Ramm v. Rowland

• Decision Date: 20 April 1987
• Docket Number: Civ. A. No. H-85-4553.
• Citation: 658 F. Supp. 705
• Parties: Henry Leffert RAMM, Plaintiff, v. Ross ROWLAND, Jr., Defendant.
• Court: U.S. District Court — Southern District of Texas

658 F. Supp. 705

Henry Leffert RAMM, Plaintiff, v. Ross ROWLAND, Jr., Defendant.

Civ. A. No. H-85-4553.

United States District Court, S.D. Texas, Houston Division.

April 20, 1987.

David S. Prince, Houston, Tex., for plaintiff.

David G. Matthiesen, Funderburk & Funderburk, Houston, Tex., for defendant.

MEMORANDUM OPINION AND ORDER

HITTNER, District Judge.

Pending before the Court is Defendant's Motion to Dismiss, or, Alternatively, Motion to Transfer. Having considered the pleadings on file, the oral arguments and representations made on the record at the motion conference, and the law applicable thereto, the Court is of the opinion that Defendant's motion should be, and is hereby, DENIED.

I. FACTS

In late October of 1983, Defendant contacted the Plaintiff's wife in Texas and discussed opening a trading account for her. In January of 1984, Plaintiff's wife, Lynn Ruth Ramm, met with Defendant Rowland in New York City, ostensibly to discuss business matters. Frequent telephone contact was maintained thereafter and letters were exchanged between the wife and Defendant. In March and October of 1984, the Defendant contacted Plaintiff's wife at Plaintiff's home in Texas to request she meet him in California and New Jersey, respectively. Mrs. Ramm thereafter left Texas to join the Defendant in New Jersey, where he continues to reside. Plaintiff alleges that the Defendant used his wealth, social position, and power to influence Plaintiff's wife to engage in adulterous conduct and to leave the Plaintiff, thus effectively alienating the affections of the Plaintiff's wife toward her husband. Defendant has responded with a Motion to Dismiss, or, Alternatively, Motion to Transfer, asserting a federal court located in Texas does not possess in personam jurisdiction.

Defendant has filed an Affidavit dated April 16, 1986, with this Court stating he has had no personal visits of any kind in Texas with either the Plaintiff or Plaintiff's wife since the Ramms moved to Texas. The Defendant alleges his only contacts with the Plaintiff's wife were several telephone calls to and from Mrs. Ramm, two or three letters that the Defendant received from her, and visits that she made to New Jersey and New York. The visits that the Defendant has made to the state of Texas have been for business purposes totally unrelated to this cause of action.

According to an Affidavit filed by the Plaintiff, dated June 10, 1986, Plaintiff spoke by phone with Defendant Rowland during October, 1984, while Mrs. Ramm was visiting the Defendant's home. During that telephone conversation, the Defendant allegedly told the Plaintiff that "he had not done his homework and that he wanted her Plaintiff's wife with him."

It is undisputed that Defendant did contact Mrs. Ramm at her home in Texas by telephone. The question, then, is whether those contacts were sufficient to subject the Defendant to the jurisdiction of a federal court located in Texas.

II. THE CAUSE OF ACTION

Plaintiff, Henry Ramm, is a Texas resident. Defendant, Ross Rowland, is a New Jersey resident. Plaintiff has filed an alienation of affection complaint in Federal Court under its diversity of citizenship jurisdiction. Under the Erie Doctrine, therefore, the Court must look to the forum state for the relevant substantive law. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). While New Jersey does not recognize a cause of action for alienation of affection,¹ Texas is one of the minority of states that still recognizes the cause of action.²

The leading case in Texas on alienation of affection is McQuarters v. Ducote, 234 S.W.2d 433 (Tex.Civ.App. — San Antonio, 1950, writ ref'd n.r.e.).³ This case establishes the three elements necessary for an action for alienation of affection; specifically, (1) Defendant intentionally or purposely enticed away the spouse; (2) there was a loss of affection or consortium; and (3) Defendant's conduct was the controlling cause of the loss. McQuarters, 234 S.W.2d at 434. Furthermore, case law holds that the Defendant does not have to be the sole cause of the alienation of affections, but he does have to be the controlling cause. Rhodes v. Meloy, 289 S.W. 159 (Tex.Civ. App. — Eastland, 1926, writ dismis'd). In the Washington case of Lankford v. Tombari, 35 Wash.2d 412, 213 P.2d 627, 630 (1950), the purpose of the Defendant's acts were inferred from the seductive acts alone since, in the eyes of the law, a man intends the natural and probable consequences of his acts. Texas case law recognizes:

To render one liable to a husband thus wronged, no ill will or spite toward him need be shown. Malice inheres in the very act of consciously doing that which harms the husband. One must be presumed to intend the natural consequences of his or her acts. Appellant must be charged with the knowledge that his acts would produce the very result complained of.

Norris v. Stoneham, 46 S.W.2d 363, 366 (Tex.Civ.App. — Eastland, 1932, no writ).

III. JURISDICTION

The concept of in personam jurisdiction in a federal diversity action is comprised of two elements: (1) the nonresident must be amenable to service of process under the forum state's long-arm statute and (2) the assertion of jurisdiction under such state law must be in accordance with the due process clause of the fourteenth amendment. Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1166 (5th Cir. 1985) (citing Smith v. Dewalt Products Corp., 743 F.2d 277, 278 (5th Cir.1984)). A distinction must be made between cases involving the exercise of specific jurisdiction as opposed to general jurisdiction. General jurisdiction is exercised when the defendant's contacts with the forum state are considered to be sufficiently systematic and continuous as to support a reasonable exercise of jurisdiction. See Perkins v. Benquet Consolidated Mining Co., 342 U.S. 437, 446-48, 72 S.Ct. 413, 418-20, 96 L.Ed. 485 (1952). Specific jurisdiction is exercised when the defendant's activities arise out of or relate to activities conducted within the forum state or are directed to residents within the forum state.⁴ When the claim or controversy arises out of or is related to the defendant's contacts with the forum state, "a court must examine the relationship among the defendant, the forum and the litigation." Patterson v. Dietze, 764 F.2d 1145, 1146 (5th Cir.1985); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984); Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2579, 53 L.Ed.2d 683 (1977).

The party seeking to invoke the jurisdiction of a federal court over a non-resident defendant bears the burden of establishing the court has proper jurisdiction. Brown v. Flowers Industries, Inc., 688 F.2d 328, 332 (5th Cir.1982), cert. denied, 460 U.S. 1023, 103 S.Ct. 1275, 75 L.Ed.2d 496 (1983). The allegations of the plaintiff's complaint, except as controverted by the defendant's affidavit, must be taken as true and are sufficient to establish a prima facie case for in personam jurisdiction.⁵ The Plaintiff's complaint, alleging the Defendant had contacted Mrs. Ramm by telephone, support his allegation that the Defendant had caused an injury to him in Texas.

Service of process was made pursuant to the Texas long-arm statute.⁶ This statute includes in it reach defendants who commit a single tort. In this case, the Defendant's acts were intentional and made with the reasonable anticipation that the impact of his conduct would be felt by the Plaintiff in Texas. A Texas resident need not go to New Jersey to seek redress from a defendant in New Jersey who could reasonably anticipate his action would cause a tortious injury in Texas.⁷ Jurisdiction "may not be avoided merely because the defendant did not physically enter the forum State." Burger King v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 2184, 85 L.Ed.2d 528 (1985). The Court in Burger King further noted that as long as the defendant's actions were purposefully directed toward an out-of-state resident, absence of actual physical contact with the state will not defeat personal jurisdiction. Id. (citing Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774-75, 104 S.Ct. 1473, 1478-79, 79 L.Ed.2d 790 (1984); Calder v. Jones, 465 U.S. 783, 788-790, 104 S.Ct. 1482, 1486-88, 79 L.Ed.2d 804 (1984); McGee v. International Life Ins. Co., 355 U.S. 220, 222-23, 78 S.Ct. 199, 200-01, 2 L.Ed.2d 223 (1957)).

Further, it is a fact of "modern commercial life that a substantial amount of business is transacted solely by mail and wire communications across state lines, thus obviating the need for physical presence in a state in which business is conducted." Burger King, 471 U.S. at 476, 105 S.Ct. at 2184. The modernization of communication systems is not limited to commercial life. As a practical matter, almost all personal telecommunications are also made via mail and wire communications. "A letter or a telephone call may, in a given situation, be as indicative of substantial involvement with the forum state as a personal visit by the defendant." In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220, 235 (6th Cir.1972). The Fifth Circuit has held that one long-distance telephone call that allegedly constituted a tort committed "in whole or in part" in the forum state may be sufficient to establish in personam jurisdiction.⁸ Brown, 688 F.2d at 332-33.

In this case, the Defendant and Mrs. Ramm allegedly engaged in a personal relationship. The Defendant's alleged acts of intentionally contacting the Plaintiff's wife by phone to encourage her to leave her husband is the very essence of the tort. The consequences of his acts created impact on the Plaintiff in Texas. Texas has a significant state interest in redressing injuries that one of its citizens suffers at the hands of an out-of-state citizen. The Plaintiff and his...