972), the State's long-arm statute.³ The complaint alleged the occurrence in Mississippi of McKoane's tortious acts and omissions which resulted proximately in Hynes' death and resultant damages.

McKoane seeks to dismiss the complaint for lack of in personam jurisdiction and for failure of effective process. McKoane urges that since in personam jurisdiction in this forum may only be acquired by use of Mississippi's Long Arm Statute, which applies solely in favor of Mississippi residents, Robert Hynes' lack of Mississippi residency bars his administrator, although a Mississippi resident, from maintaining suit against McKoane in this court.

I.

Although not addressed by the parties, the fundamental inquiry is to resolve the choice of substantive law here applicable. In Mississippi, as in most jurisdictions, choice of law in wrongful death actions is governed by the "center of gravity" or "most substantial contacts" test, which presumptively applies the law of the forum state unless some other state has a demonstrably more significant relationship with the occurrence and the parties. Mitchell v. Craft, 211 So.2d 509 (Miss.1968). The considerations relevant to choosing the substantive law to be applied under this test are well known and need not be recited here. See §§ 145, 175 The Restatement (Second) Conflict of Laws.

In this case, the defendant is a resident of California. The decedent was a New York resident and we may assume that the decedent's statutory heirs are also residents of that state. The cause of action, however, accrued in Mississippi, and acts of negligence leading to the decedent's death are alleged to have occurred here. Presumably, and upon representations of plaintiff's counsel, persons having knowledge of circumstances surrounding the crash reside in Mississippi or neighboring states. Further, the plaintiff-administrator is a Mississippi resident, and a Mississippi court has sole responsibility for administering decedent's estate.

On these facts, we are satisfied that the Supreme Court of Mississippi would conclude, as we do, that Mississippi, absent a contrary showing, presumptively has the most substantial relationship to the occurrence and the parties, and that Mississippi substantive law, including the state's wrongful death act, must govern the rights and liabilities of the parties.

II.

Under Rule 4(e), F.R.Civ.P., service of process sufficient to confer in personam jurisdiction may be effected in this federal court in any manner and to the extent prescribed by constitutionally valid Mississippi law. In this instance, McKoane is a California corporation not qualified to do business in this state. Without other statutory authority, we may not now adjudicate McKoane's rights and obligations in this diversity action unless the Mississippi Long Arm Statute permits the plaintiff to bring McKoane before us.⁴ Moreover, since service can be effected only by state law, we must look to Mississippi law to determine whether the state's long-arm statute may be here employed. Dawkins v. White Products Corp., 443 F.2d 589 (5 Cir. 1971); Walker v. Savell, 335 F.2d 536 (5 Cir. 1964); Galloway v. Korcekwa, 339 F.Supp. 801, 804 (N.D.Miss.1972).

That statute provides three categories of nonresident defendants against whom its reach may be invoked.⁵ In the instant case, only the second category—a nonresident who commits a tort in whole or in part in this state against a resident of this state—is demonstrably applicable. The airplane crash occurred in this state and, in the words of the state supreme court:

"The tort is not complete until the injury occurs, and if the injury occurs in this State, then, under the amended statute, the tort is committed, at least in part, in this State, and personam jurisdiction of the nonresident tort feasor is conferred upon the Mississippi court." Smith v. Temco., Inc., 252 So.2d 212, 216 (Miss.1971).

Whether McKoane might also come within the third, "doing business category, as plaintiff's counsel asserts, has not yet been demonstrated and is presently irrelevant, for irrespective of the classification into which the nonresident defendant may fall, only Mississippi residents may invoke the long-arm statute. Indeed as this court has held,

"by the enactment of the state's long-arm statute, as consistently construed by prior cases, the state legislature intended to afford a remedy only to residents who might have claims or grounds of action against nonresidents from activity done within the state . . .. the long-arm statute was clearly enacted for the benefit of residents only . . .."

American International Pictures v. Morgan, 371 F.Supp. 528, 532 (N.D.Miss. 1974). See also Moats v. City of Corinth, EC 72-77-K (N.D.Miss., Sept. 30, 1974); C. H. Leavell & Co. v. Doster, 211 So.2d 813 (Miss.1968).

For utilization of the long-arm statute under the nonresident tortfeasor category, two of the three criteria are clearly satisfied. The defendant is a nonresident of Mississippi and has allegedly committed a tort in part in this state. We, therefore, turn to the final criterion which must be met; has this tort been committed against a resident of this state within the meaning of the long-arm statute? Whether a resident administrator can satisfy the plaintiff's residency requirement to employ the long-arm statute presents a case of first impression under Mississippi law.

It is at least clear that the long-arm statute may be invoked whenever tortious acts of a nonresident, committed in part in this state, have resulted in legal injury to a resident of this state. See Smith, supra, 252 So.2d at 216. In determining whether the plaintiff-administrator has suffered injury from the alleged tort, we must examine Mississippi law governing the status of a Mississippi administrator in actions arising from the intestate's wrongful death.

McKoane invokes as the relevant state law Mississippi Power Co. v. Archibald, 189 Miss. 332, 196 So. 760 (1940), and Thames v. State of Mississippi, 117 F.2d 949 (5 Cir. 1941), two cases which may be fairly characterized as relics of federal diversity jurisdiction. Each of these decisions was concerned with the status of a Mississippi plaintiff-administrator as a real party in interest for purposes of determining federal diversity jurisdiction. Each court found that under Mississippi law the administrator was merely a nominal party in a wrongful death action. Therefore, Archibald and Thames concluded that the citizenship of the administrator must be disregarded for diversity purposes.

The specific jurisdictional holding of Archibald and Thames may have been poor federal law at the time the cases were decided,⁶ and it has certainly been demolished by the subsequent adoption of Rule 17(a), F.R.Civ.P., and overwhelming federal precedents holding that where state law authorizes a personal representative to sue for the decedent's wrongful death, that representative is a real party in interest whose citizenship will be looked to in determining federal diversity jurisdiction. Bush v. Carpenter Brothers, Inc., 447 F.2d 707, 710-11 (5 Cir. 1971); State of Mississippi v. Durham, 444 F.2d 152, 153, n. 2 (5 Cir. 1971); Harris v. Johnson, 345 F.Supp. 516, 517 (N.D.Miss.1972); Allen v. Baker, 327 F.Supp. 706 (N.D. Miss.1968); C. Wright, The Law of Federal Courts § 29 (2d ed. 1970). Moreover, the explicit state-law basis for Archibald and Thames—that administrators are not interested parties in actions arising from the wrongful death of their decedents—has been superseded by recent decisions of the Supreme Court of Mississippi construing the applicable Mississippi statutes.

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