1

United States Court of Appeals,

Fifth Circuit.

No. 95-60332.

Tony B. JOBE, Assignee of Air New Orleans, Inc., PlaintiffAppellant,

v.

ATR MARKETING, INC.; Avions De Transport Regional, (G.I.E.);

Aerospatiale, S.N.I.; Finmeccanica S.p.A., Individually and d/b/a

Alenia (a division of Finmeccanica) a/k/a Aeritalia S.p.A. and the

successor in the Interest of Aeritalia; Aerospatiale, Inc.;

Defendants A-M, Defendants-Appellees.

July 11, 1996.

Appeal from the United States District Court for the Southern

District of Mississippi.

Before JOLLY, DUHÉ and STEWART, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The question before us on appeal is whether the district court

erred in dismissing this diversity case for lack of personal

jurisdiction under Mississippi's long-arm statute. Finding no

error, we affirm.

I

Tony B. Jobe, former president and assignee in bankruptcy of

Air New Orleans, Inc. ("ANO"), a now defunct commuter airline,

brought this breach of contract and tort action in the United

States District Court for the Southern District of Mississippi on

behalf of ANO's bankrupt estate. Jobe sued a group of ANO's former

business collaborators, all of whom are nonresidents of the state

of Mississippi. The defendant group includes: ATR Marketing, Inc.

("ATR"), a District of Columbia corporation; Aerospatiale, S.N.I.,
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a French corporation; Aerospatiale, Inc., a New York corporation;

Finmeccanica, S.p.A., an Italian corporation; and Avions de

Transport Regional (G.I.E.), a group organized under the laws of

France. Jobe, a Louisiana resident, alleges in his amended

complaint that the defendants intentionally negotiated in bad faith

to sell six commuter airplanes to ANO. Instead of consummating the

sale with ANO, Jobe contends that the defendants breached their

agreement with ANO and sold a fleet of approximately fifty aircraft

to Continental Airlines. In addition, Jobe alleges that ANO relied

to its detriment on the defendants' false representations, that the

defendants disclosed confidential information to Continental

Airlines, and that the defendants' tortious conduct led to ANO's

financial demise. In January 1988, ANO filed for bankruptcy

protection in the United States Bankruptcy Court for the Eastern

District of Louisiana. Months after filing its bankruptcy

petition, ANO began renting operations and maintenance facilities

at the Gulfport, Mississippi airport in May 1988. According to

Jobe's sworn affidavit, all of ANO's postpetition operations,

including its business in Mississippi, ceased by June 1988. ANO's

estate is currently involved in Chapter 7 bankruptcy proceedings.

After Jobe filed this action in Mississippi, the district

court ordered that discovery should be limited to the

jurisdictional issue and subsequently dismissed Jobe's complaint

for lack of personal jurisdiction. The district court found that

Jobe was not a Mississippi resident, that the alleged torts did not

take place in whole or in part in Mississippi and that no part of
 

1Mississippi's long-arm statute provides in relevant part:

Any nonresident ... 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 subjected to the jurisdiction of the courts

of this state.

Miss.Code Ann. § 13-3-57 (Supp.1995). 

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Mississippi's long-arm statute1 could be construed to confer

jurisdiction over the nonresident defendants.

On appeal, Jobe relies solely on the "tort-prong" of

Mississippi's long-arm statute to support his contention that

personal jurisdiction over these defendants is proper. The

statute's tort-prong provides for personal jurisdiction over any

nonresident who commits a tort in whole or in part within the state

of Mississippi against a resident or nonresident of the state.

Miss.Code Ann. § 13-3-57 (Supp.1995).

II

We review de novo a dismissal for lack of personal

jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2). Kevlin Servs.,

Inc. v. Lexington State Bank, 46 F.3d 13, 14 (5th Cir.1995). When

a nonresident defendant moves to dismiss for lack of personal

jurisdiction, the plaintiff bears the burden of establishing the

district court's jurisdiction over the nonresident. Wilson v.

Belin, 20 F.3d 644, 648 (5th Cir.1994). In determining whether
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personal jurisdiction exists, the trial court is not restricted to

a review of the plaintiff's pleadings. It may, as the district

court did in this case, determine the jurisdictional issue by

receiving affidavits, interrogatories, depositions, oral testimony,

or any combination of the recognized methods of discovery. Colwell

Realty Investments v. Triple T. Inns of Arizona, 785 F.2d 1330 (5th

Cir.1986).

In a federal diversity suit, the reach of federal

jurisdiction over nonresident defendants is measured by a two-step

inquiry. Smith v. DeWalt Products Corp., 743 F.2d 277, 278 (1984).

First, the law of the forum state must provide for the assertion of

such jurisdiction; and, second, the exercise of jurisdiction under

state law must comport with the dictates of the Fourteenth

Amendment Due Process Clause. Id. However, if Mississippi law

does not provide for the assertion of personal jurisdiction over

the defendants, it follows that we need not consider the due

process issue. Id.; Cycles, Ltd. v. W.J. Digby, Inc., 889 F.2d

612, 616 (5th Cir.1989).

In construing the tort-prong of Mississippi's long-arm

statute, the Mississippi Supreme Court has held that personal

jurisdiction over a defendant who allegedly committed a tort is

proper if any of the elements of the tort—or any part of an

element—takes place in Mississippi. Smith v. Temco, Inc., 252

So.2d 212 (Miss.1971). Although the specific elements of a

particular tort will vary, the conventional tort elements in a

negligence action are duty, breach of duty, proximate causation and
 

2The term "injury" commonly denotes the invasion of any

legally protected interest of another. RESTATEMENT (SECOND) OF

TORTS, § 7 (1965). In contrast, the term "damage" is understood

to mean the harm, detriment or loss sustained by reason of an

injury. BLACK'S LAW DICTIONARY 351 (5TH ED.1979). 

 

3Courts in jurisdictions with long-arm statutes comparable

to that of Mississippi have reached the same result. For

example, the United States District Court for the Southern

District of New York held that the financial consequences of a

conversion are not sufficient to invoke jurisdiction under New

York's long-arm statute. Chemical Bank v. World Hockey Assoc.,

403 F.Supp. 1374, 1380 (S.D.N.Y.1975). In analyzing the site of

the injury, the court in Chemical Bank noted that "in a

commercial tort situation the place of the injury will usually be

deemed to be the place where the critical events associated with

the dispute took place." Id. (internal quotations and citations

omitted). The court concluded that the critical events in that

case were the crucial dealings and negotiations among the parties

(which took place outside of New York). The mere fact that the

plaintiff was located in New York and experienced financial

consequences there did not suffice for long-arm jurisdiction. 

Id.; see also Wenz v. Crystal, 55 F.3d 1503, 1508 (10th

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injury.2 Palmer v. Anderson Infirmary Benevolent Ass'n., 656 So.2d

790, 794 (Miss.1995). A tort is complete when, and personal

jurisdiction lies where, the actual injury occurs. Smith v. Temco,

252 So.2d at 216; see also Rittenhouse v. Mabry, 832 F.2d 1380,

1384 (5th Cir.1987). In determining where the injury occurred for

jurisdictional purposes, actual injury must be distinguished from

its resultant consequences, such as pain and suffering, economic

effects or other collateral consequences that often stem from the

actual injury. Recognizing that such collateral consequences may

be far-reaching (particularly in a commercial tort situation such

as the one before us), our precedent holds that consequences

stemming from the actual tort injury do not confer personal

jurisdiction at the site or sites where such consequences happen to

occur.3 Cycles, 889 F.2d at 619 (tort of conversion did not take
Cir.1995) (in tort action for wrongful disbursal of funds from a

London account, injury occurred in London; economic consequences

that plaintiff suffered in Colorado were insufficient to

establish personal jurisdiction under the Colorado long-arm

statute). 

 

4In urging us to find the commission of tortious acts in

Mississippi, Jobe appears to confuse the arguably distinct

concepts of actual injury and damage sustained by reason of an

injury. See supra note 2. 

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place in whole or in part in Mississippi, even though the plaintiff

may have suffered economic consequences in Mississippi);

Rittenhouse, 832 F.2d at 1384 (plaintiff's continuing pain and

discomfort suffered in Mississippi following her return to the

state did not qualify as a tortious occurrence in Mississippi);

Estate of Portnoy v. Cessna Aircraft Co., 730 F.2d 286, 290 (5th

Cir.1984) (in construing Mississippi's long-arm statute, court held

that a tort occurs when and where the actual injury or accident

takes place, but does not occur at the site of the economic

consequences of that injury); see also Prejean v. Sonatrach, Inc.,

652 F.2d 1260, 1270 (5th Cir.1981).

III

Focusing on the site of ANO's alleged injuries and damages,4

Jobe argues that the nonresident defendants in this case are

subject to long-arm jurisdiction because they committed torts, at

least in part, within the state of Mississippi. Jobe claims that

the defendants were responsible for the following tortious conduct,

which resulted in damages being suffered in Mississippi:

detrimental reliance, disclosure of confidential information in

breach of an agreement, breach of the covenant of good faith and
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fair dealing, breach of fiduciary duty, tortious interference with

business relations or prospective business relations, unfair

competition, gross negligence, breach of contract and conspiracy to

defraud. Because ANO lost business, revenues, goodwill and the

ability to grow and prosper within Mississippi, Jobe maintains that

ANO was injured in Mississippi, thereby subjecting the defendants

to the jurisdiction of the district court. Additionally, Jobe

argues that the injury element occurred in the state because

Mississippi travelers were denied the benefits of ANO's flights,

and because a large number of ANO's employees, who were residents

of Mississippi, lost their jobs.

Based on our review of the record and the briefs, and our

consideration of the presentations at oral argument, it is clear to

us that the "injuries" alleged to have occurred in Mississippi are

nothing more than the economic consequences and other miscellaneous

fallout that can be expected to trail in the wake of a failed

airline or other business. Jobe concedes in his brief that no

personal jurisdiction exists if the injury alleged is only a

collateral consequence of extra-state activity. This, however, is

precisely the factual situation reflected in the record before us.

Jobe's pleadings and the statements made in his sworn affidavit

establish that the actual injury (if any) suffered by ANO was an

aborted business deal. This injury occurred and was completed

outside of Mississippi in 1987 when defendant ATR sold a fleet of

approximately fifty-five aircraft to Continental with the alleged

intent of breaching its agreement for the sale of six aircraft to
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ANO. Based on Jobe's pleadings, an actual injury also may have

occurred when and where the defendants misappropriated ANO's

confidential business plan and disclosed that information to ANO's

competitors. Jobe does not claim, and no evidence in the record

indicates, that any of these critical events took place in

Mississippi. Indeed, the record evidence is to the contrary:

ANO's principal place of business when the defendants conducted

their alleged tortious activities was Metairie, Louisiana; the

alleged tortious conduct culminated in ANO's financial ruin and

bankruptcy filing in the Eastern District of Louisiana in January

1988; ANO's actual injuries and many of the economic consequences

resulting from those injuries (including its bankruptcy filing)

occurred well-before ANO attempted to shift its operations from

Louisiana to Gulfport, Mississippi in May 1988. Accepting ANO's

pleadings and allegations as true, it is nonetheless clear on this

record that ANO's actual injuries occurred and were completed

outside of Mississippi.

We therefore hold that the Mississippi injuries alleged by

Jobe are only collateral consequences of ANO's actual injuries.

Having failed to show that the defendants committed a tort in whole

or in part within the state of Mississippi, it follows that there

is no personal jurisdiction pursuant to Mississippi's long-arm

statute over the defendants to this lawsuit. E.g., Cycles, 889

F.2d at 619. The district court's dismissal is

AFFIRMED.