E-Filed Document Sep 18 2014 14:56:02 2013-IA-01479-SCT Pages: 12 IN THE SUPREME COURT OF MISSISSIPPI FRANCESCA MUNNE NORDNESS NESS DEFENDANT-APPELLANT vs. VS. MISCELLANEOUS NO.: 2013-IA-01479-SCT PAIGE FAUCHEUX PLAINTIFF-APPELLEE ON INTERLOCUTORY APPEAL FROM THE CIRCUIT COURT OF DESOTO COUNTY, MISSISSIPPI REPLY BRIEF OF DEFENDANT-APPELLANT FRANCESCA MUNNE NORDNESS ORAL ARGUMENT NOT REQUESTED LAMAR & HANNAFORD, P.A. John T. Lamar, Jr. (MSB # 1781) 214 South Ward Street Senatobia, MS 38668 Telephone: (662) 562-6537 Facsimile: (662) 562-4858
TABLE OF CONTENTS TABLE OF AUTHORITIES...3 STATEMENT OF ISSUES...4 ARGUMENT... 5 I. THIS COURT SHOULD REVERSE THE CIRCUIT COURT'S ORDER AND INSTRUCT THE CIRCUIT COURT TO DISMISS Ms. FAUCHEUX'S CLAIMS BECAUSE Ms. NORDNESS DID NOT CAUSE INJURY IN MISSISSIPPI TO SATISFY THE LONG-ARM STATUTE....5 II. III. THIS COURT SHOULD REVERSE THE CIRCUIT COURT'S ORDER AND INSTRUCT THE CIRCUIT COURT TO DISMISS Ms. FAUCHEUX'S CLAIMS BECAUSE Ms. NORDNESS DOES NOT HAVE SUFFICIENT MINIMUM CONTACTS WITH THE STATE... 6 THIS COURT SHOULD REVERSE THE CIRCUIT COURT'S ORDER AND INSTRUCT THE CIRCUIT COURT TO DISMISS Ms. FAUCHEUX'S CLAIMS BECAUSE ASSERTING PERSONAL JURISDICTION OVER Ms. NORDNESS OFFENDS THE TRADITIONAL NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE... 9 Conclusion...,... 10 Certificate of Service... 12 2
TABLE OF AUTHORITIES CASES Allred v. Moore & Peterson, 117 F.3d 278 (5th Cir. 1997)... 5 Asahl Metal Indus. Co., Ltd. v. Superior Court of California, Solano Cnty., 480 U.S. 102 (1987)... 9 Bailey v. Stanford, 2012 WL569020 (N.D. Miss. Feb. 21, 2012... 8 Calder v. Jones, 465 U.S. 783 (1984)... 8 Home v. Mobile Area Water & Sewer Sys., 897 So. 2d 972 (Miss. 2004)... 7 InCI Shoe Co. v. State of Wash., Office of Unemployment Compo & Placement, 326 U.S. 310 (1945)... :... 10 Jobe v. ATR Mktg., Inc., 87 F.3d 751 (5th Cir. 1996)... 5-6 Knightv. Woodfield, 50 So. 3d 995 (Miss. 2011)... 7-8, 11 Miller v. Providence Advertising and Marketing, Inc., 2014 WL2735194 (Miss. June 17, 2014)... 8 3
STATEMENT OF ISSUES 1. The Circuit Court erred in denying Ms. Nordness' motion to dismiss when it found that she injured Ms. Fauceux, at least in part, in Mississippi. This Court should reverse the Circuit Court's order and instluct the Circuit Court to dismiss Ms. Faucheux's claims because Ms. Nordness did not cause injury in Mississippi to satisfy the long-atm statute. 2. The Circuit Court el1'ed in denying Ms. Nordness' motion to dismiss when it failed to find that she does not have sufficient minimum contacts with the fotum. This Conti should everse the Circuit Couti's order and instmct the Circuit Couri to dismiss Ms. Faucheux's claims because Ms. Nordness does not have sufficient minimum contacts with the forum state. 3. The Circuit Conti erred in denying Ms. Nordness' motion to dismiss when it found that maintenance of this suit in Mississippi does not violate traditional notions of fair play and substantial justice. This Couri should reverse the Circuit Court's order and instmct the Circuit Couri to dismiss Ms. Faucheux's claims because asserting personal jurisdiction over Ms. Nordness offends traditional notions of fair play and substantial justice. 4
ARGUMENT This Court should reverse the Circuit Court's denial of Ms. Nordness' motion to dismiss for three reasons. First, Ms. Nordness is not subject to Mississippi's long-mid jurisdiction because her actions did not injure Ms. Faucheux in Mississippi. Any damages Ms. Faucheux suffered were the consequences of out-of-state activity with no knowledge of contacts with or possible effects in the forum. Second, Ms. Nordness is not subject to personal jurisdiction because she does not have the requisite minimum contacts. At the time of suit, she had never been physically present in Mississippi, never physically encountered Mr. Faucheux in Mississippi, and never communicated with Mr. Faucheux while knowing or believing that he was in Mississippi. Ms. Nordness believed Mr. Faucheux lived in Memphis, Tennessee, and she did not know or believe that he actually resided in Mississippi. Third, subjecting Ms. Nordness to personal jurisdiction offends traditional notions of fair play and substantial justice. Ms. Nordness did not purposefully avail herself of the forum, and the Court's interest in upholding the constitutional requirements of personal jurisdiction outweighs Ms. Faucheux's interest in obtaining relief in the forum. 1. THIS COURT SHOULD REVERSE THE CIRCUIT COURT'S ORDER AND INSTRUCT THE CIRCUIT COURT TO DISMISS Ms. FAUCHEUX'S CLAIMS BECAUSE Ms. NORDNESS DID NOT CAUSE INJURY IN MISSISSIPPI TO SATISFY THE LONG-ARM STATUTE. Ms. Nordness is not subject to long-ann jurisdiction because Ms. Faucheux's alleged injury within the forum (the State of Mississippi) arose D:om Mr. Faucheux's extramm ital affairs that occurred within the fomm, not from Ms. Nordness' actions outside of the fomm. Ms. Nordness' out-of-state actions do not confer jurisdiction upon her in Mississippi because "consequences stemming from the actual tort injuly do not confer personal jurisdiction at the site or sites where such consequences [such as divorce] happen to occur." Allred v. Moore & 5
Peterson, 117 F.3d 278, 282 (5th Cir. 1997) (quoting Jobe v. ATR Mktg., Inc., 87 F.3d 751, 753 & n. 2 (5th Cir. 1996». Any damages allegedly suffered by Ms. Faucheux within the forum were "consequences" and "fallout" of Mr. Faucheux's failed marriage. Jobe, 87 F.3d at 754 (finding that the actual injury claimed by the plaintiff was only a "collateral consequence of extra-state activity"). Ms. Faucheux summarily dismisses the fact that in April 2010 (weeks before she filed for divorce against Mr. Faucheux), she leamed of Mr. Faucheux's prior relationship with a DeSoto County resident, with whom Mr. Faucheux had over 130 phone conversations in October and November 2009. (R. at 47, 167, 179-204.) The record contains only 11 phone calls from Mr. Faucheux to Ms. Nordness, and only two of those calls originated in Mississippi. (Id. at 168, 179-204, 354.) Of the two calls originating from Mississippi, the phone call on December 15, 2009, was initiated at the request of Ms. Faucheux, thus the record shows only one phone call that originated from Mr. Faucheux in the fmum to Ms. Nordness. (Id at 354; Hearing on Motion to Dismiss at 4-5.) Ms. Faucheux points out that Mr. Faucheux expressed his affection for Ms. Nordness as late as April 2010; however, Ms. Nordness did not reciprocate those feelings. In fact, the record shows that Ms. Nordness encouraged him to reconcile with his wife on many occasions. (R. at 305.) Because Ms. Nordness did not cause the injury suffered by Ms. Faucheux, and Ms. Faucheux's damages were either the result of Mr. Faucheux's in-state affairs with other women or "collateral consequences of extra-state activity," Ms. Nordness is not subject to personal jurisdiction under the Mississippi long-mm statute. II. nns COURT SHOULD REVERSE THE CIRCUIT COURT'S ORDER AND INSTRUCT THE CIRCUIT COURT TO DISMISS Ms. FAUCHEUX'S CLAIMS BECAUSE Ms. NORDNESS DOES NOT HAVE SUFFICIENT MINIMUM CONTACTS WITH THE STATE. Since Ms. Nordness never entered Mississippi and only unknowingly communicated with 6
a resident of the forum through email, text messaging, and cellular telephone calls, she does not have the requisite minimum contacts for the Circuit Court to establish personal jurisdiction over her. Ms. Nordness did not know that Mr. Faucheux resided in Mississippi. Knight v. Woodfield, 50 So. 3d 995, 1000 (Miss. 2011). This Court held in Knight that specific jurisdiction is proper over a nomesident who "purposefully directs" his actions toward a resident of the forum and the litigation arises from or is related to those contacts. Id. Every case cited by Ms. Faucheux involves a defendant who was either physically present in the forum or who knew that the plaintiff and hislher spouse were physically present or resided in the folum state. Here, the record contains no evidence to support Ms. Faucheux's claim that Ms. Nordness knew Mr. Faucheux resided in Mississippi. Without such knowledge and without any other contacts in Mississippi, Ms. Nordness cannot be subject to personal jurisdiction in tlus forum. See Knight v. Woodfield, 50 So. 3d 995, 1000 (Miss. 2011). Ms. Faucheux failed to acknowledge the outcome-detelminable fact that distinguishes this case from the facts in Knight v. Woodfield. Id. In Knight, this Comt emphasized that "[i]mpoltantly, [the defendant] knew the [plaintiff's spouse] resided with [the plaintiff] in their marital home in Mississippi." Id. (emphasis added). Also, the COUIt noted the defendant knew that when he spoke to the plaintiffs spouse on the phone that she was physically present in Mississippi. Id. (emphasis added). Further, tlus Court in Knight relied upon its decision in HO/'l1e v. Mobile Area Water & Sewer System to find that knowledge of the contact with the forum state is a requisite element of purposeful availment. Id. (citing HO/'l1e v. Mobile Area Water & Sewer Sys., 897 So. 2d 972, 979 (Miss. 2004)). The Knight Court emphasized the defendant's knowledge of the plaintiff's residence, because without such knowledge, the defendant could not have "purposefully directed" his actions toward a resident of Mississippi. Id. Unlike the defendant in 7
Knight, Ms. Nordness never knew that Mr. Faucheux was a resident of Mississippi, and thus she could not have reasonably foreseen being haled into court in Mississippi. FUlihelmore, Bailey v. Stanford and Miller v. Providence Advertising and Marketing, Inc., appended to Ms. Faucheux's brief, actually suppoli a finding that Ms. Nordness is not subject to personal jurisdiction in Mississippi. In Bailey v. Stanford, the district couli found that the defendant knew the plaintiffs husband was a Mississippi resident, knew of her contact with Mississippi, and thus could reasonably anticipate being haled into court in Mississippi. Bailey v. Stanford, 2012 WL569020 *7 (N.D. Miss. Feb., 21, 2012). The defendant in Bailey admitted that she contacted the plaintiffs husband in Mississippi even after she knew he resided there with his wife. Id. Unlike here, the record in Bailey contained evidence to suppoli the plaintiffs contention that the defendant knew the plaintiff and her husband resided in Mississippi. In Miller v. Providence Advertising and Marketing, Inc., the COUli of Appeals found that "[u]nder the Calder-effects test, any telephone calls from [the defendant to the plaintiffs spouse, a resident of Teilllessee] from outside the state would not be sufficient to establish jurisdiction, as there would be no likelihood of damage suffered in the folum state." Miller v. Providence Advertising and Marketing, Inc., 2014 WL2735194 *8 (Miss. June 17,2014) (citing Calder v. Jones, 465 U.S. 783, 789 (1984) (applying the Calder-effects test to fmd that for a court to exercise personal jurisdiction, the defendant's contacts must have been expressly aimed at the folum)). However, in Miller, the Court of Appeals found the defendant subject to personal jurisdiction, because the sexual encounters between the defendant and the plaintiff's spouse occurred in Mississippi. Id. Here, no physical conduct occurred in Mississippi and Ms. Nordness actually believed Mr. Faucheux to be a resident of Temlessee. Because no record evidence exists to show Ms. Nordness knew Mr. Faucheux and his wife resided in Mississippi, 8
Nordness cannot be subject to personal jurisdiction in Mississippi. Ms. Faucheux is asking this Court to expand its jurispludence to confer personal jurisdiction over a nomesident defendant with no physical presence in the folum and no knowledge of contacts with the folum. In fact, Ms. Faucheux goes one step nllther from precedent and asks this Court to impute such knowledge and find that a nomesident defendant with no physical presence in the folum who should have known of her contacts with the folum is subject to personal jurisdiction in the folum. In essence, Ms. Faucheux is asking this COUlt to eradicate the requirement of purposeful availment, because without physical presence or knowledge of contact with the folum, a nomesident defendant call1lot purposefully avail herself of the laws of the forulll state. III. THIS COURT SHOULD REvERSE THE CIRCUIT COURT'S ORDER AND INSTRUCT THE CIRCUIT COURT TO DISMISS Ms. FAUCHEUX'S CLAIMS BECAUSE ASSERTING PERSONAL JURISDICTION OvER Ms. NORDNESS OFFENDS TRADITIONAL NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE. This COUlt should find that exercising personal jurisdiction over Ms. Nordness offends the constitutional notions of fair play and substantial justice because she never purposefully availed herself of the laws ofthe forum. The United State Supreme COUlt set forth the following factors to detelmine whether subjecting a defendant to suit in a folum violates the traditional notions of fair play and substantial justice: (1) the burden on the defendant; (2) the forum state's interest in adjudicating the dispute; (3) the plaintiff's interest in obtaining relief; (4) the interstate judicial system's interest in efficiently resolving controversies; and (5) the shared interest of the several states in furthering fundamental substantive social policies. Asahi Metal Indus. Co., Ltd v. Superior Court of California, Solano Cnty., 480 U.S. 102,113 (1987). At the time of the filing of this lawsuit, neither party resided in Mississippi, and neither party currently resides in the forulll, thus Mississippi has little interest in its determining its 9
outcome and it is inefficient for it to do so. Forcing Ms. Nordness to defend herself at great expense in a folum with which she had no knowing contact, and which itself has almost no cognizable interest in this case, offends traditional notions of fair play and substantial justice. Thus, maintaining this action in Mississippi would be unduly burdensome for Ms. Nordness, as she would be forced to commit time and resources to travel and defend herself in a folum in which she has never purposely availed herself. Ms. Faucheux further stated that exercising personal jurisdiction over Ms. Nordness is in the shared interest of the several states in furthering fundamental social policies. The most fundamental policy this Court must consider in this case is the policy that all citizens are entitled to liberty: "The Due Process Clause protects an individual's liberty interest in not being subject to the binding judgments of a folum with which he has established no meaningful contacts, ties, or relations." International Shoe Co. v. Washington, 326 U.S., at 319, 66 S.Ct. at 160. Exercising personal jurisdiction over Ms. Nordness in light of her limited communications with Mr. Faucheux, whom she did not know to be a resident of the State of Mississippi, erodes the protections of constitutional due process. Therefore, the notions of fair play and substantial justice require this COUlt to protect the shared interest of the states in protecting constitutional due process. Conclusion Nordness cannot be subject to personal jurisdiction in Mississippi. She has not purposefully availed herself of the folum and could not have anticipated being haled into a Mississippi COUlt. No physical conduct took place in Mississippi, and no record evidence exists to show Ms. Nordness knew Mr. Faucheux and his wife resided in Mississippi. This Comt should decline to expand the Court's holding in Knight v. Woodfield and refuse to confer 10
personal jurisdiction over a nonresident defendant with no physical presence in the forum and no knowledge of contacts with the folum. Subjecting Ms. Nordness to personal jurisdiction in Mississippi offends the constitutional notions of fair play and substantial justice because she never purposefully availed herself of the laws of the forum. Accordingly, Ms. Nordness respectfully asks this Court to reverse the Circuit Court's order and instruct the Circuit Court to dismiss Ms. Faucheux's suit for lack of personal jurisdiction. Respectfully submitted, LAMAR & HANNAFORD, P.A. Attorneys at Law 214 South Ward Street Senatobia, MS 38668 Phone: (662) 562-6537 T.LAMAR,,rney for Defendant-Appellant State Bar # 1781 11
CERTIFICATE OF SERVICE I, Jolm T. Lamar, Jr., do hereby certify that I have this day mailed, by United States mail, postage prepaid, a true and correct copy of the above and foregoing brief to the following: Honorable Gerald W. Chatham, Sr. Circuit Court Judge, 1 ih Judicial District P.O. Box 527 Hernando, MS 38632 Gregory C. Morton SPARKMAN, ZUMMACH & PERRY, P.C. Attomeys for Plaintiff 7125 Getwell Road, Ste. 201 Southaven, Mississippi 38671 This the ~1y of September, 2014. 12