Opinion
Civil Action No. 3:99CV-79-B-A
March 30, 2000
MEMORANDUM OPINION
This cause comes before the court upon defendant's motion to dismiss. Upon due consideration of the parties' memoranda and exhibits, the court is ready to rule.
FACTS
In March of 1996, the plaintiff and the defendant entered into an agreement whereby the defendant would provide certain land features of a tour of Greece and round-trip airfare from New York to Athens, Greece for the plaintiff's travel group. The contract between the plaintiff and the defendant was entered through a series of telephone calls, letters, and facsimile transmittals, with funds tendered or transferred by the plaintiff to the defendant. The plaintiff alleges that the defendant breached its agreement to provide airfare from New York to Athens by unilaterally increasing the per person fare after the plaintiff had sold its tour package to its customers, resulting in damages through increased airfare and additional hotel accommodations. In the normal course of events, the plaintiff would have made timely payments to the defendant for the air fare, the tickets would be delivered to the plaintiff in Mississippi, and the plaintiff would have distributed those tickets to its customers.
An evidentiary hearing was held on January 11, 2000, in connection with the defendant's motion to dismiss for lack of personal jurisdiction. The plaintiff alleges that between ten and twelve of the New York to Athens airline tickets were delivered to its office in Mississippi in early June 1996, following a down payment of approximately $5,000.00 on its contract to purchase the tickets. Further, the plaintiff claims that this delivery of tickets to the plaintiff in Mississippi is crucial to the determination of whether the court has personal jurisdiction over the defendant in this cause. There was testimony at the hearing and later through affidavits from the plaintiff's witnesses that these ten to twelve tickets were in fact delivered to Mississippi. The defendant denies mailing any tickets to Mississippi and ever receiving a down payment of approximately $5,000.00. The defendant gave testimony at the evidentiary hearing that all airline tickets from New York to Athens were delivered to the plaintiff at the airport in New York only upon receipt of payment. The defendant also testified that delivery of airline tickets at an airport terminal is not a customary business practice.
LAW
"When a nonresident defendant moves to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing the court's jurisdiction over the nonresident." Wilson v. Belin, 20 F.3d 644, 648 (5th Cir.) cert. denied 513 U.S. 930, 115 S.Ct. 322, 130 L.Ed.2d 282 (1994). Moreover, on a motion to dismiss for lack of jurisdiction, uncontroverted allegations in the plaintiff's complaint must be taken as true, and conflicts between the facts contained in the parties' affidavits must be resolved in the plaintiff's favor for purposes of determining whether a prima facie case for personal jurisdiction exists. Bullion v. Gillespie, 895 F.2d 213, 217 (5th Cir. 1990). In a federal diversity suit, the court decides whether in personam jurisdiction is lacking by determining (1) whether the nonresident defendant can be sued in the forum state under its applicable long-arm statute, and (2) if the exercise of jurisdiction pursuant to state law satisfies due process under the Fourteenth Amendment. Smith v. DeWalt Prods. Corp., 743 F.2d 277, 278 (5th Cir. 1984).
Mississippi's long-arm statute reads as follows:
Any nonresident person, firm, general or limited partnership, or any foreign or other corporation not qualified under the Constitution and laws of this state as to doing business herein, 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 or nonresident 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 and shall thereby be subjected to the jurisdiction of the courts of this state. Service of summons and process upon the defendant shall be had or made as is provided by the Mississippi Rules of Civil Procedure.
Miss. Code Ann. § 13-3-57 (Supp. 1996). Therefore, to establish personal jurisdiction over the defendant, the plaintiff has the burden of showing that it qualifies under the "contract," "tort," or "doing business" provision of Mississippi's long-arm statute. Cycles Ltd. v. W.J. Digby, Inc., 889 F.2d 612, 617 (5th Cir. 1989). The reach of Mississippi's long-arm statute is broad. It allows Mississippi courts to exercise jurisdiction over nonresident defendants whose conduct within the state has caused an alleged injury, and over nonresident defendants who have availed themselves of the protection of the laws of the State of Mississippi. The long-arm statute requires the satisfaction of at least one of its conditions before it may be utilized. The plaintiff claims that the actions of the defendant fall under the contract prong of the Mississippi long-arm statute.
The court must first focus on the contract prong of the Mississippi long-arm statute and decide whether the plaintiff and the defendant entered into a contract "to be performed in whole or in part by any party in this state." The plaintiff contends that upon entering into the agreement both the plaintiff and the defendant "contemplated" delivery of the New York to Greece airline tickets to Christian Tours at the plaintiff's Mississippi office. Further, the plaintiff claims that ten to twelve airline tickets were in fact delivered to Mississippi as a result of the original contract. The delivery of these tickets forms the basis of the plaintiff's claim of compliance with the contract prong of the Mississippi long-arm statute by a contract being performed in part in Mississippi, and thus its claim of personal jurisdiction in this court.
The defendant claims that all services required of it through the contract were to be rendered in New York or Greece, and consequentially, there never was a contract to be performed in whole or part in Mississippi. The court is persuaded by the defendant's arguments. The court is of the opinion that the basis of the contract between the plaintiff and the defendant was for the defendant to provide certain land accommodations in Greece and round-trip airfare from New York to Greece. As stated in Rebecca Lowrey Hegan's affidavit, "the terms of that part of the agreement (the contract for the purchase of round-trip airline tickets) are set out in the March 11, 1996 letter." The March 11, 1996 letter contains in pertinent part the following:
It is understood and agreed that the enclosed $7000 (seven thousand dollars no cents) check is to be used as the deposit required to reserve room space at the Hotel Divani Caravel for a minimum of 500 (five hundred) maximum of 600 (six hundred) people. . . .
This initial down payment from the plaintiff to the defendant of $7,000.00 was returned by the defendant. The plaintiff claims to have made a second down payment deposit of approximately $5,000.000 which the defendant denies ever receiving.
It is understood and agreed that with this deposit we are entitled to a maximum per person, round trip airfare from New York to Athens of $539 ($480 airfare plus $59 taxes), based on a minimum of 500 and a maximum of 600 passengers on either Air France or Tower Air. Business and first class upgrades will be available for a minimal fee.
There was testimony from the defendant that airline tickets are usually mailed to the customer upon full payment and the delivery of the tickets to the plaintiff in the New York airport was not a customary business practice. Under this custom of mailing tickets to customers, the plaintiff claims that the parties contemplated delivery to Mississippi as part of the contract, which would indicate that the contract was to be performed in part in Mississippi. However, the language of the March 11, 1996 letter which the plaintiff claims included the terms of the agreement for the purchase of the airline tickets did not include delivery of tickets to Mississippi as an element of the agreement, and therefore the plaintiff is unable to carry its burden of establishing the court's jurisdiction through the Mississippi long-arm statute because there was no contract to be performed in whole or part in Mississippi.
Even if the plaintiff met the burden under the contract prong of the Mississippi long-arm statute of having a contract to be performed in part in Mississippi by the contemplated delivery of airline tickets and the actual delivery of ten to twelve airline tickets to Mississippi, the plaintiff must still demonstrate that the exercise of jurisdiction comports with the due process clause of the Fourteenth Amendment. The court must find that the nonresident defendant has (1) purposefully established "minimum contacts" with the forum state and, if so, (2) that entertainment of the suit against the nonresident would not offend "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158 (1945).
Under the minimum contacts requirement, a defendant has the requisite minimum contacts with a state's forum when "it purposely avails itself to the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws." Hanson v. Denkla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240 (1958). Minimum contacts with the forum state may arise incident to the federal court's "general" or "specific" jurisdiction over the nonresident defendant. General jurisdiction can be asserted only over nonresident defendants who have "continuous and systematic contacts" with the forum state regardless of whether the cause arises from the nonresident's contacts with the forum state. Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872 (1984). Specific jurisdiction exists when the nonresident defendant's contacts with the forum state "arise[ing] out of or relate[d] to the defendant's contacts with the forum." Helicopteros, 466 U.S. at 414 n. 8, 104 S.Ct. at 1872. Even a single purposeful contact may in a proper case be sufficient to meet the requirement of minimum contacts when the cause of action arises from the contact. Micromedia v. Automated Broad. Controls, 799 F.2d 230, 234 (5th Cir. 1986).
In addition to the requirement of a nonresident defendant having minimum contacts with the forum state, the court cannot exercise jurisdiction over a defendant if it offends "traditional notions of fair play and substantial justice." International Shoe, 326 U.S. at 316, 66 S.Ct. at 158. When determining the fundamental fairness issue this court will normally examine (1) the defendant's burden; (2) the forum state's interests; (3) the plaintiff's interest in convenient and effective relief; (4) the judicial system's interest in efficient resolution of controversies; and (5) the shared interest of the several states in furthering fundamental substantive social policies. Gundle Lining Constr. Corp. v. Adams County Asphalt, Inc., 85 F.3d 201, 207 (5th Cir. 1996) (citing Asahi Metal Indus. Co., Ltd. v. Superior Court, 480 U.S. 102, 113, 107 S.Ct. 1026, 1033-34 (1987).
It is evident from the memoranda and from evidence gathered at the evidentiary hearing that the plaintiff cannot meet its burden sufficient to meet the restrictions of personal jurisdiction under the requirements of due process. The defendant is a New York corporation with its principal and only place of business in the United States in New York. The defendant states that none of its contracted travel arrangements with the plaintiff involved travel to or from any location in Mississippi, the defendant has no office or other presence in Mississippi, and the defendant has never had a client from Mississippi other than the plaintiff. This does not constitute "systematic and continuous" contacts sufficient to establish general jurisdiction. See Helicopteros, 466 U.S. at 416, 104 S.Ct. at 1874. Therefore, the court is unable to exercise general jurisdiction in this action.
The Fifth Circuit has set forth a three-part inquiry to determine whether specific jurisdiction exists:
(1) Did the defendant have minimum contacts with the forum state — purposely directing its activities toward the forum state or purposely availing itself of the privilege of conducting activities therein? (2) Did the plaintiff's cause of action arise out of or result from the defendant's forum-related contacts? (3) Would the exercise of personal jurisdiction be reasonable and fair?
Guidry v. United States Tobacco Co., Inc., 188 F.3d 619, 625 (5th Cir. 1999). "Merely contracting with a resident of the forum state is insufficient to subject the nonresident to the forum's jurisdiction." Colwell Realty Invs. v. Triple T Inns, 785 F.2d 1330, 1334 (5th Cir. 1986). The defendant's only contacts with Mississippi include this contract with the plaintiff, the exchange of telephone calls, mail, and faxes with the plaintiff, and the possible delivery by mail of ten to twelve airline tickets to the plaintiff. These limited contacts with the forum state are not the types of contacts which would be construed as the defendant purposely directing its activities toward the forum state or purposely availing itself of the privilege of conducting activities therein. It is also the opinion of the court that the plaintiff's cause of action did not arise out of or result from the defendant's contacts with the forum state. The plaintiff's main contention that the delivery of ten to twelve airline tickets conveys the necessary contact with the forum state to allow personal jurisdiction is not persuasive. The mere fact that these tickets might have been delivered to the forum state does not in itself constitute the necessary contact needed, but quite possibly, the delivery of these tickets may constitute the performance of a separately executed contract between the plaintiff and the defendant if the tickets were delivered in response to the claimed down payment of approximately $5,000.00 by the plaintiff.
Finally, the court must determine whether jurisdiction over the defendant would offend traditional notions of fair play and substantial justice. After duly weighing the above listed factors in determining the fairness of the exercise of jurisdiction, the court finds that the exercise of jurisdiction in this cause would be both unfair and unreasonable. As previously noted, the defendant's only contacts with this forum are the few contacts made with the plaintiff. Also, the contract between the defendant and the plaintiff stated plainly that the agreement would be governed by the laws of the State of New York. Thus, the actions taken by the defendant toward Mississippi are not such that it could reasonably foresee being hailed into this forum's court.
The plaintiff failed to make a prima facie showing that the defendant is receptive to service of process under the Mississippi long-arm statute and that exercise of jurisdiction over the defendant comports with the dictates of the due process clause of the Fourteenth Amendment. Even if the airline tickets had been mailed to the plaintiff in Mississippi under the original contract, this would not necessarily form a basis of personal jurisdiction, and thus the receipt of the allegedly delivered tickets would not be determinative in the instant cause. This notwithstanding, there was evidence that the tickets may have been sent to the plaintiff upon the beginning of a new contract with the claimed down payment of approximately $5,000.00. Even assuming that the delivery of the tickets to Mississippi was encompassed in performing a contract in part in Mississippi under the long-arm statute, the court may not hear the present case, since to do so would not comport with due process. Accordingly, the defendant's motion to dismiss for lack of personal jurisdiction should be granted.
CONCLUSION
For the foregoing reasons, the court finds that the defendant's motion to dismiss should be granted. An order will issue accordingly.