IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 00-60866
Summary Calendar
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TAMMY MEDINA,
Plaintiff-Appellant,
versus
CECIL MEDINA AND
KATHRYN LEE MCENIRY,
Defendants-Appellees.
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Appeal from the United States District Court for the
Southern District of Mississippi, Jackson Division
USDC No. 3:00-CV-6-BN
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May 29, 2001
Before JOLLY, WIENER, and PARKER, Circuit Judges.
PER CURIAM:*
Tammy Medina appeals the dismissal of her malicious
prosecution suit filed in district court against Cecil Medina and
Kathryn Lee McEniry for lack of personal jurisdiction. Finding no
error in the district court’s determination that both appellees
were not subject to personal jurisdiction in Mississippi, we
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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affirm.
Cecil and Tammy Medina were married in 1988, and resided in
North Carolina until their separation in 1992. After the
separation, Tammy Medina moved to Mississippi with the Medina’s
child.
On July 21, 1993, after a long attempt to locate his former
spouse and child for visitation purposes, Cecil Medina and his
lawyer, McEniry, filed an action in North Carolina state court to
modify an existing child custody decree that gave joint custody of
the child to Tammy Medina. The court found Tammy Medina in willful
contempt of court for not complying with visitation orders, and
custody was awarded to Cecil Medina. Thereafter, an arrest warrant
was issued for Tammy Medina by the North Carolina court for
unlawfully keeping the child outside of North Carolina with the
intent to violate the child custody order.
During this time, Tammy Medina had filed for custody of the
child in Mississippi state court. McEniry, a resident of North
Carolina and otherwise conducting no business in Mississippi,
represented Cecil Medina, also a resident of North Carolina, pro
hac vice in this matter. The Mississippi court found it had
concurrent jurisdiction over the custody matter with the North
Carolina court, and the warrant charging Tammy Medina with
intentional violation of the custody order was thereafter dismissed
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by a North Carolina District Attorney. Tammy Medina filed the
present malicious prosecution suit in the Southern District of
Mississippi soon after.
In order for a federal court sitting in diversity to exercise
personal jurisdiction over a non-resident defendant, the
requirements of the state long-arm statute and constitutional due
process protections must both be satisfied. For purposes of this
appeal, the Mississippi long-arm statute allows a court to assert
personal jurisdiction over a non-resident defendant who either
commits a tort in whole or part in Mississippi or does any business
or work in the state. Miss. Code Ann. § 13-3-57 (1999). The
appellant first argues that some portion of the malicious
prosecution tort--that is, the injury--took place in Mississippi.
However, this court has unequivocally held that “[t]he injury
suffered in a malicious prosecution tort is the institution of
criminal or civil proceedings where the institution ought not to
have occurred.” Allred v. Moore & Peterson, 117 F.3d 278, 283 (5th
Cir. 1997). As the action forming the foundation of Tammy Medina’s
malicious prosecution claim was instituted in North Carolina, that
suit cannot satisfy the personal jurisdiction prerequisites of the
Mississippi statute.
In addition, Tammy Medina argues that McEniry’s pro hac vice
representation of Cecil Medina in Mississippi was the equivalent of
“doing business” in the state for personal jurisdiction purposes.
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However, for the activities of a non-resident to satisfy the
statutory “doing business” requirement, they must be of “a
continuing and substantial” nature. McDaniel v. Ritter, 556 So.2d
303, 309 (Miss. 1989). We agree with the district court’s finding
that McEniry’s pro hac vice appearance in Mississippi court for a
single child custody dispute cannot be characterized as “continuing
and substantial” conduct, and therefore she is not subject to
personal jurisdiction under that prong of the Mississippi statute.
As a final matter, we further agree with the district court’s
finding that the exercise of personal jurisdiction over McEniry
based on her pro hac vice appearance would likely violate the
constitutional due process requirement of minimum contacts with the
forum state. We have held that “when a lawyer chooses to represent
a client in another forum, that in itself does not confer personal
jurisdiction if the claim does not arise from the contacts with the
forum.” Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 213 (5th
Cir. 1999) (citation omitted). As McEniry’s limited contact with
Mississippi occurred after the alleged malicious prosecution in
North Carolina, and because her representation of Cecil Medina in
Mississippi was based upon Tammy Medina’s later child custody suit
and not Cecil Medina’s initial child custody action in North
Carolina, we find McEniry’s contacts with Mississippi to be
insufficient to authorize an exercise of personal jurisdiction over
her under the United States Constitution.
4
Based on the foregoing reasons, the judgment of the district
court granting dismissal as to both defendants for lack of personal
jurisdiction is
A F F I R M E D
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