Eluhu v. Rosenhaus

TYSON, Judge,

dissenting.

Defendant engaged in sufficient minimum contacts within the State of North Carolina to subject him to personal jurisdiction consistent with due process, and to enable plaintiff to survive defendant’s motion to dismiss. I respectfully dissent.

In Cooper v. Shealy, 140 N.C. App. 729 , 537 S.E.2d 854 (2000) our Court found jurisdiction based upon sufficient contacts that satisfied due process in an action for alienation of affections where an out-of-state defendant called and emailed plaintiff’s husband in North *363 Carolina. The out-of-state calls were solicitations within the statutory language of the long-arm statute. Cooper, 140 N.C. App. at 734 , 537 S.E.2d at 857 ; N.C.G.S. § 1-75.4 (2001). This Court noted the minimal requirements established by the federal courts, and held these contacts were sufficient to satisfy due process. Id. at 734-35, 537 S.E.2d at 858 (citing Brown v. Flowers Industries, Inc., 688 F.2d 328 (5th Cir. 1982), cert. denied, 460 U.S. 1023 , 75 L. Ed. 2d 496 (1983), and J.E.M. Corporation v. McClellan, 462 F. Supp. 1246 (D. Kan 1978) (exercising personal jurisdiction where defendant’s only contact with the forum state was a single phone call from out-of-state)). See also, Haizlip v. MFI of South Carolina, Inc., 159 N.C. App.-,-S.E.2d -(2003) (finding sufficient minimum contacts where defendant’s only contacts were phone calls and mailings to North Carolina).

Defendant and the majority’s opinion concedes jurisdiction under the long-arm statute, leaving the issue of minimum contacts for consideration. N.C.G.S. § 1-75.4. The due process test for minimum contacts requires inquiry into the five factors discussed in the majority’s opinion. Bruggeman v. Meditrust Acquistion Co., 138 N.C. App. 612, 617 , 532 S.E.2d 215, 219 , disc. review denied and appeal dismissed, 353 N.C. 261 , 546 S.E.2d 90 -91 (2000) (citations omitted). The majority’s opinion finds evidence to satisfy all requirements except for convenience to the parties and interest of the forum state.

The remaining factors of convenience and interest of the forum state have been termed the “fairness” factors and are viewed secondarily, after finding the existence .of sufficient minimum contacts. See Fraser v. Littlejohn, 96 N.C. App. 377, 387 , 386 S.E.2d 230, 237 (1989). The majority’s opinion concludes that the two “fairness” factors outweigh the others in order to affirm the trial court.

I disagree. Although defendant now lives in California, and may be “inconvenienced” by this litigation, his substantial ongoing contacts and physical presence within North Carolina before, at, and after the time the cause of action arose mitigates against any inconvenience. “There is almost always some hardship to the party required to litigate away from home. But there is no constitutional requirement that this hardship must invariably be borne by the plaintiff whenever the defendant is a nonresident.” Byham v. House Corp., 265 N.C. 50, 60 , 143 S.E.2d 225, 234 (1965). Although not a “resident” when the complaint was filed, defendant purposefully availed himself of the privileges of residing, raising his family, renting his house, and vacationing in North Carolina. Defendant could fairly anticipate being subject to litigation as a result of those contacts. If *364 this action arose out of an alleged civil assault or battery occurring in North Carolina, there would be little doubt that North Carolina had personal jurisdiction over defendant. Allowing plaintiff to bring his claim will not “offend[] ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316 , 90 L. Ed. 95, 102 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 , 85 L. Ed. 278, 283 (1940), reh’g denied, 312 U.S. 712 , 85 L. Ed. 1143 (1941)).

As for the interest of the forum state, this Court in Cooper reiterated.

It is important to note that plaintiff cannot bring the claims for alienation of affections and criminal conversation in . . . (defendant’s resident state) since that state has abolished those causes of actions, (citation omitted) Therefore, North Carolina’s interest in providing a forum for plaintiff’s cause of action is especially great in light of the circumstances. Furthermore, North Carolina’s legislature and courts have repeatedly demonstrated the importance of protecting marriage. N.C. Gen. Stat. § 8-57 (c) (spouses may not be compelled to testify against each other if confidential information made by one to the other would be disclosed); Thompson v. Thompson, 70 N.C. App. 147 , 319 S.E.2d 315 (1984), rev’d on other grounds, 313 N.C. 313 , 328 S.E.2d 288 (1985) (attorneys representing a client in a divorce proceeding may not use contingent fee contracts since they tend to promote divorce and discourage reconciliation); Cannon v. Miller, 313 N.C. 324 , 327 S.E.2d 888 (1985) (the causes of action for alienation of affections and criminal conversation are still in existence).

Cooper, 140 N.C. App. at 735 , 537 S.E.2d at 858 .

North Carolina has personal jurisdiction over the defendant due to his “continuous and systematic” quantity and quality of contacts with North Carolina. The quantity and nature of the contacts, North Carolina’s interest in the litigation, and the relative inconvenience to the parties complies with due process in finding personal jurisdiction over the defendant. The nature of this tort and the perceived strength of plaintiff’s claim should not be considerations in a motion to dismiss for lack of personal jurisdiction. The trial court’s dismissal at this early stage of litigation is error. I respectfully dissent.