Moosally v. WW Norton & Co., Inc., 3769.

• Court: Court of Appeals of South Carolina
• Writing for the Court: ANDERSON, J.
• Citation: 594 S.E.2d 878,358 S.C. 320
• Decision Date: 05 April 2004
• Docket Number: No. 3769.,3769.
• Parties: Fred MOOSALLY, Joseph Miceli, John Morse and Robert D. Finney, Appellants, v. W.W. NORTON & COMPANY, INC., Charles C. Thompson, II, and Daniel Meyer, Respondents. Dale E. Mortensen, Appellant, v. W.W. Norton & Company, Inc., Charles C. Thompson, II, and Daniel Meyer, Respondents.

358 S.C. 320
594 S.E.2d 878

Fred MOOSALLY, Joseph Miceli, John Morse and Robert D. Finney, Appellants,
v.
W.W. NORTON & COMPANY, INC., Charles C. Thompson, II, and Daniel Meyer, Respondents.
Dale E. Mortensen, Appellant,
v.
W.W. Norton & Company, Inc., Charles C. Thompson, II, and Daniel Meyer, Respondents

No. 3769.

Court of Appeals of South Carolina.

Heard March 11, 2004.

Decided April 5, 2004.

358 S.C. 325

Stephen F. DeAntonio, of Charleston, for Appellants

358 S.C. 326

John J. Kerr and David B. McCormack, both of Charleston, for Respondents W.W. Norton & Company, Inc., and Charles C. Thompson, II

Daniel P. Meyer, of Washington, D.C., pro se.

ANDERSON, J.:

Fred Moosally, Joseph Miceli, John Morse, Robert D. Finney and Dale E. Mortensen (collectively referred to as "Appellants") appeal from the trial court's grant of motions to dismiss for lack of personal jurisdiction to W.W. Norton & Company, Inc., Charles C. Thompson, II, and Daniel Meyer (collectively referred to as "Respondents"). Additionally, Appellants appeal from the trial court's grant of Respondent W.W. Norton's motion to dismiss pursuant to S.C.Code Ann. § 15-5-150 (1977), the door closing statute. We affirm as to Thompson and Meyer. We reverse and remand as to W.W. Norton.

FACTUAL/PROCEDURAL BACKGROUND

On the morning of April 19, 1989, the center 16" gun in Gun Turret Two of the battleship USS IOWA exploded, killing 47 sailors. As an event of national concern, the explosion was made the subject of two CBS 60 Minutes programs of which Respondent Thompson, a Virginia resident, was a producer. Subsequently, Respondent W.W. Norton, a New York publishing company, contracted with Thompson to write a book explaining the events leading up to and following the explosion aboard the battleship. In preparing his manuscript, Thompson interviewed over 200 individuals, one of whom was Respondent Meyer, a resident of Maryland. The ensuing book, A Glimpse of Hell, was first published in March 1999 and distributed throughout the United States, including South Carolina.

In March and April of 2001, Appellants filed suit against Respondents, asserting causes of action for libel, false light privacy, and conspiracy.¹ Specifically, Moosally, Miceli,

358 S.C. 327

Morse, and Finney allege the book contains numerous falsities that suggest their actions led to the deaths of the sailors aboard the battleship. Mortensen avers "the book contains numerous falsehoods, inaccuracies and defamatory statements that both libel and slander the Plaintiff."

In April of 2001, Respondents filed motions to dismiss pursuant to Rule 12(b)(2), SCRCP, for lack of personal jurisdiction. Additionally, Respondent W.W. Norton moved to dismiss the complaints pursuant to S.C.Code Ann. § 15-5-150 (1977), commonly known as South Carolina's door closing statute. Following a hearing, the Circuit Court entered separate orders dismissing the claims against all three Respondents.

STANDARD OF REVIEW

The question of personal jurisdiction over a nonresident defendant is one which must be resolved upon the facts of each particular case. Engineered Prods. v. Cleveland Crane & Eng'g, 262 S.C. 1, 201 S.E.2d 921 (1974). The decision of the trial court should be affirmed unless unsupported by the evidence or influenced by an error of law. Engineered Prods., 262 S.C. at 4, 201 S.E.2d at 922; see also Hammond v. Cummins Engine Co., 287 S.C. 200, 336 S.E.2d 867 (1985) (stating that this Court is bound by Circuit Court's finding that nonresident defendant is subject to its jurisdiction absent determination that Circuit Court's ruling is without evidentiary support or controlled by error of law); Industrial Equip. Co. v. Frank G. Hough Co., 218 S.C. 169, 173, 61 S.E.2d 884, 885 (1950) ("[T]his Court has adhered to the rule that a finding by the Circuit Court as to jurisdiction or lack of jurisdiction will not be disturbed on appeal unless wholly unsupported by the evidence or manifestly influenced or controlled by error of law.").

It is well-settled that the party seeking to invoke personal jurisdiction over a non-resident defendant via our long-arm statute bears the burden of proving the existence of personal jurisdiction. Southern Plastics Co. v. Southern Commerce Bank, 310 S.C. 256, 423 S.E.2d 128 (1992); Aviation Assocs. & Consultants, Inc. v. Jet Time, Inc., 303 S.C. 502, 402 S.E.2d 177 (1991); South Carolina Dep't of Soc. Servs. v.

358 S.C. 328

Basnight, 346 S.C. 241, 551 S.E.2d 274 (Ct.App.2001). At the pretrial stage, the burden of proving personal jurisdiction over a nonresident is met by a prima facie showing of jurisdiction either in the complaint or in affidavits. Mid-State Distribs., Inc. v. Century Importers, Inc., 310 S.C. 330, 426 S.E.2d 777 (1993); White v. Stephens, 300 S.C. 241, 387 S.E.2d 260 (1990); International Mariculture Res. v. Grant, 336 S.C. 434, 520 S.E.2d 160 (Ct.App.1999)

LAW/ANALYSIS

I. JURISDICTION

Appellants argue the Circuit Court erred in dismissing the claims against Meyer, Thompson and W.W. Norton for lack of personal jurisdiction.

The determination of whether a court may exercise personal jurisdiction over a nonresident defendant involves a two-step analysis. Hammond v. Butler, Means, Evins & Brown, 300 S.C. 458, 388 S.E.2d 796 (1990); South Carolina Dep't of Soc. Servs. v. Basnight, 346 S.C. 241, 551 S.E.2d 274 (Ct.App.2001). First, in order for the courts to have statutory authority to exercise jurisdiction, the nonresident defendant's conduct must meet the requirements of South Carolina's long-arm statute. White v. Stephens, 300 S.C. 241, 387 S.E.2d 260 (1990). Second, the exercise of jurisdiction must comport with the requirements of the due process clause. Southern Plastics Co. v. Southern Commerce Bank, 310 S.C. 256, 423 S.E.2d 128 (1992). The defendant must have sufficient contacts with South Carolina so that the constitutional standards of due process are not violated. White, 300 S.C. at 245, 387 S.E.2d at 262; Basnight, 346 S.C. at 246, 551 S.E.2d at 277; International Mariculture Res. v. Grant, 336 S.C. 434, 520 S.E.2d 160 (Ct.App.1999).

South Carolina's long-arm statute provides:

(1) A court may exercise personal jurisdiction over a person who acts directly or by an agent as to a cause of action arising from the person's

(a) transacting any business in this State;

(b) contracting to supply services or things in the State;

358 S.C. 329

(c) commission of a tortious act in whole or in part in this State;

(d) causing tortious injury or death in this State by an act or omission outside this State if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this State; or

(e) having an interest in, using, or possessing real property in this State; or

(f) contracting to insure any person, property or risk located within this State at the time of contracting; or

(g) entry into a contract to be performed in whole or in part by either party in this State; or

(h) production, manufacture, or distribution of goods with the reasonable expectation that those goods are to be used or consumed in this State and are so used or consumed.

(2) When jurisdiction over a person is based solely upon this section, only a cause of action arising from acts enumerated in this section may be asserted against him, and such action, if brought in this State, shall not be subject to the provisions of § 15-7-100(3).

S.C.Code Ann. § 36-2-803 (2003).

Our long-arm statute, which affords broad power to exercise personal jurisdiction over causes of action arising from tortious injuries in South Carolina, has been construed to extend to the outer limits of the due process clause. Meyer v. Paschal, 330 S.C. 175, 498 S.E.2d 635 (1998); Hammond v. Cummins Engine Co., 287 S.C. 200, 336 S.E.2d 867 (1985); see also Cozi Investments v. Schneider, 272 S.C. 354, 252 S.E.2d 116 (1979) (stating that South Carolina's long-arm statute has been construed as a grant of jurisdiction as broad as constitutionally permissible; hence, parameters of statute are restricted only by due process limitations). Because we treat our long-arm statute as coextensive with the due process clause, the sole question becomes whether the exercise of personal jurisdiction in this case would violate the strictures of due process. See Sonoco Products Co. v. Inteplast Corp., 867 F.Supp. 352, 354 (D.S.C.1994) ("The South Carolina long-arm

358 S.C. 330

statute ... has been interpreted to reach to the limits of due process"; "[t]herefore, the determination of personal jurisdiction in South Carolina compresses into a due process assessment of minimum contacts and fair play."); Ryobi America Corp. v. Peters, 815 F.Supp. 172, 175 (D.S.C.1993) ("The Long-Arm Statute in South Carolina is construed to extend jurisdiction to the limits of Due Process. Because the extent of the statute and the relevant constitutional tests are the same, the inquiry for this court is simply whether the exercise of jurisdiction over Jerry Peters violates his right to Due Process.") (citation omitted).

The Due Process Clause of the Fourteenth Amendment limits the power of a state court to exert personal jurisdiction over a nonresident defendant. Asahi Metal Ind. Co. v. Superior Court, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). Due process requires that there exist minimum contacts between the defendant and the forum state such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Aviation Assocs. & Consultants, Inc. v. Jet Time, Inc., 303 S.C. 502, 402 S.E.2d 177 (1991); see also Quill Corp. v. North Dakota, 504 U.S. 298, 307, 112 S.Ct. 1904, 119 L.Ed.2d 91 (1992) ("[W]e have abandoned more formalistic tests that focused on a defendant's `presence' within a State in favor of a more...