Appendix — Flowers Industries, Inc. v. Brown

Al

APPENDIX

APPENDIX “A”

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

WESTERN DIVISION

No. WC80-166-LS-P

PETE HARDIN BROWN and

MOTT’S INC. OF MISSISSIPPI,

Plaintiffs,

Vv.

FLOWERS INDUSTRIES, INC.,

JERRY KRALIS, AND KRALIS

BROS. FOODS, INC.,

Defendants.

MEMORANDUM ORDER

The court has before it defendants’ motion to dismiss

for lack of jurisdiction over the person. Rule 12(b) (2),

F. R. Civ. P. For the reasons set out below, the court

finds that defendants’ motion is well taken.

Plaintiffs Pete Harding Brown (Brown) and Mott’s

Inc. of Mississippi (Mott’s) charge defendants with defama-

tion, tortious interference with plaintiffs’ business relation-

ships, and violations of the Sherman Act, 15 U.S.C. §1,

et seq.

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Defendant Flowers Industries, Inc. (Flowers) is a

Delaware corporation with its principal place of business

in Thomasville, Georgia. Defendant Kralis Bros. Food,

Inc. (Kralis Foods) is an Indiana corporation with its

principal place of business in Mentone, Indiana. Defen-

dant Jerome Kralis is an adult resident citizen of Mentone,

Indiana, and is president of Kralis Foods.

Plaintiffs allege that on or about October 15, 1979,

Jerome Kralis, acting as agent for Kralis Foods and

Flowers, defamed plaintiffs during a long-distance tele-

phone conversation placed in Mentone, Indiana, to the Of-

fice of the United States Attorney in Oxford, Mississippi.

Service of process was obtained through the Mississippi

Secretary of State pursuant to §13-3-57, Miss. Code Ann.

(1972).

Defendants have moved for dismissal on the grounds

that the exercise of in personam jurisdiction by this court

would violate defendants’ right to due process under the

Fourteenth Amendment. In support of their motion, de-

fendants have filed affidavits which tend to establish the

following facts.

I, FLOWERS INDUSTRIES, INC.

Flowers Industries, Inc., is a holding company, and its

relationship to Kralis Foods is that of stockholder, Flowers

is not qualified to do business in Mississippi, owns no

property here, has no employees or agents here, and main-

tains no bank accounts or telephone listings here. It ap-

pears that Flowers has no contacts at all with Mississippi.

II. KRALIS BROS. FOODS, INC.

Likewise, Kralis Foods is not qualified to do business

in Mississippi. Kralis Foods is in the business of buying

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and slaughtering spent hens from ‘commercial egg pro-

ducers for processing and resale to the manufacturers of

various food products. Kralis Foods has neither purchased

spent hens in Mississippi nor sold its processed product to

buyers in Mississippi. Kralis Foods maintains processing

plants in Indiana and Illinois, and not in Mississippi. Kralis

Foods has no employees or agents in Mississippi, and it

owns no property or bank accounts here.

III. JEROME KRALIS

Jerome Kralis has never been a Mississippi resident,

and he owns no property or bank accounts here. Jerome

Kralis’ only visit to Mississippi occurred over eleven years

ago when he spent two days of his vacation in Mississippi.

In response to the affidavits filed by defendants, plain-

tiffs filed identical affidavits on behalf of Brown and

Mott’s. Plaintiffs’ affidavits state that Flowers operates

a retail outlet known as Flower’s Thrift Shop located at 711

South Gloster Street, Tupelo, Mississippi. Other than this

single specific statement of facts, all other statements re-

garding defendants’ activities in Mississippi as set out in

plaintiffs’ affidavits are mere conclusions, unsupported by

specific averments of fact.

The third affidavit of Frederick E. Cooper, filed by

defendants in response to plaintiffs’ affidavits described

above, states that Flowers Thrift Shop, located at 711 South

Gloster Street, Tupelo, Mississippi, is not owned by Flowers,

but rather is owned by Hardin’s Bakery, Inc., of Tuscaloosa,

Alabama, a corporation in which Flowers owns stock, De-

fendants supplied documentary evidence, including an ap-

plication for privilege license and a privilege tax license

receipt, which support Cooper’s statement by disclosing

that Hardin Bakery was the ap; icant for the license

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granted Flowers Thrift Shop, 711 South Gloster, Tupelo,

Mississippi. Thus, plaintiffs have failed to prove that De-

fendants Flowers, Kralis Foods, and Jerome Kralis have

purposefully availed themselves of any benefits, privileges,

or protections afforded by the State of Mississippi.

In light of the facts set out above, defendants seek

dismissal of this cause on the grounds that there exist no

“minimum contacts” between any of the three defen-

dants and Mississippi, the forum state, and, therefore, the

exercise of in personam jurisdiction by this court we ‘ld

offend “traditional notions of fair play and substantial

justice.” We agree.

We assume, without deciding, that the telephone call

placed by Jerome Kralis from his office in Mentone,

Indiana, to the Office of the United States Attorney in

Oxford, Mississippi, was sufficient to come within the ambit

of §13-3-57, Miss. Code Ann. (1972), and authorize service

of process upon Jerome Kralis and perhaps Kralis Foods

based upon commission of a tort in whole or in part in

Mississippi. In addition to the requirements of §13-3-57,

Miss. Code Ann. (1972), the Due Process Clause of the

Fourteenth Amendment requires that the assertion of in

personam jurisdiction over a nonresident be supported by

certain “minimum contacts” between the nonresident and

the forum state. International Shoe Co. v. Washington, 326

U.S. 310, 90 L.Ed. 95 (1945). Thus, the Due Process Clause

“does not contemplate that a state may make binding a

judgment in personam against an individual or corporate

defendant with which the state has no contacts, ties, or

relations.” International Shoe Co. v. Washington, 326

US., at 319, 90 L.Ed. 95. The determination of whether

these “minimum contacts” exist is not susceptible to de-

cision by some bright line formula, but necessarily re-

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quires an evaluation of the facts and circumstances of each

case on an individual basis.

Here, the only contact between any of the three

defendants and the forum state consists of a single long-

distance telephone call. Although the cause of action for

which suit is brought arose from this converation, the court

is unable to conclude that this single contact with Missis-

sippi is sufficient to subject defendants to in personam

jurisdiction here. The lack of regular, purposeful activity

within Mississippi indicates that defendants have not pur-

posefully availed themselves of the protection and bene-

fits of Mississippi’s laws. Worldwide Volkswagen Corp. v.

Woodson, 444 U.S. 286, 62 L.Ed.2d 490 (1980).

In light of all the circumstances, the court is of the

opinion that requiring defendants to defend an in per-

sonam action in Mississippi would offend traditional notions

of fair play and substantial justice. Defendants’ motion

will be granted.

Accordingly, it is

ORDERED:

That defendants’ motion to dismiss for lack of in

personam jurisdiction is hereby GRANTED.

That this cause is hereby dismissed without prejudice.

SO ORDERED this 27th day of July, 1981.

/s/ L. J. Senter, Jr.

United States District Judge

As

APPENDIX ‘“B”’

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF MISSISSIPPI

WESTERN DIVISION

OXFORD, MISSISSIPPI

July 29, 1981

NO. WC80-166-LS-P

PETE HARDING BROWN and MOTT’S INC.

OF MISSISSIPPI

Vs.

FLOWERS INDUSTRIES, INC., JERRY KARALIS

and KRALIS BROS. FOODS, INC.

MEMORANDUM

TAKE NOTICE that ORDER granting defendants’ motion

to dismiss for lack of in personam

jurisdiction and dismissing cause

without prejudice signed by Judge

Senter on July 27, 1981, has been en-

tered in Civil Order Book # 34,

pages 279-280.

Norman L, Gillespie, Clerk

By: /s/ Sherry J. Hunter

Sherry J. Hunter,

Deputy Clerk

TO:

Hon. John L. Bailey

Hon. Jackson H. Ables, III

AT

APPENDIX ‘“C’”’

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

WESTERN DIVISION

NO. WC 80-166-LS-P

PETE HARDIN BROWN and MOTT’S, INC.

OF MISSISSIPPI,

Plaintiffs,

Vv.

FLOWERS INDUSTRIES, INC., et al.,

Defendants.

ORDER

The court has before it plaintiffs’ motion under Rule

59, F. R. Civ. P., to reconsider its order entered July 27,

1981, dismissing this cause for lack of in personam juris-

diction. The court has reviewed the voluminous docu-

mentary evidence submitted in support of plaintiffs’ mo-

tion and in opposition thereto and is of the opinion that

plaintiffs, having inadequately dealt with the “due dili-

gence” issue, are not entitled to judgment on their motion.

Because the court makes this finding, it need not reach

other of defendants’ seemingly meritorious objections and

plaintiffs’ responses thereto.

Accordingly, it is

ORDERED:

That plaintiffs’ motion to vacate the court’s order of

July 27, 1981, is hereby DENIED.

This 19th day of October, 1981.

/s/ L. J. Senter, Jr.

United States District Judge

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APPENDIX “D”

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 81-4451

PETE HARDING BROWN AND MOTT’S INC.

OF MISSISSIPPI

Appellants

versus

FLOWERS INDUSTRIES, INC., JERRY KRALIS,

AND KRALIS BROS. FOODS, INC.

Appellees

MOTION TO DOCKET THE APPEAL

AND TO DISMISS

COME NOW Flowers Industries, Inc., Jerome G.

Kralis, and Kralis Bros. Foods, Inc., appellees-movants, by

counsel, and move respectfully that this Court docket the

appeal and enter its Order dismissing same upon the fol-

lowing ground:

The appeal is not timely because:

(a) The order appealed from, dated July 27, 1981,

was entered of record on July 29, 1981.

(b) The appellants’ notice of appeal was not filed

until October 23, 1981, more than eighty-seven days after

entry of the order appealed from, in violation of Rule 4(a),

Federal Rules of Appellate Procedure.

(c) The appellants’ Rule 59(e) motion filed August

5, 1981, to vacate the order of dismissal (dated July 27,

1981), though perhaps timely, was not properly made under

Ad

Fed, R, Civ, P., 7, 8, 9, 11 and 59 and did not terminate the

running of the time for filing a notice of appeal, in that:

(1) the appellants failed on at least two separate

occasions of opportunity to make the necessary show-

ing to the district court of “due diligence” on their

part, a necessary predicate and a condition precedent to

seeking the Court's alteration or amy idment of the

order of July 27, 1981, upon the asserted ground of

“newly discovered evidence”;

(2) appellants did not state to the district court with

particularity the grounds for their motion to vacate, as

required by Fed, R, Civ, P., 7(b);

(3) appellants did not proffer any “newly discovered

evidence” to substantiate such allegations as their mo-

tion vaguely made;

The motion was therefore improper and a nullity to

toll the appeal time.

(d) The district court's separate order of October 9,

1981, denying the motion to vacate, is not appealable as

such and the notice of appeal is consequently invalid as

and to the extent that it complains of such order, in that:

(1) the order of October 9, 1981, is one of a nature

from which an appeal does not lie;

(2) though the order is not appealable, neither is that

an order reviewable for an abuse of discretion by

the district court;

(3) review of any Rule 59 ruling is limited to inquiry

into an abuse of discretion by the district court;

(4) the district court had no discretion as a matter

of law to entertain the Rule 59(e) motion because

it was improperly made, thus there is no discretionary

conduct for appellants to complain of or for the Court

of Appeals to review,

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(e) The appeal is a frivolous attempt to relitigate in

this Court the motion to vacate, as the Brief for Appel-

lants undeniably shows.

WHEREFORE, appellants having failed to perfect their

appeal within the time required by law and having other-

wise failed to take such actions under the Rules as would

properly suspend the running of the time within which to

file their notice of appeal, the appeal is untimely and this

Court has no jurisdiction of it, The appellees pray re-

spectfully that the appeal be docketed and that this Hon-

orable Court order the same dismissed, at the cost of ap-

pellants,

Respectfully submitted,

Flowers Industries, Inc., Jerry Kralis

and Kralis Bros, Foods, Inc., Ap-

pellees

/s/ Jackson H, Ables, III

Of Counsel

Daniel, Coker, Horton and Bell, P.A,

Post Office Box 1084

Jackson, Mississippi 39205

(601) 969-7607

CERTIFICATE

I, Jackson H, Ables, ITI, of counsel for appellees, do

hereby certify that I have this day, via United States

Postal Service, postage paid, mailed a true and correct

copy of the above and foregoing Motion to Docket the

Appeal and to Dismiss to Charles C, Finch, Esq., P. O,

Drawer 568, Batesville, Mississippi 38606,

This, the 11th day of January, 1982,

/8/ Jackson H. Ables, III

Jackson H, Ables, III

All

APPENDIX “E”

(Filed February 10, 1982)

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No, 81-4451

PETE HARDING BROWN and MOTT’S

INC OF MISSISSIPPI,

Plaintiffs-Appellants,

versus

FLOWERS INDUSTRIES, INC., A Delaware Corporation,

JERRY KRALIS and KRALIS BROTHERS FOOD, INC.,,

An Indiana Corporation,

Defendants-Appellees,

Appeal from the United States District Court for the

Northern District of Mississippi

Before BROWN, POLITZ and WILLIAMS, Circuit Judges.

BY THE COURT:

IT IS ORDERED that appellee's motion to dismiss

appeal is denied.

/8/ Mlegible

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APPENDIX “F"”

Pete Harding BROWN and Mott's Inc.

of Mississippi, Plaintiffs-Appellants,

Vv.

FLOWERS INDUSTRIES, INC., A Delaware Corporation,

Jerry Kralis, and Kralis Brothers Foods, Inc.,

An Indiana Corporation,

Defendants-Appellees,

No, 81-4451,

United States Court of Appeals,

Fifth Circuit.

Sept. 22, 1982.

Suit was dismissed by the United States District Court

for the Northern District of Mississippi at Oxford, L.J.

Senter, Jr., J., on ground of lack of personal jurisdiction,

Plaintiffs appealed. The Court of Appeals, Alvin B, Rubin,

Circuit Judge, held that where individual nonresident de-

fendant initiated telephone call to Mississippi and allegedly

committed intentional tort, and injurious effect of tort,

if one was committed, fell in Mississippi, which defendant

could easily have foreseen, and where injury was felt

entirely by Mississippi resident and Mississippi corporation

and where only two witnesses likely to be called as to con-

tent of telephone call included such nonresident defendant

and a resident of Mississippi, and all witnesses to effect

of call resided in Mississippi, due process clause did not

preclude personal jurisdiction over nonresident defendants,

Reversed and remanded,

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1. Federal Courts (Key) 281

Diversity jurisdiction permits nonresident to seek fed-

eral forum to avoid partisanship that state courts might

show for their own citizens, but also permits resort to

federal court even by residents of forum state to assert

claim against nonresident for relief that state court could

afford. 28 U.S.C.A. § 1332.

2. Constitutional Law (Key) 305 (5)

Federal Courts (Key) 76, 417

In diversity action, federal court enjoys jurisdiction

over nonresident defendant to extent permitted by long-

arm statute of forum state, but defendant must be amena-

ble to suit under statute, which is requirement that is by

law of forum state, and assertion of jurisdiction over de-

fendant must be consistent with due process clause of

Fourteenth Amendment, which is requirement controlled

by federal law. Fed. Rules Civ. Proc. Rule 4(d) (7), (e),

28 U.S.C.A. § 1332; Miss, Code 1972, § 13-3-57; U.S.C.A.

Const. Amend. 14.

3. Courts (Key) 12(2)

The “minimum contacts” test of jurisdiction applies

to individuals as well as to corporations, and Mississippi

long-arm statute applies to the individual as well as to cor-

porate defendants. Miss. Code 1972, § 13-3-57; U.S.C.A.

Const. Amend. 14.

4. Federal Courts (Key) 34

Party invoking jurisdiction of federal court bears bur-

den of establishing jurisdiction over nonresident defendant.

Miss. Code 1972, § 13-3-57; 28 U.S.C.A. § 1332.

5. Federal Courts (Key) 34

Where federal district court decided defendants’ mo-

tion to dismiss, for lack of jurisdiction, solely on basis of

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affidavits, plaintiffs were required only to present prima

facie case for personal jurisdiction. 28 U.S.C.A. § 1332;

Fed. Rules Civ. Proc. Rule 12(b) (2), 28 U.S.C.A.

6. Federal Civil Procedure (Key) 1829

On motion to dismiss for lack of personal jurisdiction,

allegations of complaint, except as controverted by defen-

dants’ affidavits, must be taken as true. Fed. Rules Civ.

Proc. Rule 12(b) (2), 28 U.S.C.A.

7. Federal Courts (Key) 34

On motion to dismiss for lack of personal jurisdiction,

conflicts between some facts alleged by plaintiffs and those

alleged by defendants in their affidavit would be resolved

in plaintiffs’ favor for purposes of determining whether

prima facie case for in personam jurisdiction had been es-

tablished. 28 U.S.C.A. § 1332; Miss. Code 1972, § 13-3-57;

Fed. Rules Civ. Proc. Rule 12(b) (2), 28 U.S.C.A.

8. Courts (Key) 12(2)

Though personal jurisdiction was predicated on one

long-distance telephone call that was alleged to constitute

tort committed “in whole or in part” in Mississippi, tele-

phone call, by which it was alleged that a defendant de-

famed plaintiffs and caused them injury in Mississippi,

came within ambit of Mississippi long-arm statute. Miss.

Code 1972, § 13-3-57.

9. Courts (Key) 12(2)

Both by its language and by interpretation, Mississippi

long-arm statute includes in its reach defendants who com-

mit single tort, and it is not necessary that alleged tort-

feasor have been present in state if he causes injury in

Mississippi. Miss. Code 1972, § 13-3-57; Fed. Rules Civ.

Proc. Rule 12(b) (2), 28 U.S.C.A.

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10. Constitutional Law (Key) 305(5)

Courts (Key) 12(2)

Number of contacts with forum state is not by itself

determinative as to whether due process clause permits

subjecting nonresident defendants to in personam jurisdic-

tion, and what is more significant is whether contacts sug-

gest that nonresident defendant purposefully availed him-

self of benefits of forum state. Miss. Code 1972, § 13-3-57;

U.S.C.A. Const. Amends. 5, 14.

11. Constitutional Law (Key) 305(5)

Courts (Key) 12(2)

Two factors revelant in determining whether court’s

exercise of personal jurisdiction comports with due process

are interest of state in providing forum for the suit and

relative conveniences and inconveniences to the parties.

Fed. Rules Civ. Proc. Rule 12(b) (2), 28 U.S.C.A.; U.S.C.A,

Const. Amend. 14.

12. Constitutional Law (Key) 305(5)

Federal Courts (Key) 76

Where individual nonresident defendant initiated tele-

phone call to Mississippi and allegedly committed inten-

tional tort, and injurious effect of tort, if one was com-

mitted, fell in Mississippi, which defendant could easily

have foreseen, and where injury was felt entirely by Missis-

sippi resident and Mississippi corporation and where only

two witnesses likely to be called as to content of telephone

call included such nonresident defendant and a resident

of Mississippi, and all witnesses to effect of call resided in

Mississippi, due process clause did not preclude personal

jurisdiction over nonresident defendants. Fed. Rules Civ.

Proc. Rule 12(b) (2), 28 U.S.C.A.; U.S.C.A. Const. Amend.

14; Miss. Code 1972, § 13-3-57.

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Appeal from the United States District Court for the

Northern District of Mississippi.

Before BROWN, RUBIN and REAVLEY, Circuit

Judges.

ALVIN B. RUBIN, Circuit Judge:

This suit was dismissed by the district court for want

of jurisdiction on the basis that due process would be

denied by assuming jurisdiction over a nonresident defen-

dant whose sole contact with the forum state was the

making of a single defamatory telephone call to a person

in that state. Concluding that, under the facts presented,

due process permits invocation of jurisdiction over a non-

resident who commits in whole or in part a single tort

in a state, we reverse.

I

[1] Seeking the benefit of diversity jurisdiction, 28

U.S.C, § 1332 (1976), which permits a resident of the forum

state to resort to federal court to assert a claim against

a nonresident for relief that a state court afford,’ Pete

Harding Brown, a Mississippi resident, and Mott’s Inc. of

Mississippi, a Mississippi corporation with its principal

place of business in Mississippi, sued Flowers Industries,

Inc. (“Flowers”), a Delaware corporation with its principal

place of business in Georgia; Kralis Brothers Foods, Inc,

1. Diversity jurisdiction permits a nonresident to seek a

federal forum to avoid the partisanship that state courts might

show R4 their own citizens. Pease v. Peck, 59 U.S. (18 sige

rye ae 15 L.Ed. 518, 520 (1868) ; Aerojet-General Corp.

at F.2d 710, 716 n. 6 (Sth Cir.), cert. denied, 423 U.S.

$08, a S.Ct. 210, 46 L.Ed.2d a (1975). The diversity statute,

however ts resort to federal court even by a resident,

the processes

Fo. Smith v. Met-

629 F2d 57, 761 n. 7 (2d

Al7

(“Kralis Brothers”), an Indiana corporation with its prin-

cipal place of business in Indiana; and Jerry Kralis

(“Kralis”), an Indiana resident and president of Kralis

Brothers. None of the defendants is qualified to do busi-

ness in Mississippi.

The plaintiffs alleged that the defendants conspired

to and did cause them economic and other injuries, and,

although relying on diversity jurisdiction, that the defen-

dants also violated the Sherman Antitrust Act, 15 U.S.C.

§§ 1-7, and the Robinson-Patman Act, 15 U.S.C. §§ 13-13b,

2la. This was accomplished, they contend, in October

1979 when Kralis made a defamatory telephone call from

Indiana to the United States Attorney in Oxford, Missis-

sippi. The plaintiffs allege that the conspiracy and tele-

phone call caused them to lose the chance to obtain a

$4 million loan from the Farmers Home Administration.

Service of process was made under the Mississippi

longarm statute, Miss. Code Ann. § 13-3-57 (Cum. Supp.

1981).2, The defendants moved to dismiss the action for

2. Section 13-3-57 provides:

SERVICE WHEN DEFENDANT IS NONRESIDENT DOING

BUSINESS IN STATE—APPOINTMENT OF SECRETARY

OF STATE AS AGENT.

Any nonresident person, firm, general or limited partner-

ship, or any foreign or other corporation not qualified under

the constitution and laws of this state as to do business

herein, who shall . . . commit a tort in whole or in part in

this state against a resident or nonresident of this state...

shall by such act or acts be deemed to be doing business

in Mississippi. Such act or acts shall be deemed equivalent

to the appointment such nonresident of the secretary

of the of ppi, or his successor or successors in

office, to be the true and lawful attorney or agent of such

nonresident upon whom all lawful Bg gow served in

a or a from such

or or arising from or growing out of such . . . tort,

as an ent thereto, by any such nonresident or his,

or its agent, servant or employee.

(Continued on following page)

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lack of personal jurisdiction. Fed. R. Civ. P. 12(b) (2).

This motion was granted by the district court based on

its findings that (1) Flowers had “‘no contacts at all with

Mississippi”; (2) Kralis Brothers had neither purchased

nor sold products in Mississippi, and had no employees

or agents there; and (3) Kralis had no contacts with

Mississippi other than the October 1979 telephone call

he made to the United States Attorney in Mississippi and

a two-day visit to the state more than twelve years ago.

The district court reasoned: “We assume, without de-

ciding, that the telephone call placed by Jerome Kralis

from his office in Mentone, Indiana, to the Office of the

United States Attorney in Oxford, Mississippi, was suffi-

cient to come within the ambit of § 13-3-57, .. . and autho-

rize service of process upon [Kralis] and perhaps [Kralis

Brothers] based upon commission of a tort in whole or

in part in Mississippi.... [T]he court is unable to con-

clude that this single contact with Mississippi is sufficient

to subject defendants to in personam jurisdiction there.”

Footnote continued—

The .. . committing of such tort in this state, shall be

deemed to be a signification of such nonresident’s a ment

that any process against it or its representative which is so

served upon the secretary of state shall be of the same

legal force and effect as if served on the nonresident at its

p cipal place of business in the state or country where it

emiyan tn and according to the law of that state or

coun

Service of any process herein provided for to be made

upon the secretary of state shall made in like manner

and procedure, inclusive of notice of service, and with

the same force and effect, as is provided by law for service

on nonresident motorist defendants under [ . Code Ann.]

section 13-3-63, provided, however, that service of process

may be had in any county of the state where the detindente,

or any of them, may be found.

The provisions of this section shall likewise ap to

any person who is a nonresident at the time any action or

ahs y ome is commenced against him even though said person

was a — at the time any action or proceeding accrued

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The defendants admit that Kralis made the telephone call

although they dispute the plaintiffs’ contention that the

message was defamatory. They also admit he was acting

as an officer of Kralis Brothers but they deny he was

an agent or employee of Flowers. They submitted affi-

davits, not adequately countered, saying that, although

Flowers is a holding company that owns stock in Kralis

Brothers, Kralis is neither an officer nor an employee

of Flowers and was not acting as an agent of Flowers

when he made the telephone call.

II

{[2, 3] In a diversity action a federal court enjoys

jurisdiction over a nonresident defendant to the extent

permitted by the long-arm statute of the forum state.

Quasha v. Shale Dev. Corp., 667 F.2d 483, 485-86 (5th Cir.

1982); Moore v. Lindsey, 662 F.2d 354, 357-58 (5th Cir.

1981); Fed. R. Civ. P. 4(d) (7), (e); 4C. Wright & A. Miller,

Federal Practice and Procedure § 1115, at 470 (1969).

Two tests must be met before a state statute can confer

jurisdiction over a nonresident defendant. First, the de-

fendant must be amenable to service under the statute,*

a requirement that is by the law of the forum state.‘

Second, assertion of jurisdiction over the defendant must

be consistent with the due process clause of the fourteenth

amendment,® a requirement that is controlled by federal

3. Walker v. Newgent, 583 F.2d 163, 166 (5th Cir. 1978),

cert, denied, 441 U.S. 906, 99 S.Ct. 1994, 60 L.Ed.2d 374 (1979):

2 J. Moore & J. Lucas, Moore’s Federal Practice { 4.41-1[3], at

4-443 (2d ed. 1982).

4. Terry v. Raymond Int'l, Inc., ese F.2d 398, 401 (5th Cir.

1981), 1. Gented. US. 2 S.Ct. 1978, 72 L.Ed.2d

443 4982); 4c, Wright Py A. Miller, ‘Federal Practice and Pro-

cedure § 1075, at 313, 316 (1969).

5. Oswalt v. Scripto, Inc., 616 F.2d 191, 196 (5th Cir, 1980);

ager Age ya age ne, v, Cousteau, 495 F.2d 483, 489 (5th

Cir. fh oore & J. Lucas, Moore’s Federal Practice

f ‘aicit ], at 3, Me 8 (2d ed. 1982).

A20

law. Due process requires that a nonresident defendant

have “certain minimum contacts” with the forum state

“such that the maintenance of the suit does not offend

‘traditional notions of fair play and effective justice,’ ”’

or that he perform some act “by which [he] purposefully

avails [him]self of the privilege of conducting activities

within the forum State, thus invoking the benefits and

protections of its laws,’”* before the forum may extend

its long-arn: to embrace him.’

[4-6] The party invoking the jurisdiction of a federal

court bears the burden of establishing the court’s jurisdic-

tion over a nonresident defendant. Southwest Offset, Inc.

v. Hudco Publishing Co., 622 F.2d 149, 152 (5th Cir. 1980)

(per curiam) ; Thorington v. Cash, 494 F.2d 582, 584 n. 4 (5th

Cir. 1974). Because the district court decided the defen-

dants’ motion solely on the basis of affidavits, the plaintiffs

were required only to present a prima facie case for per-

sonal jurisdiction. Marine Midland Bank, N.A. v. Miller,

664 F.2d 899, 904 (2d Cir. 1981); Data Disc, Inc. v. Systems

Technology Assocs., 557 F.2d 1280, 1285 (9th Cir. 1977).*°

6. Terry v. Raymond Int’l, Inc., 658 F.2d at 401; Jetco

Elec. indus. f Ine. ‘v. Gardiner, 473 F.2d i228, 1232 (5th Cir. 1973);

4C. Wright & A. Miller, Federal Practice and Procedure § 1075,

at 316 (1969).

7. International Shoe Co. v. Washington, 326 U.S. 310, 316,

66 S.Ct. 154, 158, 90 L.Ed. 95, 101 (1945) (quoting Milliken v.

Meyer, 311 US. ° 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278, 283

(1940) ).

8. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228,

1240, 2 L.Ed.2d 1283, 1297 (1958).

9. The “minimum contacts” test applies to individuals as

well as to corporations. Caiagaz v. Calhoun, 309 F.2d 248, 254-55

(5th Cir. 1962); San Juan Hotel Corp. v. Lefkowitz, 277 F.Supp.

28, 30 (D.P.R. 1967); see Kulko v. Superior Ct., 436 US. 84, 91-92,

98 S.Ct. 1690, 1696-97, 56 L.Ed.2d 132, 140-141 (1978). Likewise

the Mississippi long-arm statute applies to to individual as well

as to corporate defendants. Alford v. Whitsel, 322 F.Supp. 358,

361 (N.D, Miss. 1971).

10. See Jetco Elec. Indus., Inc. v. Gardiner, 473 F.2d at 1232.

A21

On a motion to dismiss for lack of personal jurisdiction, the

allegations of the complaint, except as controverted by the

defendants’ affidavits, must be taken as true. E.g., Black v.

Acme Mkts., Inc., 564 F.2d 681, 683 n. 3 (5th Cir. 1977).

{7] In this case jurisdiction was predicated on one

long-distance telephone call that was alleged to constitute

a tort committed “in whole or in part” in Mississippi. The

plaintiffs carried their burden of establishing jurisdiction

by alleging in their complaint and affidavits facts to support

their claim that Kralis defamed them and caused them in-

jury in Mississippi. Although there are conflicts between

some of the facts alleged by the plaintiffs and these alleged

by the defendants in their affidavits, such conflicts “must

be resolved in plaintiff[s’] favor for purposes of deter-

mining whether a prima facie case for in personam jurisdic-

tion has been established.” United States Ry. Equip. Co.

v. Port Huron & Detroit R.R., 495 F.2d 1127, 1128 (7th Cir.

1974).

(8,9] The Mississippi long-arm statute, supra note 2,

provides: “Any nonresident person ... who shall... com-

mit a tort in whole or in part in this state against a resi-

dent... of this state . . . shall by such act or acts be deemed

to be doing business in Mississippi.” The district court as-

sumed, without deciding, that Kralis’s telephone call came

within the ambit of the Mississippi statute. This assump-

tion was warranted. Both by its language and by inter-

pretation" the statute includes in its reach defendants who

commit a single tort. An alleged tortfeasor need not have

been present in the state. If, as is alleged in this case, he

causes injury in Mississippi, he is covered by the statute.

Smith v. Temco, Inc., 252 So.2d 212, 216 (Miss.1971).

Thus this case resembles other cases in which courts have

11. See Alford v. Whitsel, 322 F.Supp. at 362.

A22

held that conduct like Kralis’s is covered by long-arm stat-

utes similar to the Mississippi statute.’*

[10] The district court erroneously concluded, how-

ever, that this one contact was insufficient under the due

process clause to subject the defendants to in personam

jurisdiction. The number of contacts with the forum state

is not, by itself, determinative. Quasha v. Shale Dev. Corp.,

667 F.2d at 488; Product Promotions, Inc. v. Cousteau, 495

F.2d 483, 495 (5th Cir. 1974).'* What is more significant is

whether the contacts suggest that the nonresident defen-

dant purposefully availed himself of the benefits of the

forum state. Quasha v. Shale Dev. Corp., 667 F.2d at 488."*

12. See, e.g., State ex rel. Advanced Dictating Supply, Inc.

v. Dale, 269 Or. 242, 246-48, 524 P.2d 1404, 1406-07 (1974)

(Oregon law) out-of-state defendant’s 7|— defamatory tele-

hone conversation conferred jurisdiction); Myers v. John Deere

td., 683 F.2d 270, 271-72 (8th Cir. 1982) (North Dakota law);

National Egg Co. v. Bank Leumi le-Israel B.M., 504 yak 305,

309-12 (N.D. Ga. 1980) (Georgia law); J.E.M. Corp. v. McClellan,

462 F.Supp. 1246, 1247 (D. Kan. 1978) (Kansas law); cf. Murphy

v. Erwin-Wasey, Inc., 460 F.2d 661, 664 (1st Cir. 1972) (“Where

a defendant knowingly sends into a state a false statement, in-

tending that it should there be relied upon tu the injury of a

resident of that state, he has, for jurisdictional purposes, acted

within that state.”). See generally Margoles v. Johns, 483 F.2d

1212, 1216 (D.C. Cir. 1973) (“Statutes which [like Mississippi’s]

predicate jurisdiction over a non-resident upon the commission

of ‘a tort in whole or in part’ within the jurisdiction ... are

broadly construed.’’).

13. See Benjamin v. Western Boat Bldg. Corp., 472 F.2d

723, 726 (5th Cir.) (“very little purposeful activity within a

state is necessary to satisfy the minimum contacts requirement”),

cert. denied, 414 U.S. 830, 94 S.Ct. 60, 38 L.Ed.2d 64 (1973);

cf. In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220,

235 (6th Cir. 1972) (“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 or its agents.”).

14. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S.

286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490, 501 (1980) CUT The

foreseeability that is critical to due process analysis ... is t

the defendant’s conduct and connection with the forum state are

such " he should reasonably anticipate being haled into court

A23

“When a defendant purposefully avails himself of the

benefits and protection of the forum's laws—by engaging

in activity ... outside the state that bears reasonably fore-

seeable consequences in the state—maintenance of the law

suit does not offend traditional notions of fair play and

substantial justice,” Mississippi Interstate Express, Inc, v.

Transpo, Inc,, 681 F.2d 1003, 1007 (Sth Cir, 1982) (citation

omitted), In addition to the existence of foreseeable con-

sequences, courts consider “ the quantity of contacts, and

the source and connection of the cause of action with those

contacts” in determining whether a defendant's actions con-

stitute “purposeful availment,” Products Promotions, Inc,

v, Cousteau, 495 F.2d 483, 494 n, 17 (Sth Cir, 1974), Accord

Standard Fittings Co, v, Sapang, S.A,, 625 F.2d 630, 643

(1980), cert, denied, 451 U.S, 910, 101 S.Ct, 1981, 68 L.Ed.2d

209 (1981),

[11] Two other factors are also relevant in determin-

ing whether the exercise of personal jurisdiction comports

with due process, The first is “the interest of the state in

providing a forum for the suit.” Austin v. North American

Forest Products, Inc,, 656 F.2d 1076, 1090 (5th Cir, 1981);

Products Promotions, supra, 495 F.2d at 498, Finally, the

“relative conveniences and inconveniences to the parties”

are also relevant, Austin, supra, 656 F.2d at 1090; Products

Promotions, supra, 495 F.2d at 495,

[12] These considerations lead us to conclude that

the defendants are not denied due process by being sub-

jected to suit in Mississippi. Kralis initiated the telephone

call’® and allegedly committed an intentional tort.’* The

15, Compare Cook Assoca,, Inc, v, Colonial Broac ach,

Co,, 14 Co, 14 TLADp.4 f 065, 070, 304 NE2d 27, 31 (1078) Coun was

pe ae ted " business ¢ jon

transact

McBreen h

by telephoning paint") wlth cBreen e, Beech Alverat

(Continued on following page)

A24

injurious effect of the tort, if one was committed, fell in

Mississippi, which the defendant could easily have foreseen,

Rusack v, Harsha, 470 F.Supp, 285, 291 (M.D, Pa, 1978),

The injury was felt entirely by a Mississippi resident and

a Mississippi corporation, Forcing them to travel to In-

diana to litigate would not advance “[their) interest in

obtaining convenient and effective relief.” World-Wide

Volkswagen Corp, v, Woodson, 444 U.S, 286, 292, 100 S.Ct,

559, 564, 62 L.Ed,2d 490, 498 (1980), There are only two

witnesses likely to be called with regard to the content

of the telephone call: one of them, the United States

Attorney, resides in Mississippi; the other is, of course,

Kralis, All of the witnesses to the effect of the call reside

in Mississippi, See Rusack v, Harsha, 470 F.Supp, at 291;

ef, Gulf Oil Corp, v, Gilbert, 330 U.S, 501, 508, 67 S.Ct, 839,

843, 91 L.Ed, 1055, 1062 (1947) (forum non conveniens),

We intimate no opinion concerning the sufficiency of

the evidence against the defendants to survive a motion

for summary judgment, That issue, like many others

lurking in the case, may be presented to the district court

now that its jurisdiction is established,

The judgment of dismissal is REVERSED and the case

is REMANDED for further proceedings consistent with this

opinion,

Footnote continued

defendant ... and the forum in this case consisted of remarka

made during a tel e call which was neither solicited nor

initiated by the defendant,"),

16, “[{W]hether an act is intentional or negligent can have

a distinct ring on whether the exercise of jurisdiction there-

over ia constitu , for it goes directly to fairness and the

Conroe to which an individual has purposefully availed himself

of privilege of cond activi within the forum atate,”

Margoles v, Johns, 403 F.2d at 1220; see Bangor Punta Operations,

Inc, v. Universal Marine Co,, 643 F.2d 1107, 1110 & n, & (Sth Cir,

1076); Murphy v, ErwineWasey, Inc., 460 F.2d at 664,

° A25

APPENDIX “G”"

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No, 81-4451

PETE HARDING BROWN and MOTT’S

INC OF MISSISSIPPI,

Plaintiffs-Appellants,

versus

FLOWERS INDUSTRIES, INC,, A Delaware Corporation,

JERRY KRALIS and KRALIS BROTHERS FOOD,

INC,, An Indiana Corporation,

Defendants-Appellees,

Appeal from the United States District Court for the

Northern District of Mississippi

ON SUGGESTION FOR REHEARING EN BANC

(Opinion 9/22/82, 5 Cir,, 198...., 0.0» | ae ).

(October 22, 1982)

Before BROWN, RUBIN and REAVLEY, Circuit Judges,

PER CURIAM;

(\/) Treating the suggestion for rehearing en banc as a

petition for panel rehearing, it is ordered that the petition

for panel rehearing is DENIED, No member of the panel

nor Judge in regular active service of this Court having

requested that the Court be polled on rehearing en banc

(Rule 35, Federal Rules of Appellate Procedure; Local

A26

Fifth Circuit Rule 16), the suggestion for Rehearing En

Banc is DENIED,

( ) Treating the suggestion for rehearing en banc as a

petition for panel rehearing, the petition for panel rehearing

is DENIED, The judges in regular active service of this

Court having been polled at the request of one of said

judges and a majority of said judges not having voted in

favor of it (Rule 35, Federal Rules of Appellate Procedure;

Local Fifth Circuit Rule 16), the suggestion for Rehearing

En Bane is DENIED,

Entered for the Court:

/#/ Alvin B, Rubin

United States Circuit Judge

CLERK'S NOTE;

See Rule 41 FRAP and Local

Rule 17 for Stay of the

Mandate

A27

APPENDIX “H”

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF MISSISSIPPI

WESTERN DIVISION

NO. WC80-166-LS-P

PETE HARDIN BROWN AND MOTT’S, INC.,

OF MISSISSIPPI,

Plaintiffs,

Vv.

FLOWERS INDUSTRIES, INC., et al.,

Defendants,

ORDER

For good cause shown and upon defendants’ motion

for a stay of proceedings pending consideration of defen-

dants’ petition to the Supreme Court for a writ of certiorari

directed to the Fifth Circuit Court of Appeals,

IT IS ORDERED:

That this cause be and is hereby STAYED pending the

consideration by the United States Supreme Court of de-

fendants’ certiorari petition.

This 17th day of December, 1982.

/s/ L. J. Senter, Jr.

United States District Judge