Vernon Eugene Bracewell v. Nicholson Air Services, Inc., a Maryland Corporation D/B/A Cumberland Air Lines and Cumberland Air Lines, Inc.
748 F.2d 1499
11th Cir.
1984
Check Treatment

*3 running dent airline without afoul of the VANCE, Before RONEY concepts play” of “fair and “substantial SIMPSON, Judges, Senior Circuit justice” process in the due embodied clause Judge. of the Fourteenth Amendment. SIMPSON, Judge: Senior Circuit dismissal, This court reversed the hold Bracewell, ing complaint that the of the Eugene Vernon a resident of diversity literally in the the filed a action satisfied of the against Long Northern District of Nich- Arm Statute and that dismissal on Services, Inc., Maryland Corpo- olson grounds untimely constitutional if en ration not licensed to do business in Geor- prior discovery tered because “Informa gia, injuries deplaning for received while at tion as to defendant’s contacts with the intra-Maryland flight an the conclusion of of or lack of them State is neces operated by airplane owned and aboard sarily more within the defendant’s knowl Air- Nicholson under the name Cumberland edge plaintiff’s”. that than the Bracewell purchased lines. had his ticket Services, Inc., v. Nicholson Air 680 F.2d flight Air- for the Cumberland from Delta (11th Cir.1982), (Bracewell I). 104-05 lines, corporation headquarters with day One before the scheduled trial Atlanta, Georgia, at a Delta ticket office case, of the defendants filed a “motion for mall, Georgia shopping in a and on located summary judgment” per on the issue of sale, process upon the of that served basis jurisdiction. allowing par sonal After the Georgia Long under the Nicholson memoranda, grant the court ties submit § 9-10-91(1) Statute, Off.Code Ga.Ann. ed the motion and dismissed the case based (1984), then codified at Ga.Code Ann. complaint, interroga its review § (1981), 24-113.1(a) provides per- tories and affidavits.1 part: tinent per- We find court’s

A court of this state exercise any ground dismissing inap nonresident the case sonal over first arising propriately terminology to a cause of action from ... as focuses on the substance, any misinterprets of the acts ... enumerated this exclusion of state section, in the same manner as if he Code ignores law and the doctrine of the law of state, person if in a resident of this and therefore cannot withstand the case agent he: through an or any recognized challenge under standard of state; (1) any Transacts business review: plaintiff allegation bases his personal jurisdiction upon Off.Code of the to dismiss suit for Nicholson moved § 9-10-91(1) which allows Ga.Ann. personal jurisdiction. district

want personal allegations of the com- courts in to exercise the reviewed court 1973); (5th judge incorrectly Rosemound Sand parties and the district Cir. 1. The Co., judgment Lambert Sand & Gravel entered below as a "sum- & Gravel Co. v. the describe Cir.1972). (5th Accordingly, entry summary judg- mary judgment”. F.2d 417-18 solely judg- judgment challenging as a the we will refer to the on motions ment required will not address the mer- nor authorized ment of dismissal and the court is neither argument that the court com- matters outside its of Bracewell’s if the court must refer to violating local rules pleadings adjudicating merits of mitted error in the reversible Woody, governing summary judgment. Baxley ex rel. motions. Alabama case, holding binding he any non-resident law of any business within the district court and should have “[transacts However, subsection of inquiry sufficiency state.” ended all as to the applies only long arm statute Georgia’s Morrow v. allegations. jurisdictional contract, not to those Dillard, matters v. Krest- sounding in tort. Whitaker 1978). Alabama, Inc., Ga.App. 536 mark of judgment Nor can we affirm v. Cres- (1981); Scott S.E.2d 116] [278 court; ground stated alternative Co., (N.D.Ga. F.Supp. 147 Tool cent simply not shown those “The Nevertheless, alleges 1969). the state of Geor- minimum contacts with allegedly he suffered injury process meet the due re- gia which would foot) was the result of the [viz., a broken Amend- quirements Fourteenth negligence and that such I Bracewell we allega- In held that ment.” arising a “tort out negligence constitutes Airlines, its ticket that “Delta tions *4 of a contract.” County, Northern District office in DeKalb in Georgia, agent is an for defendant Georgia case plaintiff has cited no The air- ticketing passengers on defendant’s a that a carrier has contrac- which holds line,” support to an infer- were sufficient safely carry and disembark duty to tual person- subject Nicholson was to ence that negligence, for in actions persons. Such theory it trans- jurisdiction on the that al tort, in grounded in not Georgia, are through agent, Delta. acted its business contract. omitted). There we Id. at 104 holds that This court allegations and inference noted that these a cause of ac- complaint does not state might supported or over- be in contract sufficient invoke Geor- tion responses. by come defendant’s regardless of long arm statute gia’s Discovery may reveal Cumberland Maryland is Georgia law or law whether many agents Georgia in and Airlines had applicable. revenues from that it derived substantial 358-59). 357, (Order, Record show, Georgia. may It on in ticket sales contrary, Maryland Georgia To the hand, transaction was the other that this recognized rule that widely follow the both and that even if individual and isolated injured through who has been passenger a as a liter- Georgia statute is satisfied in negligence of a carrier sue matter, subject so unfair to al it would be act alleging that the tortious was contract defendant transportation. of the contract of a breach of the Four- the Due Clause Process Catania, 252 Md. 647, v. 250 Michelle St. would be violated. teenth Amendment City R. (1969); Baltimore Pass. A.2d 874 at 105. (1883); Coop Cab Kemp, 61 Md. 619 v.Co. Unfortunately, court misin- Ga.App. 19 Singleton, v.Co. 66 S.E.2d language misapplied it to terpreted this Lines, 52 South Hames Old (1942); 541 discovery. the results (1935); Louis 503 Ga.App. 183 S.E. Chivers, Ga.App. 11 N.R. Co. ville & responses that Nich- Defendants’ showed also, Air See Delta (1912). 75 S.E. olson, Air- doing as Cumberland business Millirons, Ga.App. Lines v. lines, agreement party to an interline (1952) (implicitly recognizing the S.E.2d baggage sales and han- governing ticket carriers); Am. applying air rule as agreement dling. the terms of Under § § 1129; Jur.2d 13 C.J.S. signatories as choose other signatory could Nicholson ticket sales. agents for its I we ex Moreover in others, do chose, airlines which among four alleged complaint suf pressly held that the for ticket agents as its business satisfy Georgia’s Long ficient facts to acknowledged that Amendment, Nicholson sales. While and the Fourteenth Statute dol- thirty thousand generated of Delta the doctrine 680 F.2d at 104-05. Under case, for Nicholson for which In the lars worth of sales instant has Atlanta, Georgia payment at its it received failed to show how much revenue the headquarters, way averred that it had no generated it through defendant ticket sales which, knowing any, of those sales Georgia. presented generated by Delta’s sales evidence defendant ap- received offices: $30,000 proximately from Delta Air flight coupon routinely through by Delta; is transmit- Lines ticket sales however, the airline which sold it for credit

ted to not mean that this does these sold it to the airline to the airline which ticket sales were but means (sic) passen- provided passage who to the merely paid the funds were to the tion even (Defendant’s defendants maintained Interrogatories, Record would mean that merous line Amendment would be violated. to an amenable to fendant’s airline solely signatory even if the airline did the defendant’s contracts The district court held that this it would be unfair to ant to due literally over the defendant would since the state of with an office Even airlines hunting countries to ger. each of the millions of ticket, numbers, would be fatal company process if These jurisdiction Georgia no such interline though discovery established that company. complaint, personal airlines, is the for a a contractual Georgia are not so isolated that extremely burdensome and without only to that the United States Answers flights flight coupons jurisdiction in attempt to write clause plaintiff’s proof coupon impossible fact that it is a compilation contact with agreement every airline which is a Georgia. issued agreement To base interline of the Fourteenth to Plaintiff’s First not subject the defend- agents *5 336, 342). failed to show that tickets for another to search claim were stated permits fly passage task. flight coupons number (sic) with the between every the state of are filed and that the possible. some airline into, be This in jurisdiction agreement of would be signatory response Georgia. one jurisdic- through lacking, The de- foreign out would state, air- nu- of, by all It jurisdictional allegations were sufficient to trict not from which inference, they rogatories tional subjected sitting Defendant’s support an inference that Nicholson had Order, Record 359-361. jurisdiction, rier to issue such a ticket is based ing flight. which is in In Bracewell I we held that those minimum contacts with the state of cess to one Amendment. state is when a common knownst signatory. an inter-airline tiff agreement lenged. of which state the tickets were sold in. Cumberland Airlines prove The defendant’s judge [*] grounds burden requirements prove plaintiff itself to the the volume of business which would meet the due Georgia. generated dismissed the action on not [citations omitted]. to Cumberland [*] through responses to which the defendant arose. Atlanta, Georgia, regardless is, when sufficient facts because the corroborate the passengers ability S- has ticketing course, upon fail to invalidate that Delta’s Nevertheless, jurisdiction of flight simply Georgia. [*] of a common car- contact with this F.2d the Fourteenth a ticket on a carrier, headquarters, as a connect- Lines, to establish sit not shown at 104-05. allegations plaintiff’s of courts baggage' jurisdic- is chal- the dis- We issues unbe- plain- inter- could [*] is a pro- re- the dis- point verse on this second because state, injury or across that no ignored trict court of the case the law even if no occurred in that state and applied unduly standard of burdensome derived from substantial revenue was proof. that state. the law the For the reasons stated doctrine of above we reverse

Under by judgment court was bound below and remand the case to case of our decision necessary implications proceedings. the district court further express holding. as its I as well and REMANDED. REVERSED Dillard, 580 F.2d at Our v. Morrow allegations were sufficient holding RONEY, Judge, dissenting: that Nicholson had support an inference ground respectfully I dissent jurisdiction of courts subjected itself to the Georgia by mere of tickets Delta sale necessarily implies that sitting through Traffic Airlines Interline had suffi may infer that the defendant one Agreement to travel on this charter and satisfy all Georgia to cient contacts with Balti- commuter airline that flies between statutory and constitutional Cumberland, Maryland, more and does not long jurisdiction, arm for the exercise subject Long airline to commuter Gunny Inc. Bigelow-Sanford, See jurisdiction in for the trial of this (5th Corp., 649 action, personal injury whether asserted as described). 1981) (required contacts or a contract claim. a tort question If the defendant raises and the district personal question solely on to decide the court elects affidavits, it pleadings and basis those accept

must as true

complaint which are not controverted deny the motion evidence and prima plaintiff presents if the

to dismiss v. Flow jurisdiction.2 ease of Brown facie UNITED STATES Industries, Inc., ers Cir.1982). allega jurisdictional Bracewell’s uncontroverted; he has met his tions are COMPANY, INDEMNITY TRAVELERS Though prima facie proof. burden Defendant-Appellee. might overcome showing *6 tickets in by proof that the sale of UNITED STATES of individual event an isolated and was such the Four process clause of the due if the Amendment would be violated teenth asserted its district court FARM MUTUAL AUTOMOBILE STATE Nicholson, I, 680 F.2d at COMPANY, INSURANCE required to come forward plaintiff is not Defendant-Appellee. of the airline’s of the extent with evidence 83-8751, Nos. of evidence which the absence activities Non-Argument Calendar. that the airline supports an inference (which dol thirty done over thousand Appeals, United States Court of Delta’s lars worth of business with Eleventh Circuit. significant busi headquarters) has done no Dec. ness in that state. Leonard, Atty., Gregory Asst. U.S. J. findings Finally, note that certain we HQDA Macon, Ga., Wittmayer, Chris G. are the court based its decision D.C., (DAJA-LTT), OTJAG, Washington, by the either controverted or unresolved cases. plaintiff-appellant both record. proceed necessary require prima case consists of sufficient 2. "A facie ... Abrams, get plaintiff past a motion for evidence ... with his case.” White omitted). jury 1974) case or motion directed verdict nonjury It is the evidence dismiss in a case.