Opposition Brief — Martin v. Bank of Floyd

No. 94-1514

In The

Supreme Court of the United States

October Term, 1994

enalle

GEORGE GILMORE MARTIN and

JULIA S. MARTIN,

Petitioners,

VS.

BANK OF FLOYD, a Virginia banking corporation;

GENTRY, LOCKE, RAKES & MOORE, a partnership:

WILLIAM R. RAKES, individually, WILLIAM J.

CREECH, JR., individually; G. HARRIS WARNER, JR.,

individually; and RONALD LEON MOORE, individually,

Respondents.

oo *

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

— e

BRIEF OF RESPONDENTS BANK OF FLOYD

AND RONALD LEON MOORE IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

—_—— +

Please serve: T. Ryan Mock, Jr.

I. RyAN Mock, Jr. Counsel of Record for

FreeMAN & Hawkins Respondents Bank of Floyd

4000 One Peachtree Center and Ronald Leon Moore

303 Peachtree Street, N-.E.

Atlanta, Georgia 30308-3243

(404) 614-7400

J. Bruce Wetc#H

Cutten C. WILKERSON, JR.

QUESTION PRESENTED

Whether the Virginia Respondents subjected them-

selves to the jurisdiction of the Georgia District Court by

mailing two form letters requesting an updated financial

statement and a notice of foreclosure letter to the Peti-

tioners in Georgia?

TABLE OF CONTENTS

Page

(Anestion Presse... . 6.seeeies oxo s eee bane ses i

meee oe 4. ss Sioa ek eee eee eee es il

po ee re a re ee weeeacee- iil

atemmaet ot The SO0G io iho caeclcisk eae 2

smmenary Of ANRURNNEE ooo cc ceaddreeannekeeavenes 5

Reasons For Denying The Writ .................... 6

I. Neither Mr. Moore Nor The Bank Have 5Suffi-

cient Minimum Contacts With The State Of

CoOCRED Lo 5 css sad dawnns ¥cemeeee eee

Il. The Bank and Mr. Moore Are Not Amenable To

Service Of Process Under Georgia's Long-Arm

Statute Or Any Federal Statute Containing A

Service Of Process Provision...............;.

Orie ee Pee ee eae aarp S Seren ttags WN

it

TABLE OF AUTHORITIES

Page

Cases:

Brink's Mat. Ltd. v. Diamond, 906 F.2d 1519 (11th

eR oe ln Gly Wd ch nly gwd bu vk ek a Sa en de Bs 7

Burger King Corp. v. Rudzewicz, 471 U.S. 462

ee iy ink k Faw bee kL S AG Re ORS 7, 8,9

Butcher's Local Union No. 498 v. SDC Investment,

See Fee Buse Ou? eet GET. DPOOP «5 ok keene ce ns 1]

Cable Home Communications v. Network Productions,

pc, Dare Piece ce (Aide Cig. TOGO)... 2... eens 6, 7

Commercial Foods Specialities, Inc. v. Quality Food

Equip. Co., 176 Ga. App. 892, 338 S.E.2d 865

Ee cine pAGMW a uve sk aka th bee oh 0 vdeo hes 14

Davis Metals, Inc. v. Allen, 230 Ga. 623, 198 S.E.2d

ks Dik alps ares «do ps u04.9 4.56445 8500-4 8s 13

Delong Equip. Co. v. Washington Mills Abrasive Co.,

840 F.2d 843 (11th Cir. 1988), cert. dented, 110 S.

ae Ss abe bak pbk ob s\eia dm ok KON t. a0

Elec. Transaction Network v. Katz, 734 F. Supp. 492

6G aaa) pea eS 4442 Ra See 28 8, 9

Evans v. American Surpius Underwriters Corp., 739

ee Sa OE GR rer 7

International Shoe Co. v. State of Washington, 326

ee its ba are bee Oka Aw Kad se we 7, 8

LeDuc v. Kentucky Cent. Life Ins. Co., 814 F. Supp.

baa Gah ed bene kw da ese ey we 12

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

oki sad he W eke hhh ena ed ee au res 9

Stephens v. Coleman, 712 F. Supp. 1571 (N. D. Ga.),

aff'd., 901 F. 2d 1571 (11th Cir. 1989), cert. denied,

Ee ee shes ee ns eae sanvsevceesides 4

TABLE OF AUTHORITIES — Continued

Page

STATUTES AND RULES

18 USC. § 1965(b) ........ eet aa ae a i

a Re a Pree tier a ae

Ce ee ee PR, fe oe Ole a Cw inanher ak Fark 6

CR sok. Oe RE Es 5 ke he CAS ERS ANE AOS 13

O.C.G.A. § 9-10-91(2) ae Sd a eee eas 13

21 eee eG | Sere meer tren ge 5 Fae

ee ee eo ek rer rrrrr re reer a Tee |

Supreme Court Rule 29.1 Pee tony eh eer ae atk eta 2

No. 94-1514

a * sienliphitinaithetiabalenibiedaipiasianiapailiaiaaiiitts

In The

Supreme Court of the United States

October Term, 1994

sichenaaguinadiiiniaat eS sient Sabeeneaiinaatebideaininleiniindins

GEORGE GILMORE MARTIN and

JULIA S. MARTIN,

Petitioners,

BANK OF FLOYD, a Virginia banking corporation;

GENTRY, LOCKE, RAKES & MOORE, a partnership;

WILLIAM R. RAKES, individually; WILLIAM J.

CREECH, JR., individually; G. HARRIS WARNER, JR.,

individually; and RONALD LEON MOORE, individually,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

¢

BRIEF OF RESPONDENTS BANK OF FLOYD

AND RONALD LEON MOORE IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

o¢-— ------

Come now Respondents Bank of Floyd and Ronald

Leon Moore in the above-captioned matter and present

this their Response to the Petition for Writ of Certiorari

and show reasons why the writ should be denied.

—_—____—__——- @ —-— shesintiananipiinaiat

hN

STATEMENT OF THE CASE

On May 5, 1993, the Petitioners George Gilmore Mar-

tin and Julia S. Martin filed the present action in the

United States District Court for the Northern District of

Georgia (“the District Court”) against Respondents Bank

of Floyd (hereinafter “the Bank”)', Ronald Leon Moore

(hereinafter “Mr. Moore”), and others. The Petitioners

have set forth four counts against some or all of the

Respondents. These include claims for Federal RICO,

Georgia RICO, breach of fiduciary duty, and conspiracy

to breach fidicuary duties.

On March 1, 1994, the District Court granted the

Bank’s and Mr. Moore's Motion to Dismiss for lack of

personal jurisdiction. That decision was unanimously

affirmed by a three-judge panel of the United States

Court of Appeals for the Eleventh Circuit. The Peti-

tioners’ Petition for Rehearing was denied.

The Petitioners’ Statement of the Case fails to state

the true facts of the case and is replete with misleading

statements and inaccuracies. Instead of involving “fraud-

ulent schemes,” “intrinsically deceptive” letters, and a

conspiracy to deprive the Petitioners of their property

and money, this case concerns a simple, lawful fore-

closure of real property located in Virginia.

The Bank is a Virginia corporation whose principal

office is located in Floyd, Virginia. The Bank does not

have an office or branch in the State of Georgia and does

| Pursuant to Supreme Court Rule 29.1, and as noted in the

Petitioners’ List of All Parties, the Bank has no parent corpora-

tion and no non-whollyv owned subsidiaries

not advertise in the State of Georgia. It does not own, use

or possess any real property in the State of Georgia, and

does not hold a security interest on any real property

located in the State of Georgia. There is no evidence that

the Bank has any customers that reside in the State of

Georgia. The Bank does not regularly engage in business

in Georgia, solicit business in Georgia, or derive substan-

tial revenue from goods used or consumed or services

rendered in Georgia.

Mr. Moore, a Senior Executive Vice President and

Chief Executive Officer of the Bank, is a resident of Floyd,

Virginia. Mr. Moore does not own, use, Or possess any

real property in the State of Georgia. Mr. Moore does not

regularly engage in or solicit business in the State of

Georgia, and does not derive any revenue from goods

used or consumed or services rendered in the State of

Georgia.

The Petitioners resided in the State of Virginia until

February, 1991. The Petitioners allege they are in the

business of buving, subdividing, and selling real estate.

On or about May 15, 1990, the Petitioners executed a

$630,000 Promissory Note to the Bank in Floyd, Virginia.

To secure this loan, the Petitioners executed a Deed of

Trust in favor of the Bank on the same date. The Deed of

Trust transferred to Bruce W. Thompson and Dale Profitt,

as Trustees, certain real property of the Petitioners

located in Salem, Roanoke County, Virginia (“the Prop-

erty”) to secure the Promissory Note. Both the Prom-

issory Note and the Deed of Trust were executed in the

State of Virginia while the Petitioners were residents of

i

the State of Virginia.

On or about August 21, 1991, and again on October

10, 1991, Mr. Moore, then Senior Executive Vice President

and Chief Executive Officer of the Bank, sent to the

Petitioners a standard form letter asking them to furnish

an “up to date financial statement” as required by the

terms of the Promissory Note and because federal regula-

tions require FDIC-insured banks to have on file current

financial statements for all borrowers. On or about Sep-

tember 16, 1991, the Bank executed a document entitled

“Resignation of Trustee and Appointment of Substitute

Trustee” removing Bruce W. Thompson as Trustee of the

Property and replacing him with Respondent William J.

Creech, Jr., a lawyer with the Respondent law firm of

Gentry, Locke, Rakes & Moore (“the Law Firm”).

Shortly therafter, the Petitioners defaulted on the

Note and the Bank accelerated the indebtedness pursuant

to the terms of the Note and declared the entire amount

due and pavable. On or about November 19, 1991, the

Law Firm, on behalf of the Bank, sent a certified letter to

the Petitioners advising them that their Note was in

default and had been accelerated. The Petitioners were

further advised that the Bank intended to institute tore-

closure proceedings pursuant to the Deed of Trust. The

Law Firm sent the letter to the Petitioners at their address

at 6210 Aberdeen Drive, N.E., Atlanta, Georgia 30328 and

at their address at 5596 Mitchell Road, No. 24, Atlanta,

Georgia 30328. The Petitioners acknowledge receiving the

letter and executing the return receipt on the letter, as ts

required for a valid foreclosure under Virginia law.

The Bank then advertised the Property for sale as

follows:

This sale is subject to filed and unfiled

mechanics’ liens, if any. This sale is further sub-

ject to any defects or exceptions to title arising

prior to recordation of the Deed of Trust refer-

enced herein.

The advertisements for the sale were published in the

morning edition of the Roanoke Times & World News on

Tuesday, November 26, 1991 and Tuesday, December 3,

1991 in Roanoke County, Virginia. The sale was sched-

uled for December 4, 1991. The Bank purchased the Prop-

erty, with the exception of one lot, at the foreclosure sale.

In January, 1992, the Bank directed the Law Firm to

sue the Petitioners for a deficiency judgment in Roanoke

County Circuit Court, Roanoke County, Virginia. Mr.

Moore executed an affidavit attesting to the deficiency.

The Petitioners retained William Quillian, an attorney in

Virginia, to represent them in connection with the action

for the deficiency judgment.

Subsequently, the Bank began selling off lots from the

Property which it then owned pursuant to the lawful

foreclosure. All of these sales took place in Virginia. The

Bank’s and Mr. Moore’s only contacts with the State of

Georgia were mailing two form letters requesting an “up

to date financial statement” and the ivNovember 19, 1991

notice of foreclosure letter to the Petitioners in Georgia.

«

SUMMARY OF ARGUMENT

The District Court and the Eleventh Circuit correctly

ruled that the Bank and Mr. Moore are not subject to

personal jurisdiction in Georgia. First, neither the Bank

nor Mr. Moore have any contacts with the State of Geor-

gia. As such, maintenance of this suit against them in

Georgia would offend “traditional notions of fair play

and substantial justice.” Cable Home Communications v.

Network Productions, Inc., 902 F.2d 829 (11th Cir. 1990).

Neither Mr. Moore nor the Bank transact any business

affairs in the State of Georgia. The Bank has no office in

Georgia, is not licensed to transact business in Georgia,

does not advertise in Georgia, does not solicit or regu-

larly engage in business in Georgia, and has no customers

in Georgia. Mr. Moore does not solicit or regularly engage

in business in Georgia, or derive revenue from Georgia.

All activities allegedly committed by the Bank and Mr.

Moore were committed in the State of Virginia, and all

actions remotely related to this case occurred in Virginia.

Furthermore, the District Court could not exercise

jurisdiction over the Bank or Mr. Moore under Georgia's

long-arm statute. See O.C.G.A. § 9-10-91. Neither the

Bank nor Mr. Moore own, use, or possess real property in

the State of Georgia, or transact any business in the State

of Georgia. Furthermore, the evidence is abundantly clear

that neither the Bank nor Mr. Moore committed any tor-

tious acts in the State of Georgia. Accordingly, the District

Court did not have personal jurisdiction over the Bank or

Mr. Moore.

REASONS FOR DENYING THE WRIT

The question presented in the instant Petition is not

novel. The Supreme Court has on several occasions

clearly articulated the “minimum contacts” test for a

state’s exercise of personal jurisdiction over a non-resi-

dent, and it is well-established that merely mailing three

form letters into the forum state is wholly insufficient to

satisfy that test. See, e.g., Burger King Corp. v. Rudzewicz,

471 U.S. 462 (1985). Furthermore, there are no conflicting

decisions from any federal appellate court or from the

Georgia Suprerne Court on this issue. Accordingly, the

instant Petition satisfies none of the Supreme Court Rule

10.1 factors, and the Petition should be denied.

A federal court may only exercise personal jurisdic-

tion over a nonresident defendent if the nonresident is

amenable to service of process under the foreign state’s

long-arm statute or under a federal statute containing a

service of process provision, and if “sufficient ‘minimum

contacts’ exist to satisfy the Due Process Clause of the

Fourteenth Amendment so that ‘maintenance of the suit

does not offend traditional notions of fair plav and sub-

stantial justice’.” Cable Home Communications v. Network

Productions, Inc., 902 F.2d 829, 855 (11th Cir. 1990) (quot-

ing International Shoe Co. v. State of Washington, 326 U.S.

310 (1945), federal question case). See also Brink’s Mat. Ltd.

v. Diamond, 906 F.2d 1519, 1521 (11th Cir. 1990) (federal

question and diversity of citizenship); Delong Equip. Co. v.

Washington Mills Abrasive Co., 840 F.2d 843 (11th Cir.

1988), cert. denied, 110 S. Ct. 1813 (1990) (federal question

case); Evans v. American Surplus Underwriters Corp., 739 F.

Supp. 1526, 1529-30 (N.D. Ga. 1989) (diversity of citizen-

ship case). A plaintiff bears the burden of establishing

that personal jurisdiction exists over the nonresident

defendant. Stephens v. Coleman, 712 F. Supp. 1571, 1574

(N.D. Ga.), aff'd., 901 F.2d 1571 (11th Cir. 1989), cert.

dented, 498 U.S. 998 (1990).

I. Neither Mr. Moore Nor The Bank Have Sufficient

Minimum Contacts With The State Of Georgia.

The District Court and the Eleventh Circuit correctly

found that neither Mr. Moore nor the Bank have sufficient

“minimum contacts” with the State of Georgia to justify

the exercise of personal jurisdiction over them. “The basic

inquiry in a personal jurisdiction case ... is whether the

defendant has such minimum contacts with the forum so

that the exercise of jurisdiction does not offend tradi-

tional notions of fair play and substantial justice.” Elec.

Transaction Network v. Katz, 734 F. Supp. 492, 499 (N.D.

Ga. 1989). See International Shoe Co., supra at 310; Evans,

supra at 1530. “The Due Process Clause protects an indi-

vidual’s liberty interest in not being subject to the bind-

ing judgments of a forum with which he has established

no meaningful ‘contacts, ties, or relations’.” Burger King

Corp. v. Rudzewicz, 471 U.S. 462, 471-72 (1985).

In Burger King Corp., the Supreme Court set forth a

two-pronged test to determine whether a court has per-

sonal jurisdiction over a non-resident: whether the defen-

dant “purposefuily established minimum contacts within

the forum state,” and, if so, “whether the assertion of

personal jurisdiction would comport with ‘fair play and

substantial justice’.” Id. at 476. In determining whether

minimum contacts exist, two factors are considered: fore-

seeability and purposeful availment. Id. The Eleventh

Circuit Court of Appeals has stated:

The foreseeability that is critical to due process

analysis is that the defendant’s conduct in con-

nection with the forum state is such that he

would reasonably anticipate being haled into

court there. . . . The purposeful availment

requirement seeks to ensure that a non-resident

defendant ‘will not be haled into a jurisdiction

solely as a result of random, fortuitous, or atten-

uated contacts’. There must be some act by

which he purposefully avails himself of the

privilege of conducting activities within the

forum state, thus invoking the benefits and pro-

tections of its laws.

Elec. Transaction Network, supra, at 499 (citations omitted).

Accord Evans, supra, at 1531.

[he Supreme Court has stated that a defendant has

ample warning that he may be subject to a state court’s

jurisdiction if he intentionally directs his conduct and

activities at a state’s residents and “the litigation results

from alleged injuries that ‘arise out of or relate to’ those

activities.” Burger King Corp., supra, at 472. See also DeLong

Equip. Co., supra, at 843 (some purposeful availment on

the part of the defendant non-resident required before

minimum contacts exist). Although the non-resident

defendant's physical presence is not required in the

forum state, the plaintiff's cause of action must “arise out

of, or result from, the activity or activities of the defen-

dant within the forum.” Shellenberger v. Tanner, 138 Ga.

App. 399, 404, 227 S.E.2d 266 (1976).

If sufficient minimum contacts exist, the court must

address the second prong of Burger King Corp., supra, and

review “reasonableness” factors to determine if the exer-

cise of personal jurisdiction comports with fair play and |

substantial justice. Elec. Transaction Network, supra, at 499.

“These factors include the burden on the defendant, the

forum state’s interest in adjudicating the dispute, the |

plaintiff's interest in obtaining efficient and effective

a

10

relief, the interstate judicial system’s interest in obtaining

the most efficient resolution of controversies, and the

shared interest of the several states in furthering funda-

mental substantive social policies.” Id.

It is abundantly clear that neither Mr. Moore nor the

Bank has sufficient contacts with the State of Georgia to

justify the exercise of personal jurisdiction over them by a

federal court sitting in Georgia. Neither owns property in

Georgia. Mr. Moore does not regularly engage in business

in Georgia, derives no revenue from Georgia, and does

not have an agent in Georgia. He has done nothing in

Georgia such that he could reasonably anticipate being

haled into court in Georgia. Clearly, the Petitioners’

claims against Mr. Moore do not arise out of any activity

of Mr. Moore in Georgia.

Likewise, the Bank has no office in Georgia, is not

licensed to transact business in Georgia, does not adver-

tise in Georgia, and has no agent in Georgia. The Bank

has few, if any, customers in Georgia. It does not engage

in business in Georgia, and derives little, if any, revenue

from Georgia. It has done nothing in Georgia such that it

would reasonably anticipate being haled into court in

Georgia, and the Petitioners’ claims against it do not arise

out of any activity of the Bank in Georgia.

Furthermore, the State of Georgia has little interest in

adjudicating the Petitioners’ “dispute” with Mr. Moore

and the Bank. The Deed of Trust and Promissory Note

were executed in Virginia. The foreclosure action and sale

took place in Virginia. The foreclosed Property is located

in Virginia. The suit for a deficiency judgment was filed

and pursued in a Virginia court. The two form letters

’

11

requesting financial information and the foreclosure

notice letter were mailed by Respondents residing in and

working in Virginia. Furthermore, the alleged breach of

fidicuary duties by Mr. Creech and the Bank took place in

the State of Virginia. The burden of all Respondents com-

ing to Georgia to defend this litigation is great, as well.

Accordingly, no “minimum contacts” are present and the

exercise of personal jurisdiction over Mr. Moore and the

Bank would violate traditional notions of fair play and

substantial justice.

Il. The Bank and Mr. Moore Are Not Amenable To

Service Of Process Under Georgia’s Long-Arm Stat-

ute Or Any Federal Statute Containing A Service

Of Process Provision.

Even assuming Mr. Moore and the Bank have suffi-

cient contacts with the State of Georgia such tha: the

exercise of personal jurisdiction would not violate their

due process rights, the District Court could not exercise

jurisdiction over them under Georgia’s long-arm statute

or under Federal RICO’s service of process provision. The

Federal RICO service of process provision authorizes ser-

vice of process on RICO defendants “residing in any

other district” if “the ends of justice” require it. 18 U.S.C.

§ 1965(b). This nationwide service of process provision

has severe limits, however. In order to invoke § 1965(b), it

must be shown that the court has personal jurisdiction

over at least one of the RICO defendants, and the plaintiff

must demonstrate that “there is no other district in which

a court will have personal jurisdiction over all of the

alleged co-conspirators.” Butcher's Local Union No. 498 v.

SDC Investment, Inc., 788 F.2d 535, 539 (9th Cir. 1986).

12

—

“(Mjerely naming persons in a RICO complaint does not,

in itself, make them subject to section 1965(b) nationwide

service provisions.” Id. See also LeDuc v. Kentucky Cent.

Life Ins. Co., 814 F. Supp. 820, 826 (N.D. Cal. 1992) (Cali-

fornia court refuses to invoke 18 U.S.C. § 1965(b) because

all defendants were subject to jurisdiction in Kentucky

and none in California). Neither of these requirements are

met in this case.

Like the Bank and Mr. Moore, none of the other

Respondents have constitutionally sufficient contacts

with Georgia. Respondents Creech, Rake, and Warner are

all attorneys with Respondent the Law Firm, which is

located in Roanoke, Virginia. None of these Respondents

has an office or place of business in Georgia. None prac-

tices law in Georgia, or is licensed to practice law in

Georgia. The Law Firm has no employees who reside in

Georgia, has no agents in Georgia, does not regularly

transact business in Georgia, and is not licensed to trans-

act business in Georgia.

Furthermore, the Petitioners could have brought this

action in Virginia, where all of the Respondents are sub-

ject to personal jurisdiction. Accordingly, the Petitioners

are prohibited from using the Federal RICO service of

process provision in an effort to create jurisdiction in

Georgia over all of the Respondents.

The Bank and Mr. Moore are also not subject to

service of process under Georgia’s long-arm statute. Since

this is not a divorce action and since neither Mr. Moore

nor the Bank owns, uses or possesses real property in

Georgia, the applicable provisions of Georgia’s long-arm

statute are as follows:

ei ee eas ee

13

A court of this State may exercise personal juris-

diction over any non-resident ... as to a cause

of action arising from any of the acts, omissions

. enumerated in this Code, in the same man-

ner as if he were a resident of this State, if in

person or through an agent, he:

(1) transacts any business within the State;

(2) commits a tortious act or omission

within the State,

(3) commits a tortious injury in this State

caused by an act or omission outside the

State if the tort-feasor regularly does or

solicits business, or engages in any other

persistent course of conduct, or derives sub-

stantial revenue from goods used or con-

sumed or services rendered in this State.

O.C.G.A. §§ 9-10-91(1), (2), and (3).

Neither the Bank nor Mr. Moore has transacted busi-

ness in Georgia for two reasons. First, O.C.G.A.

§ 9-10-91(1) only applies to claims based on contract.

Deiong Equip. Co. v. Washington Mills Abrasive Co., 840 F.2d

848 (11th Cir. 1988), cert. denied, 494 U.S. 1081 (1990).

Second, a non-resident has transacted business in Georgia

if he or she “has purposefully done some act or consum-

mated some transaction in the state, if the cause of action

arises from or is connected with such act or transaction,

and if the exercise of jurisdiction by the courts of this

state does not offend traditional fairness and substantia!

justice.” Davis Metals, Inc. v. Allen, 230 Ga. 623, 625, 198

S.E.2d 285 (1973). Further, “[mJere telephone or mail con-

tact with an out-of-state defendant, or even a defendant's

a ae ier tactic

——

14

visit to this state are insufficient to establish the purpose-

ful activity with Georgia required by the ‘long-arm’ stat-

ute.” Commercial Foods Specialties, Inc. v. Quality Food

Equip. Co., 176 Ga. App. 892, 892, 338 S.E.2d 865 (1985).

Again, since neither Mr. Moore nor the Bank has done

anything in Georgia in connection with the Petitioners’

claims other than mailing two form letters and one fore-

closure notice letter into Georgia, they have not “trans-

acted business” within the meaning of Georgia’s long-

arm statute.

Second, neither Mr. Moore nor the Bank has commit-

ted a tortious act or omission in Georgia. Again, the only

action either Mr. Moore or the Bank took with respect to

the State of Georgia was mailing three letters into the

State of Georgia. As such, they clearly did not commit

any such tort in the State of Georgia.

According to the Petitioners’ Complaint, some of the

Respondents allegedly breached fiduciary duties

allegedly owed to the Petitioners by: (a) advertising the

Property for sale in Virginia with clouded title; (b) adver-

tising the sale of the Property only twice in Virginia; (c)

conducting the sale in Virginia on December 4, 1991

between Thanksgiving and Christmas; (d) selling the

Property at foreclosure when the only bidder was the

Bank and one other unrelated third party; and (e) selling

some of the Property to the Bank of Floyd at the fore-

closure sale in Virginia. All of these activities took place

in Virginia, and no such actions took place in Georgia.

Accordingly, neither Mr. Moore nor the Bank commit-

ted the torts of breach of fiduciary duty or conspiracy to

breach fiduciary duties in the State of Georgia.

Pe ekg eee ee es a ee es

15

Finally, neither Mr. Moore nor the Bank committed a

tortious injury in Georgia caused by an act or omission

outside of Georgia. In order for this section of the long-

arm statute to confer jurisdiction over a non-resident

defendant, the Petitioners must show that the non-resi-

dent “regularly does or solicits business, or engages in

any other persistent course of conduct, or derives sub-

stantial revenue from goods used or consumed or ser-

vices rendered in” Georgia. O.C.G.A. § 9-10-91(3).

Neither Mr. Moore nor the Bank has engaged in any such

activity in Georgia.

Neither Mr. Moore nor the Bank “regularly does or

solicits business” in Georgia. The Bank has no office in

Georgia, is not licensed to transact business in Georgia,

does not advertise in Georgia, and its President is aware

of no Bank customers who reside in Georgia. Neither Mr.

Moore nor the Bank derive substantial revenue from

goods used or consumed or services rendered in Georgia.

In fact, Mr. Moore derives no revenue from Georgia, and

the Bank, with no offices or branches in Georgia and not

being licensed in Georgia, would only derive revenue

from services rendered in Georgia to the extent any of its

customers have relocated to Georgia with outstanding

- loans to the Bank. Mr. Moore has testified that he is aware

of no such customers. Accordingly, neither Mr. Moore nor

the Bank are subject to Georgia’s jurisdiction pursuant to

Georgia’s long-arm statute. As such, the District Court

correctly dismissed the Petitioners’ Complaint against

Mr. Moore and the Bank for lack of personai jurisdiction

pursuant to Fed. R. Civ. P. 12(b)(2), and the Eleventh

Circuit correctly affirmed that decision.

+

fn arate cs 9 by aon te dente sr ante amma” ORR

16

CONCLUSION

For the reasons set forth herein, Respondents Bank of

Fioyd and Ronald Leon Moore request that the instant

Petition for Writ of Certiorari be denied.

Respectfully submitted,

lL. RyAN Mock, JR.

. 4 4 a sch san8

Counsel for Respondents

Bank of Floyd and

! — iS cones

Ronald Leon Moore

I. Bruce WetcH

Cutten C. WILKERSON, JR.

Please Serve:

T. RyAN Mock, Jr.

FREEMAN & HAWKINS

4000 One Peachtree Center

303 Peachtree Street, N.E.

Atlanta, Georgia 30308-3243

(404) 614-7400