Rittenhouse v. Mabry

Citation832 F.2d 1380
Decision Date30 November 1987
Docket NumberNo. 86-4575,86-4575
PartiesZola W. RITTENHOUSE, Plaintiff-Appellant, v. Edward H. MABRY, Jr., et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Guthrie T. Abbott, Oxford, Miss., Ralph E. Chapman, Clarksdale, Miss., for plaintiff-appellant.

Robert L. Moore, Albert C. Harvey, Memphis, Tenn., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Mississippi.

Before GARZA, WILLIAMS, and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

The issue on appeal is whether the federal district court sitting in Mississippi had personal jurisdiction over four of the defendants in this diversity medical malpractice case. The court below dismissed the four defendants, appellees Dr. Edward H. Mabry, Memphis Radiological Professional Corporation (MRPC), Dr. Lee L. Wardlaw, and Gastroenterology Consultants, P.C., for lack of personal jurisdiction. Fed.R.Civ.P. 12(b)(2). We affirm as to Dr. Mabry and MRPC, but hold that the district court had in personam jurisdiction over Dr. Wardlaw and Gastroenterology Consultants, P.C.

Facts and Proceedings Below

Plaintiff-appellant Zola W. Rittenhouse is an elderly Mississippi resident who suffered from gastrointestinal problems. In 1982, her Mississippi physician referred her to Dr. Wardlaw, who at the time practiced only in Memphis, Tennessee. During her only visit to Dr. Wardlaw, which occurred at his office in Memphis, he referred Rittenhouse to another Memphis doctor--Dr. Mabry--for further tests and told her that in preparation for those tests she should ingest a particular over-the-counter laxative and also increase her fluid intake. So far as the record shows, this was Dr. Wardlaw's only contact with Rittenhouse. Rittenhouse returned to her Mississippi home and did as Wardlaw directed. She does not claim any injury caused directly by drinking more fluids and taking the laxative. Gastroenterology Consultants, P.C., (Gastroenterology), is a Tennessee professional corporation of which Dr. Wardlaw is the only member.

The next day, March 17, 1982, Rittenhouse returned to Memphis, this time to the office of MRPC--a Tennessee professional corporation with about twenty doctor-members of whom one was Dr. Mabry. Under his supervision, Rittenhouse was given a barium enema at a Memphis hospital of Methodists Hospitals of Memphis. She claims that the procedure tore her colon, thus necessitating emergency surgery. Rittenhouse continued to feel the effects of this alleged negligence when she returned to Mississippi.

In June 1984, Rittenhouse sued the four appellees, as well as Methodist Hospitals of Memphis, in Mississippi state court. Defendants removed the case to the United States District Court for the Northern District of Mississippi in August 1984 and moved for dismissal on grounds that they were not amenable to in personam jurisdiction under the Mississippi long-arm statute, Miss. Code Ann. Sec. 13-3-57 (1972 & Supp. 1986)--the only statute under which Rittenhouse claimed jurisdiction. On August 6, 1985, the district court, Judge Biggers, granted the motion as to all defendants except Methodist Hospitals (which is not a party to the present appeal). Rittenhouse's motion for reconsideration was denied by the district court on August 23, 1985.

Rittenhouse's motion for reconsideration of the district court's August 6, 1985 order included a request to file an amended complaint alleging jurisdiction under Mississippi's attachment statutes, Miss. Code Ann. Sec. 11-31-1 et seq. (1972 & Supp.1986), a basis not originally asserted. This aspect of the motion to reconsider was not acknowledged or addressed in the district court's August 23, 1985 order overruling the motion to reconsider. On February 24, 1986, Judge Biggers ordered the case transferred to Judge Davidson. In April 1986, a magistrate denied the motion to amend on grounds that the attachment statutes would not permit jurisdiction on the facts of this case. This order was apparently never appealed to the district court.

Rittenhouse thereafter settled with the Methodist Hospitals, and on August 4, 1986, it was dismissed from the suit by an agreed order. Rittenhouse then perfected her appeal to this Court.


If the nonresident defendant protests the exercise of personal jurisdiction, the burden falls on plaintiff to make a prima facie showing that personal jurisdiction exists. E.g., Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1165 (5th Cir.1985). In a federal diversity case, the federal court must apply the law of the state in which it sits. DeMelo v. Toche Marine, Inc., 711 F.2d 1260, 1264 (5th Cir.1983); Breeland v. Hide-A-Way Lake, Inc., 585 F.2d 716, 719 (5th Cir.1978). If state law provides for the exercise of jurisdiction, then the court must determine whether the federal constitution also permits the judicial reach. Smith v. DeWalt Products Corp., 743 F.2d 277, 278 (5th Cir.1984). We will discuss each defendant-appellee in turn.

I. Mabry and MRPC

Because neither Dr. Mabry nor MRPC is a domiciliary or resident of Mississippi, Rittenhouse had to demonstrate the propriety of personal jurisdiction as to these defendants under Mississippi's long-arm jurisprudence.

The Mississippi Code provides three potentially relevant bases for obtaining jurisdiction in this case: the long-arm statute, section 13-3-57, which itself states three bases for obtaining jurisdiction over a nonresident; a corporate law provision, section 79-1-27, subjecting foreign corporations doing business in Mississippi to suit there; and the attachment provisions, sections 11- 31-1 et seq., providing for jurisdiction over defendants with property in Mississippi.

A. Long-Arm Statute

In pertinent part, section 13-3-57 provides:

"Any nonresident person ... or any foreign or other corporation not qualified under the constitution and laws of this state as to doing business here, who shall make a contract with a resident of this state to be performed in whole or in part by any party in this state, or who shall commit a tort in whole or in part in this state against a resident of this state, or who shall do any business or perform any character of work or service in this state, shall by such act or acts be deemed to be doing business in Mississippi."

According to the statute, such acts have the effect of appointing the Mississippi Secretary of State as agent for process "in any actions or proceedings accrued or accruing from such act or acts, or arising from or growing out of such contract or tort, or as an incident thereto...."

No Mississippi case has ever held that this statute is coextensive with federal due process, and so our inquiry must focus on the statute itself. See Smith v. DeWalt Products Corp., 743 F.2d 277, 278 (5th Cir.1984) (refusing to consider due process issue because of lack of jurisdiction under Mississippi's long-arm statute). 1

1. Contract

The first basis for jurisdiction arises if the nonresident makes a contract to be performed in whole or in part in Mississippi. This contract prong does not apply on the present facts. Suits by patients against physicians are customarily brought as tort actions. This is so because the parties rarely enter formal contracts. The responsibilities of doctor to patient are imposed by law and liability results when the physician's level of care falls short of his legal duty. See, e.g., Hall v. Hilbun, 466 So.2d 856, 866-69 (Miss.1985). Nonetheless, we have identified no Mississippi authority to prevent us from also analyzing the relationship as contractual, at least for purposes of the long-arm statute. See 61 Am. Jur.2d Physicians, Surgeons, and Other Healers Sec. 158, at 290-91 (1981) ("The relationship between a physician and patient may result from an express or implied contract.... [T]he voluntary acceptance of the physician-patient relationship by the affected parties creates a prima facie presumption of a contractual relationship between them."); cf. United Companies Mortgage of Mississippi, Inc. v. Jones, 465 So.2d 1083, 1084 (Miss.1985) (stating that an action for legal malpractice may sound in tort or contract); Hutchinson v. Smith, 417 So.2d 926, 927 (Miss.1982) (same).

In some circumstances, a plaintiff in what is essentially a medical malpractice case might be able to make a prima facie showing of jurisdiction under the contract prong. Rittenhouse has not. She has not identified any act that she, Mabry, or MRPC performed or were to perform in Mississippi pursuant to any explicit or implicit contract. As far as the record reflects, any "contract" was entered into, performed, and, for the sake of argument, breached in Tennessee. That is where the unsuccessful procedure began and continued to its unsuccessful conclusion. The statute requires that the contract be one to be performed in whole or in part in Mississippi. "[M]erely contracting with a resident of the forum state is insufficient ... to subject the nonresident to the forum's jurisdiction." Colwell Realty Investments v. Triple T Inns, 785 F.2d 1330, 1334 (5th Cir.1986). Accordingly, Mabry and MRPC are not amenable to jurisdiction on a contract theory. 2

2. Tort

Mabry and MRPC are not amenable under the tort prong for the same reason that prevents the exercise of jurisdiction under the contract prong: the act of alleged negligence was committed and completed in Tennessee. Although Mississippi law does not require that all elements of the tort occur in that state, at least some part of the tort must be committed in Mississippi. See, e.g., Smith v. Temco, 252 So.2d 212, 216 (Miss.1971); Western Chain Co. v. Brownlee, 317 So.2d 418, 421 (Miss.1975); Waffenschmidt v. Mackay, 763 F.2d 711, 720 (5th Cir.1985), cert. denied, 474 U.S. 1056, 106 S.Ct. 794, 88 L.Ed.2d 771 (1986); Breedlove v. Beech Aircraft Corp., 334 F.Supp. 1361, 1365 (D.Miss.1971). The tort is complete when the injury itself occurs, see Smith, 252 So.2d at 216...

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