Allred v. Moore & Peterson

United States Court of Appeals,

Fifth Circuit.

No. 96-60083.

Michael S. ALLRED, Plaintiff-Appellant,

v.

MOORE & PETERSON, A Professional Corporation; Gaynell C.
Methvin; Mark David; Paul R. Aiello; Camille F. Gravel, Jr.,
Individual Member of Gravel Brady & Berrigan, a Partnership,
Defendants-Appellees.

July 21, 1997.

Appeal from the United States District Court for the Southern
District of Mississippi.

Before GARWOOD, DAVIS and STEWART, Circuit Judges.

GARWOOD, Circuit Judge:

The issue presented on this appeal is whether the United

States District Court for the Southern District of Mississippi had

personal jurisdiction over five of the defendants in this diversity

abuse of process/malicious prosecution case. The district court

dismissed the case on the grounds that it lacked personal

jurisdiction over all the defendants, Moore & Peterson, P.C., a

Dallas, Texas law firm, and Paul R. Aiello, Mark David, and Gaynell

C. Methvin, Texas residents and former members of Moore & Peterson

(collectively the Texas defendants); Gravel, Brady & Berrigan, an

Alexandria, Louisiana law firm; James J. Brady, Michael S. Baer,

III, Helen G. Berrigan, Camille F. Gravel, Jr., and Charles G.

Gravel, Louisiana residents and individual members of Gravel, Brady

& Berrigan; and Texas resident Charles C. Rush. Fed.R.Civ.P.

12(b)(2). Plaintiff-appellant Michael S. Allred appealed only the

1
district court's dismissal of appellees the Texas defendants and

defendant-appellee Camille F. Gravel, Jr. We affirm the district

court's dismissal of the appellees on the grounds that the district

court lacked personal jurisdiction.

Facts and Proceedings Below

Plaintiff-appellant Allred is a Mississippi lawyer who filed

this suit in state court in Mississippi alleging that various Texas

and Louisiana attorneys, during the course of their representation

of Charles C. Rush in a suit against Rush pending in the United

States District Court for the Middle District of Louisiana, brought

a frivolous third-party complaint against Allred, who, at the time,

was representing the Louisiana Insurance Commissioner in his

capacity as a party in the referenced suit against Rush.

As alleged by Allred, the underlying facts of the current

dispute go back almost twenty years to his representation of

American Public Life Insurance Company (APLIC) in 1977 in a suit

against Richard O. Rush, Charles C. Rush, and Southern Educators

Life Insurance Company (SELIC). According to Allred, this 1977

Mississippi lawsuit involved alleged violations of securities laws

and breach of fiduciary duties in the course of dealings between

APLIC and SELIC. The parties eventually settled in December 1978

and executed a "Mutual Release and Covenant Not To Sue" in February

1979.

In October 1984, the Insurance Commissioner of Louisiana

retained Allred to file suit against Charles C. Rush, among others,

on behalf of SELIC, which had been placed in rehabilitation, the

2
Commissioner being the Rehabilitator, and renamed First American

Life Insurance Company (FALIC). Allred filed suit in the United

States District Court for the Middle District of Louisiana on May

14, 1985, naming numerous defendants.1 The Louisiana suit charged

Rush with fraud, conversion, and breach of fiduciary duty. In

April 1986, the defendants-appellees, as attorneys for Rush, filed

in the Louisiana suit a third-party complaint naming Rush as

third-party plaintiff and APLIC and Allred as third party

defendants, alleging breach of the 1979 covenant not to sue, and

asserting contribution and indemnification claims for any judgment

rendered against Rush. Process on Allred and interrogatories to him

were served by being sent certified mail from Dallas, Texas, to

Allred's Jackson, Mississippi law offices. Allred subsequently

either withdrew or was terminated from his role as attorney for the

Louisiana Insurance Commissioner as Rehabilitator of FALIC in the

Louisiana suit, allegedly due to the conflict of interest caused by

Rush's third-party complaint. The third-party complaint was

subsequently dismissed with prejudice when, pursuant to a

settlement agreement, Rush assigned the third-party claim to the

Rehabilitator of FALIC.

On August 20, 1993, Allred filed the instant suit in the

Circuit Court for the First Judicial District of Hinds County,

Mississippi, alleging malicious prosecution and abuse of process

1
Sherman A. Bernard, et al. v. Richard O. Rush et al., 641
F.Supp. 730 (M.D.La.1985). An amended complaint was filed on April
10, 1986. Eventually the case involved forty-five named
defendants.

3
against Moore & Peterson; the former individual members of Moore

& Peterson who represented Rush; Gravel, Brady & Berrigan, Rush's

local counsel; and the individual members of Gravel, Brady &

Berrigan.2 Allred's complaint alleged the facts set forth above

and asserted that he suffered economic and emotional injury as a

result of the third-party claim; specifically, a loss of business

income, opportunity, and reputation. The defendants were served by

certified mail delivered to them in Texas and Louisiana,

respectively. The defendants timely removed the case to the

district court below on the basis of diversity of citizenship. 28

U.S.C. § 1332.

On October 8, 1993, the Texas defendants filed a motion to

dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2)

on the ground that service of process by mail on Allred in

Mississippi did not establish sufficient contact with Mississippi

to allow the district court to exercise personal jurisdiction over

the defendants, who were citizens of Texas. On January 14, 1994,

defendants Gravel, Brady & Berrigan and its individual members

(including defendant-appellee Camille F. Gravel, Jr.), citizens of

Louisiana, filed a similar motion to dismiss. The district court

heard oral arguments on February 24, 1994 and on March 3, 1994,

announced its intention to rule in favor of the defendants on the

motions to dismiss. Allred, on September 26, 1994, filed a motion

for leave to amend his complaint to add a conspiracy claim pursuant

2
Final judgment in the Louisiana suit had been entered on
March 1, 1993.

4
to Rule 15(a). On September 30, 1994, without ruling on Allred's

motion to amend, the district court issued a final order of

dismissal for lack of personal jurisdiction.3 Allred filed a

timely "Motion To Reconsider" pursuant to Rules 59 and 60 on the

grounds that the district court failed to consider his pending

motion to amend. The district court, construing Allred's motion as

a motion to alter or amend the judgment under Rule 59(e), found

that the amended complaint did not allege that any conspiratorial

events took place in Mississippi and that the amended complaint

relied on precisely the same basis as the earlier complaint—namely,

that the service of process by certified mail in Mississippi was

sufficient to establish personal jurisdiction. Accordingly, the

district court denied Allred's Rule 59(e) motion on January 9,

1996. Allred filed a timely notice of appeal.4

Discussion

Allred's sole contention on appeal is that the district court

erred in holding it lacked in personam jurisdiction over the Texas

defendants and Camille F. Gravel, Jr.

A district court's dismissal for want of personal

jurisdiction pursuant to Rule 12(b)(2) is subject to de novo

review. Jobe v. ATR Mktg., Inc., 87 F.3d 751, 753 (5th Cir.1996);

Wilson v. Belin, 20 F.3d 644, 647-48 (5th Cir.), cert. denied, 513

3
The district court had dismissed Charles C. Rush, initially
also a defendant in this action, for lack of subject matter
jurisdiction because Rush had filed a suggestion of bankruptcy.
4
Allred does not appeal the district court's dismissal of
Gravel, Brady & Berrigan, Charles C. Rush, James J. Brady, Michael
S. Baer, III, Helen G. Berrigan, or Charles G. Gravel.

5
U.S. 930, 115 S.Ct. 322, 130 L.Ed.2d 282 (1994). "When a

nonresident defendant presents a motion to dismiss for lack of

personal jurisdiction, the plaintiff bears the burden of

establishing the district court's jurisdiction over the

nonresident. The court may determine the jurisdictional issue by

receiving affidavits, interrogatories, depositions, oral testimony,

or any combination of the recognized methods of discovery." Stuart

v. Spademan, 772 F.2d 1185, 1192 (5th Cir.1985) (citing Thompson v.

Chrysler Motors Corp., 755 F.2d 1162, 1165 (5th Cir.1985);

Washington v. Norton Mfrg. Inc., 588 F.2d 441, 443 (5th Cir.),

cert. denied, 442 U.S. 942, 99 S.Ct. 2886, 61 L.Ed.2d 313 (1979));

see also Jobe, 87 F.3d at 753.

A federal district court sitting in diversity may exercise

personal jurisdiction only to the extent permitted a state court

under applicable state law. Cycles, Ltd. v. W.J. Digby, Inc., 889

F.2d 612, 616 (5th Cir.1989); Rittenhouse v. Mabry, 832 F.2d 1380,

1382 (5th Cir.1987). "The state court or federal court sitting in

diversity may assert jurisdiction if: (1) the state's long-arm

statute applies, as interpreted by the state's courts; and (2) if

due process is satisfied under the fourteenth amendment to the

United States Constitution." Cycles, 889 F.2d at 616 (citing

DeMelo v. Toche Marine, Inc., 711 F.2d 1260, 1265 (5th Cir.1983));

see also Jobe, 87 F.3d at 753; Rittenhouse, 832 F.2d at 1382;

Stuart, 772 F.2d at 1189.

It is undisputed that none of the appellees are or were ever

residents or citizens of Mississippi; the Texas defendants were at

6
all relevant times residents and citizens of Texas, and appellee

Gravel was at all relevant times a citizen and resident of

Louisiana. None of the appellees had an agent for service of

process in Mississippi, or engaged in business (or had any permit

to do so), or practiced law (or was licensed to do so), in

Mississippi; none represented parties in litigation in

Mississippi; none owned or leased property, or had any employees,

offices, bank accounts or telephone listings there, or advertised

or solicited business there. None traveled to Mississippi on a

regular basis. The only relevant conduct or connection on the part

of appellees related to Mississippi is the mailing from Dallas,

Texas, to Allred's Jackson, Mississippi law office of the third

party complaint and summons, and interrogatories, in the lawsuit

pending in the Middle District of Louisiana in which Allred was

counsel for the plaintiff, the Louisiana Commissioner of Insurance.

I. The Mississippi Long-Arm Statute

On appeal, Allred relies exclusively on the tort prong of the

Mississippi long-arm statute to support the exercise of

jurisdiction by the district court over the appellees.5 The

5
Mississippi's long-arm statute provides in relevant part:

"Any nonresident person, firm, general or limited
partnership, or any foreign or other corporation not
qualified under the Constitution and laws of this state
as to doing business herein, who shall make a contract
with a resident of this state to be performed in whole or
in part by any party in this state, or who shall commit
a tort in whole or in part in this state against a
resident or nonresident of this state, or who shall do
any business or perform any character of work or service
in this state, shall by such act or acts be deemed to be
doing business in Mississippi and shall thereby be

7
Mississippi long-arm statute is not coextensive with federal due

process, requiring an analysis of the scope of the reach of the

statute itself. See Cycles, 889 F.2d at 616-17 (noting that the

Mississippi long-arm statute has a "relatively restrictive scope");

Rittenhouse, 832 F.2d at 1383 (same).

Under the tort prong of the Mississippi long-arm statute,

personal jurisdiction is proper if any element of the tort (or any

part of any element) takes place in Mississippi. See, e.g., Smith

v. Temco, 252 So.2d 212, 216 (Miss.1971); Western Chain Co. v.

Brownlee, 317 So.2d 418, 421 (Miss.1975); Rittenhouse, 832 F.2d at

1384; Jobe, 87 F.3d at 753; Cycles, 889 F.2d at 619. As the

Mississippi Supreme Court has observed consistently:

"The tort is not complete until the injury occurs, and if the
injury occurs in this State then, under the ... statute, the
tort is committed, at least in part, in this State, and
personam jurisdiction of the nonresident tort feasor is
conferred upon the Mississippi court." Temco, 252 So.2d at
216; see also Anderson v. Sonat Exploration Co., 523 So.2d
1024, 1025 (Miss.1988).

Our cases, however, have been careful to distinguish actual injury

from its resultant consequences. "[C]onsequences stemming from the

actual tort injury do not confer personal jurisdiction at the site

or sites where such consequences happen to occur." Jobe, 87 F.3d

at 753 & n. 2 (observing that "[t]he term "injury' commonly denotes

the invasion of any legally protected interest of another" whereas

"the term "damage' is understood to mean the harm, detriment or

loss sustained by reason of an injury"); see also Cycles, 889 F.2d

subjected to the jurisdiction of the courts of this
state." Miss.Code Ann. § 13-3-57 (1996 Supp.) (emphasis
added).

8
at 619 ("We have held that with respect to Mississippi's long-arm

statute a tort occurs where and when the actual injury takes place,

not at the place of the economic consequences of the injury.");

Rittenhouse, 832 F.2d at 1384 (same); Estate of Portnoy v. Cessna

Aircraft Co., 730 F.2d 286, 290 (5th Cir.1984) (same).

At the outset, we reject Allred's reliance on Hyde

Construction Co. v. Koehring, 321 F.Supp. 1193 (S.D.Miss.1969), for

the proposition that "service of process on Allred in Mississippi

constituted the commission of a tort in Mississippi for purposes of

satisfying the requirements of the Mississippi long-arm statute."

Although the district court in Hyde, examining section 13-3-57's

statutory predecessor, acknowledged that the abuse of process tort

must "accrue" within the geographical limits of Mississippi and so

found, it nevertheless repeatedly emphasized what we think to have

been the determinative factor in its analysis: the defendant in

the abuse of process action had "domesticated itself or qualified

to do business within the State of Mississippi having appointed ...

[a] registered agent for service of process between [all relevant

dates]." Hyde, 321 F.Supp. at 1210 (noting that the defendant

corporation "was authorized to transact business in Mississippi").

Allred neither argued nor presented evidence that any defendant had

any contact whatsoever with Mississippi other than the service of

process by certified mail from Dallas, Texas to his Jackson,

Mississippi law office. To the extent that Hyde supports Allred's

questionable proposition, it must be limited to the case of a

person or entity subject to the general jurisdiction of the

9
Mississippi courts.

A. Malicious Prosecution

In Mississippi, malicious prosecution requires:

"(1) the institution or continuation of original judicial
proceedings, either criminal or civil; (2) by, or at the
instance of the defendants; (3) the termination of such
proceedings in plaintiff's favor; (4) malice in instituting
the proceedings; (5) want of probable cause in the
proceedings; and (6) the suffering of damages as a result of
the action or prosecution complained of." Mississippi Road
Supply Co. v. Zurich-American Ins. Co., 501 So.2d 412, 414
(Miss.1987) (citing Harvill v. Tabor, 240 Miss. 750, 128 So.2d
863, 864 (1961)).

Allred does not contend that elements two through five of the tort

of malicious prosecution occurred in Mississippi. Rather, Allred

argues primarily that his economic, reputational, and emotional

"injuries" set forth in his affidavit were suffered in Mississippi

and, therefore, support jurisdiction under the tort prong.

Appellees concede that the damages Allred alleges may have occurred

in Mississippi, but argue that damages, alone, are insufficient to

support personal jurisdiction under the Mississippi long-arm

statute. Appellees are correct.

As discussed above, this Circuit has recognized consistently

that Mississippi does not permit damages to serve as a proxy for

injury in the personal jurisdiction calculus. The concepts are

distinct and we must endeavor not to conflate the existence of an

injury—and hence the completed tort—with the presence of its

economic consequences. See Jobe, 87 F.3d at 753 (noting that,

especially in a commercial tort situation, collateral consequences

can be quite far-reaching). The injury suffered in a malicious

prosecution tort is the institution of criminal or civil

10
proceedings where the institution ought not to have occurred (and

occurred for an improper reason). Allred's damages-qua-injury

argument for personal jurisdiction under the Mississippi long-arm

statute flies in the face of our rather clear guidance in Jobe,

Cycles, Rittenhouse, and Portnoy.

Allred has alleged no facts that support the exercise of

personal jurisdiction through the use of the Mississippi long-arm

statute over his malicious prosecution claim. Allred's insistence

that the service of process by certified mail from out of state can

support jurisdiction under the first element of the malicious

prosecution tort is misplaced. Service of process on Allred in

Mississippi was not a prerequisite to the institution of judicial

proceedings against him in the Louisiana suit. A lawsuit is

commenced under the federal rules when the complaint is filed.

Fed.R.Civ.P. 2 ("There shall be one form of action to be known as

"civil action'."); Fed.R.Civ.P. 3 ("A civil action is commenced by

filing a complaint with the court."). In Louisiana, the filing of

a lawsuit both commences the action and tolls the statute of

limitation. See La.Code Civ. Proc. Ann. art. 421 (West 1960)("A

civil action is a demand for the enforcement of a legal right. It

is commenced by the filing of a pleading presenting the demand to

a court of competent jurisdiction."); La. Civ.Code Ann. art. 3463

(West 1994) ("An interruption of prescription resulting from the

filing of a suit in a competent court and in the proper venue or

from service of process within the prescriptive period continues as

long as the suit is pending."); accord Segura v. Frank, 630 So.2d

11
714, 727(La.), cert. denied, 511 U.S. 1142, 114 S.Ct. 2165, 128

L.Ed.2d 887 (1994). Even in Mississippi, Allred's preferred forum,

it is the filing of a lawsuit—and not the service of process—that

is the determinative event in the commencement of a lawsuit. See

M.R.C.P. 3(a) ("A civil action is commenced by filing a complaint

with the court."); Watters v. Stripling, 675 So.2d 1242, 1244

(Miss.1996); Erby v. Cox, 654 So.2d 503, 505 (Miss.1995) ("[D]oes

the simple filing of the complaint without process being issued

toll the statute of limitations? We answer in the affirmative.").

Stated simply, the injury that Allred complained of in his

malicious prosecution claim was the filing of the Louisiana

lawsuit, not the subsequent service of process. We have neither

found, nor been cited to, any relevant Mississippi authority that

supports the proposition that service of process is a necessary

element of the malicious prosecution tort in Mississippi.

B. Abuse of Process

In Mississippi, the elements of abuse of process are:

"(1) the party made an illegal use of the process, (2) the
party had an ulterior motive, and (3) damage resulted from the
perverted use of process." McLain v. West Side Bone & Joint
Ctr., 656 So.2d 119, 123 (Miss.1995) (citing Foster v. Turner,
319 So.2d 233, 236 (Miss.1975)).

For the reasons discussed above, we reject Allred's contention that

he can bootstrap his alleged damages incurred in Mississippi into

an injury to achieve personal jurisdiction over his abuse of

process claim for the purposes of the Mississippi long-arm statute.

Furthermore, as is readily apparent from the above quoted excerpt,

the abuse of process tort, in Mississippi as elsewhere, involves

12
the corruption of process—not merely the issuance of process

simpliciter.

The Mississippi Supreme Court has acknowledged that the abuse

of process tort does not address the case, as here, where the only

alleged abuse of process was the service of a summons without any

corruption or impropriety:

"What defendant complains of in his counterclaim is not based
on any perversion of any process, but simply the filing of the
suit.... Nothing unlawful was done under any process. It
cannot be argued that the process of the court was abused by
accomplishing a result not commanded by it or not lawfully
obtainable under it when the only process involved was the
simple summon to defend the suit." Edmonds v. Delta Democrat
Publishing Co., 230 Miss. 583, 93 So.2d 171, 175 (1957); see
also Foster, 319 So.2d at 235 ("[Abuse of process requires a]n
ulterior purpose, and the perversion of the process after its
issuance so as to accomplish a result not commanded by it or
not lawfully obtainable under it.") (citing Edmonds, 93 So.2d
at 174).

In Brown v. Edwards, 721 F.2d 1442, 1454 (5th Cir.1984), this Court

also addressed the point that Allred misunderstands concerning the

abuse of process tort. After considering the Restatement 's

description of the elements of the abuse of process tort, we

favorably quoted the comment:

" "The gravamen of the misconduct for which the liability
stated in this Section is imposed is not the wrongful
procurement of legal process or the wrongful initiation of
criminal or civil proceedings; it is the misuse of process,
no matter how properly obtained, for any purpose other than
that which it was designed to accomplish. Therefore, it is
immaterial that the process was properly issued, that it was
obtained in the course of proceedings that were brought with
probable cause and for a proper purpose, or even that the
proceedings terminated in favor of the person instituting or
initiating them. The subsequent misuse of the process ...
constitutes the misconduct for which the liability is
imposed....' " Brown, 721 F.2d at 1454-55 (quoting
Restatement (Second) of Torts § 682 cmt. a (emphasis in Brown
)).

13
Prosser and Keeton on Torts speaks even more directly to the

question of whether the mere service of process—without any

allegation that the service of process itself was somehow

perverted—constitutes an element of abuse of process:

"The essential elements of abuse of process, as the tort has
developed, have been stated to be: first, an ulterior
purpose, and second, a wilful act in the use of the process
not proper in the regular conduct of the proceeding. Some
definite act or threat not authorized by the process, or aimed
at an objective not legitimate in the use of the process, is
required; and there is no liability where the defendant has
done nothing more than carry out the process to its authorized
conclusion, even though with bad intentions.... There is, in
other words, a form of extortion, and it is what is done in
the course of negotiation, rather than the issuance or any
formal use of the process itself, which constitutes the tort."
Prosser and Keeton on Torts 898 (5th ed.1984) (emphasis
added); see also Brown, 721 F.2d at 1455 (same).

Accordingly, because the only activity alleged by Allred to have

taken place within Mississippi was the service of process by

certified mail from Texas to his Mississippi law office—an event

which is simply not an element (or part of an element) of the tort

of abuse of process—we hold that Allred failed to allege any facts

that would support personal jurisdiction over the defendants under

the tort prong of the Mississippi long-arm statute.

Allred's reliance on Simon v. United States, 644 F.2d 490

(1981), is similarly misplaced. Simon, unlike the facts here

presented, involved allegations of corrupt and perverted abuse of

process by the defendant within the forum state. In Simon the

abuse of process defendant deliberately had issued a subpoena

containing Simon's incorrect name and address in Louisiana. Id. at

492. As a result of the defendant's misrepresentation, Simon was

unable to be served in Louisiana. Id. The defendant, however,

14
informed the federal district court judge in Georgia that Simon had

in fact been served and the judge subsequently caused a "subpoena

ticket" to be issued in Louisiana. Id. United States marshals

subsequently served Simon personally in Louisiana, who left for

Georgia the next day. Id. Upon his arrival in Georgia, Simon was

immediately arrested. Id.

Although the Simon defendant's activities within the forum

state were quite limited, we find it significant that, unlike here,

the service of process by the federal marshals in Louisiana

resulted directly from the defendant's "intentional misuse of

process"—i.e., lying to the federal judge to cause the subpoena to

issue and then lying again about whether Simon had in fact been

served—and not merely the proper service of a defendant for

purportedly improper motives. Here, the service of process was

entirely proper and in accordance with the applicable rules.

In summary, we hold that Allred failed to allege that any

element of the abuse of process tort occurred in Mississippi: (1)

to the extent that the tort requires corruption or perversion of

process, neither has been alleged, and (2) to the extent that the

tort requires an improper motive, it is uncontroverted that all

decisions regarding the third-party complaint were made in either

Louisiana or Texas. Accordingly, we find that the district court

appropriately determined that Allred failed to establish the proper

jurisdictional prerequisites to support the exercise of personal

15
jurisdiction under the Mississippi long-arm statute.6

II. Due Process

Even were we to accept Allred's arguments concerning the

operation of the Mississippi long-arm statute, we are nevertheless

convinced that the exercise of personal jurisdiction by the

district court in Mississippi would violate due process.

The constitutional limitations on the reach of the personal

jurisdiction of a court are now quite familiar. The exercise of

personal jurisdiction over a nonresident defendant comports with

due process principles only when two requirements are met. First,

the nonresident defendant must have "purposefully availed himself

of the benefits and protections of the forum state by establishing

"minimum contacts' with that forum state." Felch v. Transportes

Lar-Mex, Sa De CV, 92 F.3d 320, 323 (5th Cir.1996) (citing Wilson

v. Belin, 20 F.3d 644, 647 (5th Cir.), cert. denied, 513 U.S. 930,

115 S.Ct. 322, 130 L.Ed.2d 282 (1994); International Shoe Co. v.

Washington, 326 U.S. 310, 315-17, 66 S.Ct. 154, 158, 90 L.Ed. 95

(1945)); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-77, 105

S.Ct. 2174, 2184, 85 L.Ed.2d 528 (1985). Second, the exercise of

personal jurisdiction over the nonresident defendant "must not

"offend "traditional notions of fair play and substantial justice."

6
We are also in complete agreement with the district court
that Allred's attempt to add an "allegation of conspiracy to the
complaint attaches no additional merit to the assertion that the
defendants' mere service of process on the plaintiff by mail in a
Louisiana lawsuit was sufficient to establish in personam
jurisdiction in Mississippi." Like his original complaint, his
amended complaint also fails to allege any conspiratorial
agreements or acts took place in Mississippi.

16
' " Felch, 92 F.3d at 323 (quoting Wilson, 20 F.3d at 647; Asahi

Metal Indus. Co. v. Superior Court of California, 480 U.S. 102,

113-15, 107 S.Ct. 1026, 1033, 94 L.Ed.2d 92 (1987)).

This Court recently summarized the minimum contacts inquiry as

follows:

"The "minimum contacts' prong of the inquiry may be further
subdivided into contacts that give rise to "specific' personal
jurisdiction and those that give rise to "general' personal
jurisdiction. Specific jurisdiction is appropriate when the
nonresident defendant's contacts with the forum state arise
from, or are directly related to, the cause of action.
General jurisdiction, however, will attach, even if the
nonresident defendant's contacts with the forum state are not
directly related to the cause of action, if the defendant's
contacts with the forum state are both "continuous and
systematic.' " Wilson, 20 F.3d at 647 (citing Helicopteros
Nacionales de Colombia, SA v. Hall, 466 U.S. 408, 413-16, 104
S.Ct. 1868, 1872, 80 L.Ed.2d 404 nn. 8-9 (1984)).

Only if the nonresident defendant has sufficient minimum contacts

with the forum state will the fairness of the exercise of personal

jurisdiction be evaluated.7

The attorney appellees' contacts with Mississippi do not

remotely approach the level required to support general

jurisdiction, and Allred does not contend otherwise. Rather,

Allred maintains that specific jurisdiction is appropriate because

the causes of action—malicious prosecution and abuse of process—are

7
"The fairness prong for personal jurisdiction requires
federal courts to consider (1) the burden upon the nonresident
defendant; (2) the interests of the forum state; (3) the
plaintiff's interest in securing relief; (4) "the interstate
judicial system's interest in obtaining the most efficient
resolution of controversies'; (5) "the shared interest of the
several States in furthering fundamental substantive social
policies.' " Bullion v. Gillespie, 895 F.2d 213, 216 n. 5 (5th
Cir.1990) (citing Asahi, 480 U.S. at 113-15, 107 S.Ct. at 1033
(quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 288-
90, 100 S.Ct. 559, 563, 62 L.Ed.2d 490 (1980))).

17
directly related to appellees' contacts with Mississippi. In

support of his position, Allred cites a number of defamation cases

permitting the exercise of specific jurisdiction upon the existence

of a single, purposeful contact with the forum state. See, e.g.,

Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804

(1984); Brown v. Flowers Indus., Inc., 688 F.2d 328 (5th

Cir.1982), cert. denied, 460 U.S. 1023, 103 S.Ct. 1275, 75 L.Ed.2d

496 (1983).

We are not persuaded that the defamation cases present an

appropriate line of precedent for Allred. In the defamation cases

cited by Allred, the allegedly tortious acts—the publication of

defamatory statements—were expressly aimed at the forum state and

the nonresident defendants knew that their acts would have an

impact on the plaintiff in the forum state. See, e.g., Calder, 465

U.S. at 787-90, 104 S.Ct. at 1486-87 (allegedly libelous article

about plaintiff's drinking habits published in 604,000 copies of

the National Enquirer sold in the forum state); Brown, 688 F.2d at

333 (single, defamatory telephone call directed at the forum

state). The service of process here, however, is qualitatively

different than the publication of a defamatory statement or

article. In our view, it is simply not a part of either

Mississippi's malicious prosecution or abuse of process tort; and,

even if it were, it would constitute only the smallest portion of

one element of the claim. This is not the case with the

publication element of a defamation tort. That the "effects" test

of Calder applies outside of the defamation context is clear; but

18
the effects test is not a substitute for a nonresident's minimum

contacts that demonstrate purposeful availment of the benefits of

the forum state. Any publication in this case occurred in

Louisiana, upon the filing in the federal court there of the third

party complaint, a public document. There was no publication in

Mississippi, the process and complaint simply arrived at Allred's

office there by mail in an envelope addressed to him. Any

"effects" in this case are essentially the effects of being sued in

the Louisiana case, and it is immaterial to these effects when,

where or how service was affected (unlike the relation between the

"effects" of a libel and the place of its publication).

We agree with the Seventh Circuit's pronouncement that:

"The Supreme Court did not intend the Calder "effects' test to
apply only to libel cases. However, the "effects' of the
intentional tort of libel in the forum state (i.e., the
plaintiff's residence) are perhaps more pronounced than the
"effects' of most other intentional torts. Nevertheless, the
key to Calder is that the effects of an alleged intentional
tort are to be assessed as part of the analysis of the
defendant's relevant contacts with the forum. Whether these
effects, either alone or in combination with other contacts,
are sufficient to support in personam jurisdiction will turn
upon the particular facts of each case." Wallace v. Herron,
778 F.2d 391, 395 (7th Cir.1985), cert. denied, 475 U.S. 1122,
106 S.Ct. 1642, 90 L.Ed.2d 187 (1986).

The defendants' contacts with Mississippi fall far short of the

minimum contacts mark.

Allred's arguments notwithstanding, we agree with the district

court and the appellees that Wallace presents a factually

indistinguishable case. In Wallace, an Indiana resident sued in

Indiana a California law firm and three of its attorneys for

malicious prosecution in connection with a lawsuit defendants had

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filed in California. Wallace, 778 F.2d at 392. Only one of the

California defendants had even been to Indiana (to take a

deposition in an unrelated case). Id. at 394. Wallace, the

plaintiff, argued that the defendants' service in Indiana of

interrogatories and discovery requests provided sufficient minimum

contacts to comport with due process. Id. The Seventh Circuit

affirmed the district court's dismissal for lack of sufficient

minimum contacts with the Indiana forum.

As in Wallace, the defendants in the present suit caused

process to be served by mail on Allred on behalf of their clients

in Louisiana federal district court pursuant to a federal lawsuit

in Louisiana. No other contacts with Mississippi have been

alleged. It would indeed be unreasonable to require defendants to

appear in Mississippi to defend this suit on the basis of such

attenuated contacts. See id. at 395 ("The defendants filed these

papers on behalf of their California clients in a California court

pursuant to a California lawsuit.... [Defendants] took no action

that created the necessary connection with Indiana for them to

reasonably anticipate being haled into court there.").

Accordingly, we hold that where process is issued in a

Louisiana lawsuit and is properly served in Mississippi on a

Mississippi resident by mailing from outside of Mississippi, such

service—absent any other Mississippi nexus—provides insufficient

contact with Mississippi to support the exercise of personal

jurisdiction by a Mississippi court over non-residents served

outside of Mississippi under the constraints of the due process

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clause.

Conclusion

Because the district court properly held it lacked authority

under the Mississippi long-arm statute to exercise personal

jurisdiction over the defendants-appellees and because the exercise

of personal jurisdiction by the Mississippi federal district court

would, in any event, be improper under the due process clause, the

district court's judgment is

AFFIRMED.

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