Robinson v. Knight Protective Service, Inc. et al
Filing
25
ORDER granting 14 Motion to Dismiss for Lack of Jurisdiction Signed by Honorable David C. Bramlette, III on 3/31/2014 (ECW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
JACINTA ROBINSON
PLAINTIFF
VS.
CIVIL ACTION NO. 5:12-cv-60(DCB)(MTP)
KNIGHT PROTECTIVE SERVICE, INC.;
KNIGHT PROTECTIVE SERVICE OF
LOUISIANA, INC.; JOHN DOES 1-5;
AND XYZ CORPORATIONS 1-5
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This cause is before the Court on the defendant Knight
Protective Service, Inc. (“Knight”)’s Motion to Dismiss for Lack of
Personal Jurisdiction (docket entry 14) pursuant to Fed.R.Civ.P.
12(b)(2).
Having
carefully
plaintiff’s
response,
the
considered
memoranda
of
the
the
motion
and
the
parties
and
the
applicable law, and being fully advised in the premises, the Court
finds as follows:
The plaintiff, Jacinta Robinson (“Robinson”), a Mississippi
resident, alleges in her Complaint that she was employed by Knight1
(a Maryland corporation authorized to do business in Louisiana) as
a security guard beginning in 2007.
In March of 2009, she took a
leave of absence for medical reasons. In May of 2009, she received
a letter instructing her to return her duty belt, a Smith & Wesson
.38 caliber revolver, and other duty-related items.
1
The plaintiff
The plaintiff admits that Knight’s co-defendant Knight
Protective Service of Louisiana, Inc., was not her employer and
is not a proper defendant. Plaintiff’s Memorandum, p. 3.
alleges that she successfully returned the items in August of 2009.
Complaint, ¶ 8.
2009
the
The plaintiff further alleges that in October of
defendant
submitted
information
to
law
enforcement
authorities in East Baton Rouge Parish, Louisiana, causing an
arrest warrant to be issued for her arrest.
The plaintiff was
subsequently arrested in Adams County, Mississippi, in September of
2010. Complaint, ¶¶ 8-9. She was then transferred to Baton Rouge,
Louisiana, where she remained until her arraignment on September
23, 2010. Complaint, ¶ 9. Alleging that the criminal charges were
ultimately terminated in her favor on May 4, 2011, the plaintiff
brings her action against the defendant for malicious prosecution
under Mississippi law.
Complaint, ¶¶ 9-10.
Knight moves for dismissal pursuant to Fed.R.Civ.P. 12(b)(2)
on grounds that it is not subject to the personal jurisdiction of
this Court.
authorized
Robinson asserts that Knight “was duly qualified and
to
do
business
in
the
State
of
Mississippi.”
Plaintiff’s Memorandum, ¶ 6. However, Knight, in its Memorandum in
support
of
its
Motion
to
Dismiss,
shows
that
it
filed
an
application for authorization to conduct business in Mississippi in
2008, and that the application was not renewed and was allowed to
lapse in December of 2009. Furthermore, Knight asserts that it has
never conducted business in Mississippi.
Memorandum, p. 2.
When a nonresident defendant moves to dismiss for lack of
personal
jurisdiction,
the
plaintiff
2
bears
the
burden
of
establishing the court’s jurisdiction over the nonresident. Allred
v. Moore & Peterson, 117 F.3d 278, 281 (5th Cir. 1997).
In a
federal diversity suit, the reach of personal jurisdiction over a
nonresident defendant is measured by a two-step inquiry.
ATR Marketing, Inc., 87 F.3d 751, 753 (5th Cir. 1996).
Jobe v.
First, the
law of the forum state must provide for the assertion of such
jurisdiction.
state
law
Id.
must
Second, the exercise of jurisdiction under
comport
with
Amendment Due Process Clause.
extend
its
jurisdiction
Constitution.”
to
the
Id.
dictates
of
the
Fourteenth
“Mississippi has not chosen to
the
limits
permitted
by
the
Washington v. Norton Mfg., Inc., 588 F.2d 441, 444
(5th Cir. 1979)(citing Perkins v. Benguet Consolidated Mining Co.,
342 U.S. 437 (1952)(states are not required to assert jurisdiction
to the extent permitted by the Due Process Clause if they do not
choose to do so)).
See also Cycles, Ltd. v. W.J. Digby, Inc., 889
F.2d 612, 616-17 (5th Cir. 1989)(noting that Mississippi’s long-arm
statute has a “relatively restrictive scope”).
First, in construing the law of the forum state, the Court
looks to Mississippi’s long-arm statute, which provides:
Any non-resident 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
3
doing business in Mississippi, and shall thereby be
subjected to the jurisdiction of the courts of this
state. Service of summons and process upon the defendant
shall be had or made as is provided by the Mississippi
Rules of Civil Procedure.
Miss. Code Ann. § 13-3-57.
Second, the Court considers whether its exercise of personal
jurisdiction over the defendant would comport with due process.
The due process requirement is satisfied when (1) the nonresident
has certain “minimum contacts” with the forum state, and (2)
subjecting the nonresident defendant to the jurisdiction of the
forum would not “offend traditional notions of fair play and
substantial justice.”
International Shoe Co. v. Washington, 326
U.S. 310, 316 (1945).
This means that the nonresident must have
done some act or acts which make it reasonable for the nonresident
to expect to be brought to suit in the forum.
Thus, the focus of
the due process inquiry is on whether the nonresident, by virtue of
its contact(s) with the forum state, can be said to have “purposely
availed [it]self of the benefits and protections of” the forum’s
laws.
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985).
The Fifth Circuit has recognized that the “minimum contacts”
inquiry has been “refined to determine two types of personal
jurisdiction - specific and general.” Ruston Gas Turbines, Inc. v.
Donaldson Co., Inc., 9 F.3d 415, 419 (5th Cir. 1993).
A state exercises “specific jurisdiction” over a
nonresident defendant when the lawsuit arises from or
relates to the defendant’s contact with the forum state.
... In contrast, when the act or transaction being sued
4
upon is unrelated to the defendant’s contacts with the
forum state, personal jurisdiction does not exist unless
the defendant has sufficient “continuous and systematic
contacts” with the forum to support an exercise of
“general jurisdiction.”
Id. (citations omitted).
This Court recognizes that even though
the concepts of specific and general jurisdiction are separate and
distinct, both concepts “will inevitably borrow from one another in
deciphering the intent of the defendant’s actions as well as the
foreseeability that the defendant might be haled into court in this
state.” Tellus Operating Group, LLC v. R&D Pipe Co., 377 F.Supp.2d
604, 609 (S.D. Miss. 2005).
Attached to Knight’s 12(b)(2) motion is an affidavit of Matt
Sipos, Chief Financial Officer of Knight, which contains the
following attestations:
3.
Knight Protective Service, Inc., is incorporated in
the state of Maryland, with its principal place of
business being Greenbelt, Maryland.
4.
Knight
Protective
Service,
Inc.,
has
never
conducted business in the state of Mississippi, and
has never owned any property in the state of
Mississippi. Further, Knight Protective Service,
Inc., is not registered to do business in the state
of
Mississippi,
has
never
advertised
in
Mississippi, has never maintained an office in
Mississippi, and has never sold goods, entered into
any contracts, or provided any services in the
state of Mississippi. Except during the time as
described below in paragraph 6, Knight Protective
Service, Inc., has never had a registered agent for
service of process in the state of Mississippi.
5.
At the time of plaintiff’s employment, Knight
Protective Service, Inc., held a contract with the
Federal Protection Service to provide security
services in Louisiana.
5
6.
In 2008, because we were operating in a neighboring
state, we became authorized to do business in the
state of Mississippi so that we would be prepared
in the event that our duties in Louisiana
necessitated our personnel having to perform any
duties in Mississippi. However, to the best of my
knowledge, the need for personnel to perform any
duties in Mississippi or for Knight Protective
Service, Inc., to conduct any business in
Mississippi never arose, and no personnel of Knight
Protective Service, Inc., ever performed duties in
Mississippi.
We did not renew the Authorization
and it lapsed in 2009.
Sipos Affidavit, ¶¶ 3-6.
The plaintiff bears the burden of establishing this Court’s
jurisdiction. Allred, 117 F.3d at 281. Robinson offers nothing to
refute the defendant’s affidavit, except the fact that at one time
Knight was qualified to do business in the State of Mississippi.
Robinson relies on Read v. Sonat Offshore Drilling, Inc., 515
So.2d 1229 (Miss. 1987), in which the Mississippi Supreme Court
concluded that “if a foreign corporation is qualified to do
business in the State of Mississippi, even though it may not be
doing business, its agent for process may be served, and the courts
have personal jurisdiction of that corporation.” Id. at 1231. The
parties differ on their interpretation of Read regarding the effect
of administrative dissolution of a foreign corporation.
Knight’s authorization with the Secretary of State’s office
was administratively dissolved on December 22, 2009.
Mississippi
Secretary of State’s Business Services website, https://business.
sos.state.ms.us.
Robinson contends that if the corporation was
6
qualified to do business in Mississippi at the time of accrual of
the cause of action, jurisdiction can be exercised over the
defendant.
Knight asserts that the corporation must be qualified
to do business at the time of service of process.
The Court finds
that, assuming Robinson is correct, the Court nevertheless does not
have personal jurisdiction over Knight because under Mississippi
law, “a cause of action for malicious prosecution accrues on the
day the criminal proceedings are terminated in the favor of the
plaintiff.”
2003).
Coleman v. Smith, 841 So.2d 192, 194 (Miss. App.
In this case, Knight’s corporate status in Mississippi was
administratively dissolved on December 22, 2009, and the criminal
proceedings against Robinson were terminated in her favor on May 4,
2011.
Furthermore, even assuming that Mississippi law compelled a
finding that Knight was qualified to do business in Mississippi at
the relevant time, Robinson is unable to meet the due process prong
of personal jurisdiction. As explained in Norfolk Southern Ry. Co.
v. Burlington Northern, 2005 WL 1363210 (S.D. Miss. June 2, 2005),
being qualified to do business and actually doing business are not
synonymous for purposes of the due process clause:
Indeed, the Fifth Circuit has specifically rejected the
notion that merely registering to do business and
appointing an in-state agent for service of process
automatically confer general personal jurisdiction over
a nonresident defendant, or act as consent to a court’s
jurisdiction.
See Wenche Siemer v. The Learjet
Acquisition Corp., 966 F.2d 179, 180-84 (1992); see also
Ratliff v. Cooper Laboratories, Inc., 444 F.2d 745, 748
7
(4th Cir. 1971)(“[a]pplying for the privilege of doing
business is one thing, but the actual exercise of that
privilege is quite another”; due process requires more
than
“mere
compliance
with
state
domestication
statutes”); Lyons v. Swift Transp. Co., Inc., 2001 WL
1153001, *6-7 (E.D. La. [Sept. 26, 2001])(Vance,
J.)(“regardless of the existence of an agent for service
of process, the exercise of personal jurisdiction over a
non-resident defendant must nevertheless comport with the
principles of due process”); Leonard v. USA Petroleum
Corp., 829 F.Supp. 882, 891 (S.D. Tex. 1993)(“Consent [to
jurisdiction] requires more than legislatively mandated
compliance with state laws.”); Jones v. Family Inns of
America, 1989 WL 57130, *1 (E.D. La. May 23,
1989)(defendant’s sole contact with forum state appointed agent for service of process - does not satisfy
minimum contacts requirement of International Shoe).
.
.
.
Nor is it determinative that the Mississippi Supreme
Court, in Read, concluded that registering to do business
and appointing an in-state agent for service of process
operates as consent to personal jurisdiction in
Mississippi state and federal courts. Compliance with
the constitutional due process limitations on personal
jurisdiction is a question of federal, not state, law
with regard to which this court is not bound by the
decisions of the Mississippi Supreme Court.
Id. at *3.
In this case, it is uncontroverted that Knight did not
do any actual business in the state of Mississippi.
Thus, even if
this Court were to conclude that it had personal jurisdiction over
the defendant through the “doing business” prong of Mississippi’s
long-arm
statute,
the
due
process
clause
of
the
Fourteenth
Amendment prevents the Court from exercising personal jurisdiction
over Knight.
The plaintiff also asserts that personal jurisdiction over the
defendant is proper under the tort prong of the long-arm statute.
8
“A
federal
district
court
sitting
in
diversity
may
exercise
personal jurisdiction only to the extent permitted a state court
under applicable state law.”
Allred, 117 F.3d at 281 (citing
Cycles, 889 F.2d at 616; Rittenhouse v. Mabry, 832 F.2d 1380, 1382
(5th Cir. 1987)).
As with the doing business prong, the Court may
only exercise jurisdiction under the tort prong of the long-arm
statute if (1) the long-arm statute applies, as interpreted by the
state courts of Mississippi; and (2) due process is satisfied under
the
Fourteenth
Amendment.
Id.
(citing
Cycles,
889
F.2d
at
616)(additional citations omitted)).
Under the tort prong, “personal jurisdiction is proper if any
element of the tort (or any part of any element) takes place in
Mississippi.”
Id. (citations omitted).
“The tort is not complete
until the injury occurs, and if the injury occurs in [Mississippi]
then, under the ... statute, the tort is committed, at least in
part, in this State, and personam jurisdiction of the nonresident
tortfeasor is conferred upon the Mississippi court.”
Smith v.
Temco, 252 So.2d 212, 216 (Miss. 1971).
The Fifth Circuit, however, has been “careful to distinguish
actual injury from its resultant consequences.”
at 282.
Allred, 117 F.3d
“[C]onsequences stemming from the actual tort injury do
not confer personal jurisdiction at the site or sites where such
consequences
happen
to
occur.”
Id.
(quoting
Jobe
v.
ATR
Marketing, Inc., 87 F.3d at 751, 753 & n.2 (observing that “[t]he
9
term
‘injury’
protected
commonly
interest
of
denotes
the
another”
invasion
whereas
the
of
any
term
legally
‘damage’
is
understood to mean the harm, detriment or loss sustained by reason
of an injury”); also citing Cycles, 889 F.2d 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)).
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, 128 So.2d 863, 864
(1961)).
Only the sixth element, “damages,” could be said to have taken
place, in part, in Mississippi.
See Allred, 117 F.3d at 282.
In
response to the defendant’s motion, the plaintiff states: “When
Knight instituted the arrest warrant for Plaintiff, Knight was
aware that Plaintiff was a resident of the State of Mississippi,
and that there was a greater likelihood that Plaintiff would be
arrested
in
the
State
of
Mississippi
10
than
in
the
State
of
Louisiana.”
Plaintiff’s Memorandum, p. 2.
This is clearly not
enough to satisfy the tort prong of the long-arm statute.
In
Allred, the Fifth Circuit, interpreting Mississippi’s long-arm
statute in the context of an abuse of process/malicious prosecution
claim, held that “the abuse of process tort must ‘accrue’ within
the geographical limits of Mississippi,” and that the defendants
had did not have “any contact whatsoever with Mississippi other
than the service of process by certified mail from Dallas, Texas to
[Allred’s] Jackson, Mississippi law office.”
Id. at 282-83.
Like Allred, Robinson “does not contend that elements two
through five of the tort of malicious prosecution occurred in
Mississippi.”
primarily
that
Id. at 283.
[her]
Also like Allred, Robinson “argues
economic,
reputational,
and
emotional
‘injuries’ ... were suffered in Mississippi and, therefore, support
jurisdiction under the tort prong.”
Id.
The defendants in Allred
conceded that Allred’s damages may have occurred in Mississippi,
but argued that “damages, alone, are insufficient to support
personal jurisdiction under the Mississippi long-arm statute.” Id.
The Fifth Circuit held that the defendants were correct:
[T]his
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
11
institution of criminal or civil 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,2 Cycles,3 Rittenhouse,4 and Portnoy.5
Id. (emphasis in original)(footnotes added). For the same reasons,
the Court finds that Robinson in not entitled to utilize the tort
prong of Mississippi’s long-arm statute.
Finally, and alternatively, the Court observes that personal
jurisdiction over Knight is prohibited on additional grounds under
the due process clause.
It is clear from the facts of this case
that the elements of Robinson’s claim arose in Louisiana, not
Mississippi, and Knight has had no contacts with Mississippi other
than becoming qualified to do business in Mississippi at one time
(but not actually having done any business here).
The Fifth
Circuit has stated that “[w]hen ... the cause of action does not
arise out of a non-resident defendant’s contact with the forum
state, those contacts must be ‘systematic and continuous’ so as to
afford what is commonly called general jurisdiction.” Rittenhouse,
832 F.2d at 1390.
The evidence in this case demonstrates that
Knight has had no contact with Mississippi, and certainly not any
2
87 F.3d 751 (5th Cir. 1996).
3
889 F.2d 612 (5th Cir. 1989).
4
832 F.2d 1380 (5th Cir. 1987).
5
730 F.2d 286 (5th Cir. 1984).
12
that
could
be
characterized
as
“systematic
and
continuous.”
Consequently, any attempt to exercise jurisdiction by this Court
would offend traditional notions of fair play and substantial
justice, and would violate the defendant’s right to due process.
The plaintiff has failed to demonstrate any grounds for this
Court to exercise personal jurisdiction over the defendant, and
this case must therefore be dismissed without prejudice.
Accordingly,
IT IS HEREBY ORDERED that the defendant Knight Protective
Service, Inc.’s Motion to Dismiss for Lack of Personal Jurisdiction
(docket entry 14) is GRANTED, and this case is dismissed without
prejudice.
A final judgment of dismissal on grounds of lack of
personal jurisdiction shall follow.
SO ORDERED, this the 31st day of March, 2014.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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