Petition — Swafford v. Avakian

78-1019

DEC 22 1978

HAS teria, J, OLEAK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No.

NORA SWAFFORD,

Petitioner,

versus

DICK AVAKIAN,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

FRANK M. GLEASON

Attorney at Law

JAMES A. SECORD

Associate

102 Howard Street

Rossville, Georgia 30741

Telephone (404) 866-7977

COUNSEL FOR PETITIONER

SCOFIELDS' QUALITY PRINTERS, P. O. BOX 53096, N. O., LA. 70153 - 504/822-1611

i nt st

TABLE OF CONTENTS

; Page

Citations to Opinions Below ..................4.. 1

DPIC INNN GORGE 5... 5 on occ ccccccccevcccces 2

Questions Presented for Review ................. 2

ee as bass cuaad aw aemeameae 3

NE PE oon ivi cbesescaenacesens 4

Reasons for Granting Writ ...............-e0000: 7

ea aGe i iah eee ec ehbunbdndneceskwncies 10

EE GPWID ce cicnen nsec ccscnasecsass 12

Appendices:

Opinion of the United States District Court

for the Northern District of Georgia,

Rome Division, filed March 17, 1978 ....... la

Judgment of the United States District

Court for the Northern District of

Georgia, Rome Division, filed March 17,

DEE Ach MLARRE Aba SGANCOEN ESN M CHRO ek Ooees Sa

Opinion of the United States Court of

Appeals for the Fifth Circuit, dated Oc-

eg Cs Sapa 6a

Judgment of the United States Court of

Appeals for the Fifth Circuit, entered Oc-

tN iain ain enn le 15a

TABLE OF AUTHORITIES

Cases

Georgia Page

Spence v. Carter, 33 Ga. App. 279, 125 S.E. 883

ATU RTL nha edo cdbwerbas say we'svans 10

Federal

Hanson v. Deckla, 357 U.S. 235, 78 S.Ct. 1220

ON EET Teer ety eee eee 8

International Shoe Company v. Washington, 326 U.S.

BEM, BO DAN, THO TAMER cei vccievcvweiccs 7 ,8,9

Kulko v. Superior Court of California In and For the

City and County of San Francisco, U.S. “i.

oe 8 ee a a a re 8

McGee v. International Life Insurance Company, 355

ey Say Fe OD, BOP COSI) an ceva cece venvcs 8

Shellenberger v. Tanner, 138 Ga. App. 399, 227

ng ORR ek ee 8,9

Swafford v. Avakian, 581 F.2d 1224 (Sth Cir.

OR va ahi sin bck cea a kOe e hia odd dal bakes 9

Thorington v. Cash, 494 F.2d 582 (Sth Cir. 1974) ....9

Statutes and Rules

ee ee eS ee a 3,6,7,8

I Tr et 2

California Civil Code §43.5(d) ............ cece 10

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No.

NORA SWAFFORD,

Petitioner,

versus

DICK AVAKIAN,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

TO THE HONORABLE, THE CHIEF JUSTICE AND

THE ASSOCIATE JUSTICES OF THE SUPREME

COURT OF THE UNITED STATES:

Your Petitioner respectfully prays that a Writ of

Certiorari issue to review the judgment of the United

States Court of Appeals for the Fifth Circuit in Case

No. 78-1803, entered October 16, 1978.

CITATIONS TO OPINIONS BELOW

The order of the District Court for the Northern

District of Georgia granting Respondent’s motion to

2

dismiss, and the judgment of said court dismissing the

case, both entered on March 17, 1978, are unpublished,

but are reprinted in Appendix A, infra.

The opinion and judgment of the Fifth Circuit Court

of Appeals, entered October 16, 1978, affirming the

judgment of the lower court, is published at 581 F.2d

1224 and is reprinted in Appendix A, infra.

JURISDICTIONAL STATEMENT

The judgment of the Fifth Circuit Court of Appeals

was entered on October 16, 1978. The jurisdiction of

this Court is invoked under the provisions of 28 U.S.C.

§1254(1).

QUESTIONS PRESENTED FOR REVIEW

(1) Whether the Circuit Court erred in holding that

the Georgia Long-Arm Statute afforded no in personam

jurisdiction over Respondent in a suit by Petitioner for

breach of marriage promise and fraud.

(2) Whether a proposed contract of marriage made

by means of long-distance telephone calls and letters

transmitted in the United States Mail from a resident

of the State of California and accepted by a resident of

the State of Georgia by long-distance telephone, to be

performed in California, constituted sufficient

minimum contacts with Georgia to invoke the

jurisdiction of the Georgia District Court under that

3

State’s Long-Arm Statute [Ga. Code Ann. §24-113.1]

in a suit for breach of marriage promise and fraud.

STATUTES INVOLVED

Ga. Code Ann. §24-113.1(a), (b), (c)

Personal jurisdiction over non-residents of State. — A

Court of this State may exercise personal

jurisdiction over any non-resident, or his

executor or administrator, as to a cause of

action arising from any of the acts, omissions,

ownership, use or possession enumerated in

this section, in the same manner as if he were a

resident of the State, if in person or through

an agent, he:

(a) Transacts any business within his

State; or

(b) Commits a tortious act or omission

within this State, except as to a cause of action

for defamation of character arising from the

act; or

(c) Commits a tortious injury in this State

caused by an act or omission outside this

State, if the tortfeasor 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...

4

STATEMENT OF THE CASE

In January of 1976, NORA SWAFFORD, a divorcee

with three children, was employed as a public relations

and social clinical worker with a medical group in

Fresno, California. In the course of her employment,

she came in contact with DICK AVAKIAN when

assigned to handle a dispute which had arisen over

medical expenses incurred by AVAKIAN’s deceased

wife while under the treatment of the medical group.

MRS. SWAFFORD resolved the problem to the

satisfaction of AVAKIAN, and soon thereafter, he

began dating MRS. SWAFFORD and entertaining her

in considerable style. The friendship of the parties

blossomed into a romance and AVAKIAN finally

proposed marriage, which MRS. SWAFFORD

accepted.

The parties continued their courtship for some time,

but AVAKIAN would never follow through with his

proposal. Finally, MRS. SWAFFORD became

disenchanted with the whole situation, and _ left

California to return to her native State of Georgia,

arriving there on April 9, 1977.

No sooner did MRS. SWAFFORD arrive in Georgia,

but AVAKIAN began to beseige her with telephone

calls and several letters wherein he apologized for his

past unseeming attitude toward her, reaffirmed his

love and again proposed marriage. Finally, on May 9,

5

1977, her fears and skepticism allayed by the vigor of

his supplications, MRS. SWAFFORD agreed, during a

long-distance telephone conversation with AVAKIAN,

to marry him. At the time the proposal was made and

accepted, AVAKIAN resided in California and MRS.

SWAFFORD resided in Georgia.

On June 3, 1977, MRS. SWAFFORD left her home in

Georgia, in anew automobile purchased by AVAKIAN,

and returned to California with her three children and

personal effects, pursuant to AVAKINA’S

instructions.

Upon her arrival in California, some five days later,

AVAKIAN warmly welcomed MRS. SWAFFORD and

her children and insisted that they move into his com-

modious home immediately, as the marriage ceremony

would be performed without delay. During the month

of June, an engagement party was given and MRS.

SWAFFORD was the recipient of an expensive engage-

ment ring. AVAKIAN discussed setting up a trust fund

for MRS. SWAFFORD’S children and even suggested

that she go to the courthouse to change her mailing ad-

dress for child support payments and give information

of her future name change, to be effective upon

marriage.

About two weeks passed, but no wedding date was

ever mentioned. MRS. SWAFFORD broached the sub-

ject several times, but no response was forthcoming.

Finally, on June 30, 1977, she attempted to discuss the

6

subject again but, to her surprise, received only a cruel

rebuff from AVAKIAN, who informed her that the

engagement was off and that she should go back to

Georgia and live with her family. The next day MRS.

SWAFFORD and her children set out for another

cross-country trek back to Georgia.

On November 9, 1977, MRS. SWAFFORD filed a

two count complaint for damages against AVAKIAN in

the United States District Court for the Northern Dis-

trict of Georgia, Rome Division. Count One sounded in

contract for a breach of a marriage promise under

Georgia law; Count Two sounded in tort for

fraudulent misrepresentation.

AVAKIAN was served in California on December

16, 1977, personal jurisdiction being predicated upon

Georgia Long-Arm Statute (Ga. Code Ann. §24-113.1).

After service, AVAKIAN filed a motion to dismiss the

complaint, contending that the Georgia statute did not

confer jurisdiction upon the district court under the

facts of the case, a position which the district court

sustained, by order dated March 17, 1978.

An appeal was thereafter taken to the Fifth Circuit

Court of Appeals, which subsequently affirmed the

judgment of the district court on October 16, 1978.

7

REASONS FOR GRANTING WRIT

A. The Fifth Circuit Court Of Appeals

Rendered A Decision In Conflict With

Previous Decisions Of That Court And

The U. S. Supreme Court, And In So Do-

ing, Decided An Important State Ques-

tion In A Way That Conflicted With

Applicable State Law.

The instant case seeks clarification of the power of a

Georgia District Court to exercise in personam jurisdic-

tion over a non-resident (in this case, a Californian),

under the provisions of the Georgia Long-Arm Statute

(Ga. Code Ann. §24-113.1).

By affirming the district court’s judgment of dis-

missal of the complaint, the Fifth Circuit held that

there were insufficient contacts to invoke jurisdiction

under subsection (a) of the Georgia Statute, as regards

the breach of contract count thereof, or under subsec-

tion (b) and (c), as regards the tort count thereof.

Recognizing that the instant case lies in the grey

areas of the law, and that the “minimum contacts” test

set out in International Shoe Company v. Washington, 326

U.S. 316, 66 S.Ct. 158 (1945) cannot be applied

mechanically, Petitioner nonetheless submits that the

Fifth Circuit lost sight of the “affiliating cir-

cumstances” in the case at bar and disregarded the

number and quality of contacts present, relying instead

8

upon a restrictive catagorization of these contacts as

“non-commercial”.

In its decision, the Fifth Circuit relied upon this

Court's recent decision in Kulkov. Superior Court of Califor-

nia In and For the City and County of San Francisco, U.S.

, 98 S.Ct. 1690 (1978), wherein a distinction was

purportedly made between commercial and non-

commercial activities for the purposes of determining

the scope of a state’s long-arm statute.

Admittedly, several of the contacts in the instant

case can be denominated “non-commercial”, however,

the Kulko case (supra) and the Georgia statute, as inter-

preted by the Georgia Courts, do not prohibit the exer-

cise of long-arm jurisdiction simply because the case

may contain non-commercial aspects.

The Georgia courts have not interpreted Ga. Code

Ann. §24-113.1 as restrictively as the Fifth Circuit. In

the leading case of Shellenberger v. Tanner, 138 Ga. App.

399, 227 S.E.2d 266 (1976), a three prong test was

proposed, based upon a “fleshing out” of the skeleton of

International Shoe (supra) with the holdings in Hanson v.

Deckla, 357 U.S. 235, 78 S.Ct. 1220 (1958) and McGee v.

International Life Insurance Company, 355 U.S. 220, 73 S.Ct.

199 (1957). Although discussion of §24-113.1 revolved

mainly around subsection (b) of the statute, subsection

(a) was also considered, as in apparent from the court’s

holding that:

9

When a nonresident engages in some activity

with or in the forum, even a significant single

transaction, whether he be physically present

there or not, and as a result business is

transacted or a tortious injury occurs, a juris-

dictional “contract” exists between that non-

resident and the forum. (138 Ga. App. 399, at

408).

Said holding is in discord with the Fifth Circuit's

reliance upon the fact that “[a] contract was not sent

into Georgia by appellee nor was a contract executed,

notarized and sent back to appellee as was the case in

Thorington'.” See: Swafford v. Avakian, 581 F.2d 1224, 1227

(Sth Cir. 1978).

The Fifth Circuit has overlooked the fact that

AVAKIAN’S contract with MRS. SWAFFORD was

purposeful and that it resulted in the consummation of

an act (i.e., the making of contract to marry) beneficial

to AVAKIAN. Under Shellenberger (supra) and Thorington

v. Cash, 494 F.2d 582 (Sth Cir. 1974), the contacts in the

case sub judice certainly satisfied the International Shoe test

as to quantum. Furthermore, AVAKIAN’S act of send-

ing MRS. SWAFFORD funds sufficient to purchase an

automobile provide a commercial aspect to the case.

Therefore, the only remaining question is whether or

not the contacts aforesaid were “reasonable”.

1 Thorington v. Cash, 494 F.2d 582 (Sth Cir. 1974), a case relied

upon by Petitioner in the court below, but which was distinguish-

ed in the Court's opinion.

10

Petitioner submits that the “reasonableness” test is

not required to be applied in non-commercial trans-

actions with the same orthodoxy required in commer-

cial transactions. The net result of the “minimum con-

tacts” should be scrutinized, as well as the nature of the

contacts themselves, which, in the case sub judice, were

the sole and proximate cause of the trip across the Unit-

ed States to California in an automobile paid for by

AVAKIAN. A mere finding that a case is “non-

commercial” cannot dispose of the “reasonableness”

issue.

A final consideration, completely overlooked by the

Fifth Circuit, is that Petitioner’s cause of action lies un-

der the common law and independent of statute in

Georgia?, but does not exist at all in the State of

California’. If jurisdiction over AVAKIAN is not af-

forded to Petitioner, her right to atonement for the in-

jury sustained will be utterly destroyed. This is a factor

which should be, but was not, considered in deter-

mining the reasonableness of a contact with the forum

state.

CONCLUSION

For the reasons stated hereinabove, this Petition for

a Writ of Certiorari should be granted to review the

judgment of the Fifth Circuit Court of Appeals.

2 Spence v. Carter, 33 Ga. App. 279, 125 S.E. 883 (1924)

3. California Civil Code §43.5(d)

11

Respectfully submitted,

Fronk “mM. J loan —

FRANK M. GLEASON

fe wg /). a

JAMES A. SECORD

Counsel for Petitioner,

Nora Swafford

FRANK M. GLEASON

Attorney at Law

JAMES A. SECORD

Associate ‘

102 Howard Street

Rossville, Georgia 30741

Telephone: (404) 866-7977

12

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I have served three (3)

copies of the within and foregoing Petition for Writ of

Certiorari to the United States Court of Appeals for

the Fifth Circuit upon each of the following counsel of

record for Respondent by depositing same in a United

States post office, with first class postage prepaid, ad-

dressed to said counsel of record at their respective post

office addresses, as follows:

HON. J. DOUGLAS McARTHUR

Crossland, Crossland, Caswell and Bell

Attorneys at Law

Guarantee Savings Building

1171 Fulton Mall

Fresno, California 93721

AND

HON. JAMES D. MADDOX

Attorney at Law

Post Office Box 29

Rome, Georgia 30161

This the 14 day of December, 1978.

Fas nk MM ‘ Lhe opr

FRANK M. GLEASON

la

APPENDIX A

OPINION OF THE DISTRICT COURT

(Filed March 17, 1978)

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ROME DIVISION

NORA SWAFFORD,

Plaintiff

versus CA No. C77-152R

DICK AVAKIAN,

Defendant

ORDER

This is an action for damages based on an alleged

breach of contract to marry and fraudulent mis-

representation. Jurisdiction is invoked under 28 U.S.C.

§1332 based on diversity of citizenship. Presently

before the Court are defendant's motion to dismiss and

motion for a protective order.

Among the grounds defendant relies on in his mo-

tion to dismiss is lack of personal jurisdiction. The

defendant is a citizen and resident of California. He

transacts no business in Georgia. The defendant was

not served while physically present in Georgia. Plain-

tiff asserts that this Court may obtain personal

2a

jurisdiction over the defendant through use of the

Georgia Long-Arm Statute, Ga. Code Ann. §24-113.1.

To support her contention that the defendant com-

mitted a “tortious act or omission within this State,”

the plaintiff submitted an affidavit stating that the

defendant made numerous long distance phone calls to

her, while she resided in Georgia, in which he proposed

marriage. Further the plaintiff alleged in her complaint

that the defendant sent letters to her in Georgia con-

cerning his marriage proposal. The plaintiff contends

that these phone calls and letters constitute a “tortious

act” which took place in Georgia thus placing the defen-

dant within this Court’s personal jurisdiction.

The Georgia courts have set out a three fold test to

determine the power of a forum state to exercise

jurisdiction over a nonresident defendant. Shellenberger

v. Tanner, 138 Ga. App. 399 (1976). The nonresident

must purposefully avail himself of the privilege of do-

ing some act or consummating some transaction with

or in the forum. Secondly, the plaintiff must have a

legal cause of action against the nonresident. Finally, if

the first two requirements are met, a “minimum con-

tact” between the nonresident and the forum must ex-

ist. Id. at 404-405, “What is required is a‘minimum con-

tact’ such that its use as the predicate for establishing in

personam jurisdiction does not offend ‘traditional

notions of fair play and substantial justice’ ” id. at 405.

International Shoe Co. v. Washington, 3266 [sic] U.S. 310

(1945).

3a

Assuming for the moment that the present action

satisfies the first two parts of the jurisdictional test, the

Court must determine whether or not the exercise of

its jurisdiction would be “reasonable” considering the

connection of the defendant with Georgia. “The

application of this [minimum contacts] rule will vary

with the quality and nature of the defendant’s activity,

but it is essential in each case that there be some act by

which the defendant purposefully avails itself of the

privilege of conducting activities within the forum

State, thus invoking the benefits and protections of its

laws.” Hanson v. Denckla, 357 U.S. 235, 253 (1958).

In the case at bar, the defendant was not physically

present in Georgia. He conducted no business in

Georgia. Ga. Code §113.1(c). He shipped no product

into or through Georgia. Coe and Payne Co. v. Wood Mosaic

Corp., 230 Ga. 58 (1973); Value Engineering Company v.

Gisell, 140 Ga. App. 44 (1976). The defendant's contact

with Georgia was limited to placing several phone calls

and mailing letters into the state, in which he espoused

his love and affection for the plaintiff and proposed

marriage. This was not the first nor the last proposal of

marriage which the defendant made to the plaintiff.

There is no showing that a contract to marry was

entered into during one of the phone conversations.

Rather the evidence supports the conclusion that these

contacts were part of a blossoming romance rather

than the finalization of an agreement. The existence of

a personal relationship with a nonresident by a resident

is an insufficient basis to support the exercise of

da

Georgia’s long-arm jurisdiction. Concomitant with

such a personal relationship are the exchange of phone

calls and letters. The defendant has not had the re-

quisite “minimum contacts” to enable Georgia to exer-

cise its long-arm jurisdiction consistent with the due

process notions of “fair play” and “substantial justice”.

International Shoe, supra at 316. Defendant’s motion to

dismiss is granted due to the Court’s lack of in per-

sonam jurisdiction over the defendant.

Accordingly, the defendant's motion to dismiss is

GRANTED. The defendant’s motion for a protective

order is now MOOT.

SO ORDERED, this the 16th day of March, 1978.

/s/ Harold S. Murphy

UNITED STATES

DISTRICT JUDGE

5a

JUDGMENT OF THE DISTRICT COURT

(Filed March 17, 1978)

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ROME DIVISION

NORA SWAFFORD

versus CA No. C77-152R

DICK AVAKIAN

JUDGMENT

This action came on for consideration before the

Court, Honorable Harold L. Murphy, United States

District Judge, presiding, and the issues having been

duly tried (heard) and a decision having been duly

rendered,

It is Ordered and Adjudged that plaintiff, NORA

SWAFFORD recover nothing of defendant DICK

AVAKIAN; that defendant recover of plaintiff his costs

of action and that the case is dismissed.

Dated at Rome, Georgia, this 17th day of March,

1978.

BEN H. CARTER

Clerk of Court

ls! Vivian VanLandingham

Deputy Clerk

6a

OPINION OF THE COURT OF APPEALS

(Dated October 16, 1978)

Nora SWAFFORD,

Plaintiff-Appellant,

versus

Dick AVAKIAN,

Defendant-Appellee.

No. 78-1803

Summary Calendar.”

United States Court of Appeals,

Fifth Circuit.

Oct. 16, 1978.

Appeal from the United States District Court for the

Northern District of Georgia.

Before THORNBERRY, GEE and FAY, Circuit

Judges.

PER CURIAM:

The sole question presented in this appeal is whether

the district court was correct in dismissing appellant’s

action for lack of personal jurisdiction.

* Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New

York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

7a

Appellant alleges that she met appellee in California

while she was living there and where a relationship

developed with appellee who proposed marriage to her.

Thereafter, appellant became disenhanted with the

situation and moved to Georgia where her parents

resided. She further alleges that after she arrived in

Georgia appellee made phone calls and wrote letters ex-

pressing his love for appellant and asking appellant to

marry him. Appellant and her three children went back

to California and moved into appellee’s house. Shortly

after her arrival in California, a formal engagement

took place. Two weeks later, appellee terminated the

engagement and appellant and her three children mov-

ed back to Georgia.

Appellant filed a complaint in the United States Dis-

trict Court for the Northern District of Georgia claim-

ing damages arising out of an alleged breach of contract

to marry and for fraudulent misrepresentation.

Appellant sought to serve appellee with process in

California under the Georgia Long-Arm Statute! and

1 Ga. Code Ann. 24-113.1. Personal jurisdiction over nonresidents of

State. — A court of this State may exercise personal jurisdiction

over any nonresident, or his executor or administrator, as to a

cause of action arising from any of the acts, omissions, ownership,

use or possession enumerated in this section, in the same manner

as if he were a resident of the State, if in person or through an

agent, he:

(a) Transacts any business within this State; or

(b) Commits a tortious act or omission within this

State, except as to a cause of action for defamation

of character arising from the act; or

(c) Commits a tortious injury in this State caused by an

act or omission outside this State, if the tortfeasor

regularly does or solicits business, or engages in any

8a

appellee filed a motion to dismiss on the grounds that

the district court lacked personal jurisdiction. This mo-

tion was granted.

In this appeal, appellant alleges that the district court

improperly dismissed the action for lack of personal

jurisdiction under the Georgia Long-Arm Statute.

I. Breach of Contract

The first count of appellant’s complaint is one for

breach of contract to marry. There have been no

allegations by appellant that subsections (a) or (d)* of

Georgia’s Long-Arm Statute are applicable. Instead,

appellant relies upon subsections (b) and (c) to support

both the count for breach of contract and the count for

fraudulent misrepresentation. It is clear, however, that

subsections (b) and (c) deal only with “tortious con-

duct.” To base an action for breach of contract on either

of these two subsections would be erroneous.

Nor can appellant properly allege jurisdiction over

her contract claim on the basis of subsection (a) which

contemplates the transaction of business within the

other persistent course of conduct, or derives sub-

stantial revenue from goods used or consumed or

services rendered in this State; or .

(d) Owns, uses or possesses any real property situated

within this State.

2 Nothing on the record would support “asp ong under sub-

section (d), dealing with real property, for either the contract

count or the tort count.

9a

state. Activity under subsection (a) must be more ex-

tensive than activity which will support a finding of a

“contract” with Georgia for the purpose of exercising

jurisdiction in a tort claim under subsection (b),

Shellenberger v, Tanner, 138 Ga.App, 399, 227 S.E.2d 266

(1976), In interpreting subsection (a), this Court held in

Pennington v, Toyomenka, Inc,, 512 F.2d 1291 (Sth Cir,

1975) that acts of transmitting communications from

New York to Georgia by means of telephone and mail

and sending goods into Georgia, paid by checks drawn

on Atlanta banks, were not sufficient to acquire

jurisdiction, Id. at 1292. In our case, the only contacts

appellee was alleged to have had with Georgia were

several phone calls and letters from California to

appellant in Georgia. These contacts are insufficient

for jurisdiction under subsection (a) as set out in Pen-

nington,

Il, Fraudulent Misrepresentation

The second count of appellant’s complaint is a tort

count for fraudulent misrepresentations allegedly

made by appellee to appellant regarding his intention to

marry her, Subsections (b) and (c) both deal with tor-

tious conduct.4

3 We need not resolve the question of whether a contract to

marry is a business transaction for purposes of subsection (a), for

the requisite contacts with the State of Georgia for jurisdiction

under this subsection are clearly not present in this case.

4 In Coe & Payne Company v. Wood-Mosaic Corporation, 125 Ga.App.

845, 189 S.E.2d 459 (1972) the Georgia Court of Appeals con-

sidered the applicability of subsection (c) to certain activities which

took place prior to the amendment by the legislature which added

10a

In interpreting subsection (b), the Court of Appeals

of Georgia has set out a three-fold test:

1. The nonresident must purposely avail

himself of the privilege of doing some act or

consummating some transaction with or in

the forum,

2. The plaintiff must have alegal cause of ac-

tion,

3. If the first two requirements are met, the

exercise of jurisdiction over the nonresident

must be reasonable.

Shellenberger v. Tanner, 138 Ga.App. at 407, 227 S.E.2d at

272. The court in Shellenberger stated that “minimum

contact” is required such that its use as the predicate

for establishing personal jurisdiction does not offend

“traditional notions of fair play and substantial justice.”

Id. In other words, the exercise of jurisdiction based

upon minimum contact must be reasonable, This test

for reasonableness has been frequently analogized to

subsection (c), It held that subsection (c) could not be applied

retroactively, It further held that subsection (b) did not cover

extraterritorial tortious conduct causing injury in Georgia. The

Supreme Court of Georgia granted certiorari but did not pass on

the issue of the retroactivity of subsection (c), Instead, it reversed

the lower court's interpretation of subsection (b) saying: ".. . a

‘tortious act’ is acomposite of both negligence and damage, and if

damage occurred within the state then the tortious act occurred

within the state within the meaning of subsection (b) of the Long

Arm Statute.” 230 Ga. 58 at 60, 195 S.W.2d 399 at 400-401,

lla

that which is applicable in a forum non conveniens

issue.5 Id.

Clearly, to make appellee defend an action in

Georgia, when he has never traveled to Georgia and

where his only contact with Georgia were several

phone calls and letters, would be unreasonable,

Appellant lived in California, moved to Georgia and

then moved back to California to live with appellee.

The engagement and termination of the engagement

took place in California. We believe the district court

had ample grounds for finding that jurisdiction would

not be reasonable under the facts alleged in this case.

5 Likewise, there is no jurisdiction under subsection (c), Referr-

ing to subsection (c), the court in Shellenberger used a

reasonableness test and said;

..» For example, it is “reasonable”to subject a nonresi-

dent to suit in Georgia if, due to some purposeful activity

here, he causes a tortious injury toa resident and if in addi-

tion he “regularly does or solicits business, or engages in

any other persistent course of conduct, or derives sub-

stantial revenues from goods used or consumed or serv-

ices rendered in this State.” Code Ann, § 24-113,1(c), . .

It is rather in those cases wherein the sole “contact”

between the nonresident and the forum is the activity

giving rise to the resident plaintiff's cause of action (and

in those in which the nonresident’s activities with or in

the forum exceed a single transaction but do not rise to

the level of the legal “fiction” standards) that the ques-

tion of “reasonableness” in the exercise of jurisdiction

takes on true independent significance.

Shellenberger v. Tanner, 138 Ga.App. at 405-406, 227 S.E.2d at 272-

273.

If anything, it would appear to us the standard of

“reasonableness” under subsection (c) would be stricter than that

in subsection (b). See, e.g., Thoringtonv, Cash, 494 F.2d 582, 587 (Sth

Cir, 1974), We need not decide what parameters of

“reasonableness” would be under subsection (c) since under any

test of reasonableness, jurisdiction would be improper in this case.

12a

Appellant has relied on the case of Thorington v. Cash,

494 F.2d 582 (Sth Cir. 1974), to support appellant's

position. In Thorington, appellant alleged that letters

were sent and phone calls were made by appellee to

appellant in Georgia and that on certain occasions

appeliee informed appellant he was calling from within

the state of Georgia. Furthermore, the partnership

agreement was mailed by appellee to appellant in

Georgia who then executed the agreement, had it

notarized and returned it by mail to appellee in Florida.

This Court held in Thorington that appellee’s contacts

were sufficient to satisfy both subsection (b) of the

Georgia Long-Arm Statute and the “minimum con-

tacts” requirement of the Due Process Clause.

However, this Court in Thorington, made it clear that its

holding was limited “to the application of subsection (b)

(tortious act within) to conduct which occurs prior to

July 1, 1970, the effective date of subsection (c) (act

without/tortious injury within).” Id. at 586. The Court

stated:

We do not determine whether Cash’s contacts

with Georgia would be sufficient to satisfy the

seemingly more restrictive requirements of

subsection (c) [footnote omitted] (conduct

without/tortious injury within—post-1970)

since we are Erie-bound by the Georgia Court

of Appeals undisturbed ruling in Coe & Payne

that subsection (c) does not apply retro-

actively.

Id. at 587.

13a

Even if we were to disregard Thorington’s limited

applicability, there were more contacts in Thorington

than in the case before us. For instance, no allegation

was made in this case that appellee was ever in the state

of Georgia as was the case in Thorington. A contract was

not sent into Georgia by appellee nor was a contract ex-

ecuted, notarized and sent back to appellee as was the

case in Thorington.

Furthermore, Thorington involved a commercial situa-

tion and is thus different from the non-commercial

case before us. The recent United States Supreme

Court decision in Kulko v. Superior Court of California In and

For the City and County of San Francisco, U.S. , 98

S.Ct. 1690, 56 L.Ed.2d 132 (1978) made a distinction

between commercial and non-commercial activity for

purposes of determining the scope of astate’s long-arm

statute.° As in Kulko, this is anon-commercial situation.

6 In Kulko v. Superior Court of California In and For the City and County of

San Francisco, U.S. , 98S.Ct. 1690, 56 L.Ed.2d 132 (1978)

the husband and wife resided in New York, separated, and the

wife then moved to California. Under the separation agreement

signed in New York, the husband was tokeep the children most of

the year and was to send support checks to the wife’s residence

during the time the children were to be with the wife (Christmas,

Easter and summer vacations). Both children eventually moved to

California with their mother. The wife filed suit against the hus-

band in California seeking an increase in child support payments.

The California Supreme Court upheld lower-court deter-

minations adverse to appellant concluding that California had per-

sonal jurisdiction over appellant. The United States Supreme

Court held that the exercise of jurisdiction by California over

appellant would violate the due process clause of the Fourteenth

Amendment. The Court followed Hanson v. Denkla, 357 U.S. 235,

78S.Ct. 1228, 2 L.Ed.2d 1283 (1958) stating that the unilateral ac-

14a

The act of sending love letters and making phone calls

cannot be said toconnote an intent to obtain nor expec-

tancy of receiving a corresponding benefit from

Georgia that would make fair the assertion of that

state’s jurisdiction over appellee.

Accordingly, we find the district court was correct in

holding that the courts of Georgia have no personal

jurisdiction over appellee in California.

AFFIRMED.

tivity of those who claim some relationship with a non-resident

defendant cannot satisfy the requirement of contact with the

forum state and that the defendant must have purposefully

availed himself of the privilege of conducting activities within the

forum state. The Court in Kulko further stated that a father who

agrees to allow his children to spend more time in California than

was required under a separation agreement, cannot be said to have

availed himself of the benefits and protection of California laws.

98 S.Ct. at 1698. The Supreme Court stated that the fact that the

husband had previously been in California on several occasions did

not subject him to jurisdiction in California. The circumstances in

Kulko would render unreasonable California’s assertion of per-

sonal jurisdiction. There was no claim that appellant had caused

physical injury on either property or persons within the state of

California.

_., the mere act of sending a child to California to live

with her mother is not a commercial act and connotes no

intent to obtain nor expectancy of receiving a

corresponding benefit in the State that would make fair

the assertion of that State’s judicial jurisdiction.

15a

JUDGMENT OF THE COURT OF APPEALS

(Entered October 16, 1978)

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 78-1803

Summary Calendar

D. C. Docket No. C77-152R

NORA SWAFFORD,

Plaintiff-Appellant,

versus

DICK AVAKIAN,

Defendant-Appellee.

Appeal from the United States District Court for the

Northern District of Georgia

Before THORNBERRY, GEE andFAY, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for

the Northern District of Georgia, and was taken under

submission by the Court upon the record and briefs on

file, pursuant to Rule 18;

l6a

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment

of the said District Court in this cause be, and the same

is hereby, affirmed;

It is further ordered that plaintiff-appellant pay to

defendant-appellee the costs on appeal to be taxed by

the Clerk of this Court.

October 16, 1978

Issued As Mandate: Nov. 7, 1978