Wilson v. Belin ( 1994 )


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  •                    United States Court of Appeals,
    
                                   Fifth Circuit.
    
                                     No. 93-1907
    
                                  Summary Calendar.
    
                    Thomas W. WILSON, Plaintiff-Appellant,
    
                                         v.
    
       Davis W. BELIN and G. Robert Blakey, Defendants-Appellees.
    
                                    May 13, 1994.
    
    Appeal from the United States District Court for the Northern
    District of Texas.
    
    Before JOLLY, WIENER, and EMILIO M. GARZA, Circuit Judges.
    
         E. GRADY JOLLY, Circuit Judge:
    
         The question presented in this case is whether a federal
    
    district court sitting in Texas has personal jurisdiction over two
    
    out-of-state defendants.        In fact, none of the parties are Texas
    
    residents.     The plaintiff, a Pennsylvania resident, filed this
    
    defamation suit in Texas state court against an Indiana resident
    
    and an Iowa resident.     The genesis of this lawsuit is in a speech
    
    the plaintiff made in Dallas concerning the Kennedy assassination.
    
    A Dallas reporter telephoned the defendants in Indiana and Iowa,
    
    respectively, for a response to the speech.            The reporter then
    
    purportedly    quoted   the    defendants'     reactions   in   a   newspaper
    
    article.      The plaintiff claims that the defendants' negative
    
    remarks libeled him in Texas.       After removal, the federal district
    
    court dismissed the case for lack of personal jurisdiction.                We
    
    affirm.
    
                                          I
    
                                          1
         The plaintiff, Thomas W. Wilson, is a Pennsylvania resident,
    
    who used photographic image processing technology in his job as an
    
    engineer for U.S. Steel Corporation. Wilson began applying certain
    
    imaging   technology—on   his   own    time—to   photographs   of   the
    
    assassination of President John F. Kennedy.       Wilson claimed that
    
    his computer enhancements revealed a second gunman on the "grassy
    
    knoll" and revealed that a photograph of Lee Harvey Oswald with a
    
    rifle had been tampered with.    On November 15, 1991, Wilson spoke
    
    at a symposium in Dallas, Texas, on the Kennedy assassination and
    
    presented his "revelations."
    
         During the symposium, Mark Potok, a reporter for the Dallas
    
    Times Herald, telephoned Robert Blakey, who served as chief counsel
    
    and staff director of the House Select Committee on Assassinations,
    
    to discuss Wilson's conclusions.       The reporter also called David
    
    Belin, who served as assistant counsel to the Warren Commission to
    
    discuss Wilson's comments.      Both Blakey and Belin received the
    
    calls in their respective states of residence—Indiana and Iowa.
    
         On November 16, 1991, the Dallas Times Herald published an
    
    article written by Mr. Potok that quoted Mr. Blakey as saying, "You
    
    know the saying among computer people, "Garbage in, garbage out?'
    
    This is garbage."   The article quoted Mr. Belin as saying, "It's a
    
    series of massive lies.   The man is basically making an outrageous
    
    claim."
    
                                      II
    
         On September 3, 1992, Wilson filed a bill of discovery in
    
    Texas state court to depose Potok to determine if he misquoted
    
    
                                      2
    Blakey and Belin before instituting suit against them. On November
    
    13, Wilson filed a defamation suit against Blakey and Belin in
    
    Texas state court.         The suit and the original petition were
    
    received by the Texas Secretary of State, as agents for the
    
    nonresidents, on November 23.          On December 22, Blakey and Belin
    
    filed a joint notice of removal citing diversity of citizenship.
    
         On September 2, 1993, the district court granted Blakey and
    
    Wilson's motion to dismiss the case on the grounds that the court
    
    lacked   specific    and   general    personal   jurisdiction     over   them.
    
    Wilson filed this appeal.
    
                                          III
    
             In   a   diversity   suit,    a    federal   court     has   personal
    
    jurisdiction over a nonresident defendant to the same extent that
    
    a state court in that forum has such jurisdiction.                Bullion v.
    
    Gillespie, 
    895 F.2d 213
    , 215 (5th Cir.1990);            Fed.R.Civ.P. 4(e).
    
    The reach of this jurisdiction is delimited by:               (1) the state's
    
    long-arm statute; and (2) the Due Process Clause of the Fourteenth
    
    Amendment to the federal Constitution.           Bullion, 895 F.2d at 215.
    
    Because the Texas long-arm statute extends to the limits of federal
    
    due process,1 our two-step inquiry is reduced to an analysis of
    
         1
          The Texas long-arm statute authorizes the exercise of
    jurisdiction over nonresidents "doing business," which includes
    committing a tort in whole or in part, in Texas. Tex.Civ.Prac. &
    Rem.Code Ann. § 17.02 (Vernon 1986). The Texas Supreme Court has
    interpreted the "doing business" requirement broadly, allowing
    the long-arm statute to reach as far as the federal Constitution
    permits. Schlobohm v. Schapiro, 
    784 S.W.2d 355
    , 357 (Tex.1990).
    Further, for purposes of the jurisdictional issue only, Blakey
    and Belin concede that a tort was committed in whole or in part
    in Texas via the publication of the newspaper article in a Texas
    newspaper. Thus, the outcome of this case turns wholly on the
    
                                           3
    whether requiring Blakey and Belin to defend a defamation suit in
    
    Texas would impinge on their individual liberty interests—not to be
    
    subjected to suits in a distant forum with which they have little
    
    connection—that are protected by the Due Process Clause.2                     See
    
    Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 
    456 U.S. 694
    , 702 n. 10, 
    102 S. Ct. 2099
    , 2104 n. 10, 
    72 L. Ed. 2d 492
    
    (1982) (stating that the restriction on state power to subject a
    
    nonresident to suit is "ultimately a function of the individual
    
    liberty interest preserved by the Due Process Clause").
    
               The exercise of personal jurisdiction over a nonresident will
    
    not violate due process principles if 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.
    
    International Shoe Co. v. Washington, 
    326 U.S. 310
    , 316, 
    66 S. Ct. 154
    , 158, 
    90 L. Ed. 95
     (1945);                Bullion, 895 F.2d at 216.       And
    
    second, the exercise of jurisdiction over the nonresident defendant
    
    must not offend "traditional notions of fair play and substantial
    
    justice."        Asahi Metal Indus. Co. v. Superior Court, 
    480 U.S. 102
    ,
    
    113,       
    107 S. Ct. 1026
    ,   1033,   
    94 L. Ed. 2d 92
        (1987)   (citing
    
    International Shoe, 326 U.S. at 316, 66 S.Ct. at 158).
    
               The "minimum contacts" prong of the inquiry may be further
    
    subdivided into contacts that give rise to "specific" personal
    
    
    federal constitutional reach of personal jurisdiction.
           2
          The Due Process Clause provides, "[N]or shall any State
    deprive any person of life, liberty, or property, without due
    process of law." U.S. Const. amend. XIV, § 1.
    
                                             4
    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.                               Helicopteros
    
    Nacionales de Colombia, S.A. v. Hall, 
    466 U.S. 408
    , 414 n. 8, 
    104 S. Ct. 1868
    , 1872 n. 8, 
    80 L. Ed. 2d 404
     (1984);                       Bullion, 895 F.2d at
    
    216.       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."
    
    Helicopteros, 466 U.S. at 414 n. 9, 104 S.Ct. at 1872 n. 9;
    
    Bullion, 895 F.2d at 216.
    
               If   a   nonresident       defendant        has     sufficient       related   or
    
    unrelated minimum contacts with the forum, we must then consider
    
    whether the "fairness" prong of the jurisdictional inquiry is
    
    satisfied.          See Asahi, 480 U.S. at 105, 107 S.Ct. at 1033;
    
    Bullion, 895 F.2d at 216.              The Supreme Court has stated that the
    
    "fairness" of requiring a nonresident to defend a suit in a distant
    
    forum is a function of several factors, including the "interests of
    
    the forum State."3         Asahi, 480 U.S. at 113, 107 S.Ct. at 1033.
    
           3
            The factors considered in the fairness inquiry are:
    
                    [T]he 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"; and (5) "the
                    shared interest of the several States in furthering
                    fundamental substantive social policies."
    
           Bullion, 895 F.2d at 216 n. 5 (citing Asahi, 480 U.S. at
    
                                                  5
                                             IV
    
          When the facts are not in dispute, we review de novo a
    
    district   court's   determination            that   its   exercise       of    personal
    
    jurisdiction over a nonresident defendant is proper.                      Bullion, 895
    
    F.2d at 216.     "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."      Stuart    v.    Spademan,         
    772 F.2d 1185
    ,       1192   (5th
    
    Cir.1985).    When the district court rules on the motion without an
    
    evidentiary     hearing,    the    plaintiff         may    bear    his    burden      by
    
    presenting a prima facie case that personal jurisdiction is proper.
    
    Thompson v.     Chrysler    Motors       Corp.,      
    755 F.2d 1162
    ,       1165   (5th
    
    Cir.1985).      "Moreover,    on     a    motion      to   dismiss       for    lack   of
    
    jurisdiction,     uncontroverted         allegations        in     the     plaintiff's
    
    complaint must be taken as true, and conflicts between the facts
    
    contained in the parties' affidavits must be resolved in the
    
    plaintiff's favor for purposes of determining whether a prima facie
    
    case for personal jurisdiction exists."                Bullion, 895 F.2d at 217
    
    (quoting D.J. Investments, Inc. v. Metzeler Motorcycle Tire Agent
    
    Gregg, Inc., 
    754 F.2d 542
    , 545 (5th Cir.1985)).
    
                                              A
    
         Wilson first argues that the district court had specific
    
    personal jurisdiction over Blakey and Belin because each of them
    
    spoke with a Texas newspaper reporter and thus reasonably could
    
    
         113, 107 S.Ct. at 1033 (quoting World-Wide Volkswagen Corp.
         v. Woodson, 
    444 U.S. 286
    , 292, 
    100 S. Ct. 559
    , 563, 
    62 L. Ed. 2d 490
     (1980))).
    
                                              6
    foresee that their defamatory comments would be published in Texas
    
    and injure Wilson's reputation in Texas. Wilson argues that Calder
    
    v. Jones, 
    465 U.S. 783
    , 789, 
    104 S. Ct. 1482
    , 1487, 
    79 L. Ed. 2d 804
    
    (1984) clearly stands for the proposition that whenever the effects
    
    of libel by a nonresident are felt in the forum state, specific
    
    jurisdiction exists.     We believe Wilson reads Calder too broadly.4
    
             In Calder, 465 U.S. at 788-90, 104 S.Ct. at 1486-87, a
    
    reporter    for   a   Florida   publication    researched    a   story    in
    
    California, wrote a story about a California resident whose career
    
    was centered in California, and provided that story to his (the
    
    defendant reporter's) employer, which had a substantial portion of
    
    its national circulation in California.        The Court stated that the
    
    defendants'   (the    reporter's   and   his   editor's)    "actions     were
    
    expressly aimed at California" because they wrote and edited "an
    
    article that they knew would have a potentially devastating impact
    
    upon [the plaintiff in California]."           Id. at 789, 104 S.Ct. at
    
    1487.    In the instant case, however, neither Blakey nor Belin did
    
    any preparation for a story to defame the plaintiff.          They did not
    
    even write or devise a story.           They did no research regarding
    
    Wilson's theory in Texas or elsewhere.         Furthermore, there is no
    
    indication that these defendants were paid for their comments, that
    
    their comments were part of a planned business venture, or that
    
    such unsolicited comments served any role in advancing their
    
         4
          We also note that First Amendment considerations regarding
    the defendants' abilities to inject their respective opinions
    into the marketplace of ideas on a topic of obvious public
    concern are not relevant to our wholly jurisdictional inquiry.
    Calder, 465 U.S. at 790-91, 104 S.Ct. at 1487-88.
    
                                        7
    business careers.          Finally, the plaintiff, Wilson, is not a Texas
    
    resident      and    his    career   is    not   centered   there.     Thus,    the
    
    dispositive facts in Calder simply are absent from this case.
    
           Wilson also places great weight on the premise that a libelous
    
    tort is deemed to have occurred where the offending material is
    
    circulated.         See Keeton v. Hustler Magazine, Inc., 
    465 U.S. 770
    ,
    
    777,    
    104 S. Ct. 1473
    ,   1479,    
    79 L. Ed. 2d 790
       (1984)    (citing
    
    Restatement (Second) of Torts § 577A, Comment a (1977)).                       This
    
    principle alone, however, will not win the day for Wilson.                     That
    
    the tort is deemed to have occurred in whole or in part in Texas is
    
    simply not dispositive of whether jurisdiction is appropriate. See
    
    World-Wide Volkswagen Corp. v. Woodson, 
    444 U.S. 286
    , 288-89, 
    100 S. Ct. 559
    , 562-63, 
    62 L. Ed. 2d 490
     (1980) (holding that although
    
    tort occurred in Oklahoma, New York defendant was not subject to
    
    personal jurisdiction in Oklahoma by nonresident plaintiff).
    
           Wilson also argues foreseeability as a basis for specific
    
    personal jurisdiction.             The defendants, he argues, could foresee
    
    that the defamatory remarks would be published in Texas.                        The
    
    Supreme Court has stated, however, that:
    
           "[F]oreseeability" alone has never been a sufficient benchmark
           for personal jurisdiction under the Due Process Clause....
           [T]he foreseeability that is critical to due process analysis
           is ... that the defendant's conduct and connection with the
           forum State are such that he should reasonably anticipate
           being haled into court there.
    
    World-Wide Volkswagen, 444 U.S. at 295, 297, 100 S.Ct. at 566, 567
    
    (citations omitted) (emphasis added).
    
           In   this     connection,     the    Supreme   Court   has    held   that   a
    
    defendant could "reasonably anticipate being haled into court" when
    
                                                8
    he "purposefully directed" his activities and contacts into the
    
    forum state.   Burger King Corp. v. Rudzewicz, 
    471 U.S. 462
    , 476,
    
    
    105 S. Ct. 2174
    , 2184, 
    85 L. Ed. 2d 528
     (1985).   In Burger King, id.,
    
    the defendant had "purposefully directed" activities into the forum
    
    state when he mailed communications to the plaintiff's headquarters
    
    in the forum state, promised to send money into the forum state,
    
    and agreed to allow the forum state's law to govern the contract in
    
    dispute.    Here, by contrast, Blakey and Belin took no planned
    
    action to inject themselves or their opinions into the Texas forum.
    
    Each simply received one unsolicited phone call from Texas.   They
    
    sent no money or materials into Texas, and neither ever bound
    
    themselves to Texas law—even implicitly—concerning the disputed
    
    photographic interpretations in this case.
    
         Similarly, the facts in the instant case are distinguishable
    
    from 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),
    
    where we held that personal jurisdiction in Mississippi was proper
    
    over an out-of-state resident who made a phone call to Mississippi
    
    to defame a Mississippi resident.    In so holding, we emphasized
    
    that the defendant initiated the defamatory phone call. Id. at 334
    
    & n. 15 (differentiating McBreen v. Beech Aircraft Corp., 
    543 F.2d 26
    , 31 (7th Cir.1976), in which the court held that jurisdiction
    
    was improper, in part, because the defendant did not initiate the
    
    phone call).   Here, the defendants did not execute a prearranged
    
    plan by initiating a communication to Texas aimed at a Texas
    
    resident.   Instead, Blakey and Belin, while sitting unsuspectingly
    
    
                                     9
    in their respective offices in Indiana and Iowa, merely answered
    
    one uninitiated and unsolicited phone call asking about their
    
    opinion of a Pennsylvania resident's theory.            We hold that the
    
    assertion of specific personal jurisdiction over Blakey and Belin
    
    would deprive them of the due process liberty interest not to be
    
    subjected to suit in a distant forum with which they have little
    
    connection.
    
                                       B
    
         Next, Wilson argues that the district court has general
    
    personal   jurisdiction   over   Blakey   and   Belin    because   of   the
    
    unrelated contacts each had with Texas. In resolving this issue we
    
    first turn to the Supreme Court's seminal case on this point:
    
    Perkins v. Benguet Consolidated Mining Co., 
    342 U.S. 437
    , 
    72 S. Ct. 413
    , 
    96 L. Ed. 485
     (1952).   In Perkins, id. at 438, 72 S.Ct. at 438,
    
    the Supreme Court upheld the district court's exercise of general
    
    personal jurisdiction in Ohio over a Philippine corporation that
    
    had temporarily relocated to Ohio.          The Court held that the
    
    corporation's general contacts with Ohio, although unrelated to the
    
    cause of action, would support the exercise of general personal
    
    jurisdiction because they were "continuous and systematic."             Id.
    
    Some twenty years later, in Keeton, 465 U.S. at 779 n. 11, 104
    
    S.Ct. at 1481 n. 11, the Supreme Court gave a concise explanation
    
    of why general jurisdiction was appropriate in Perkins. The Keeton
    
    Court, emphasized that unrelated contacts must be "substantial" in
    
    order to support general jurisdiction:
    
         In Perkins, ... [the corporation's] president, who was also
         general manager and principal stockholder of the company,
    
                                      10
         returned to his home in Ohio where he carried on "a continuous
         and systematic supervision of the necessarily limited wartime
         activities of the company...." The company's files were kept
         in Ohio, several directors' meetings were held there,
         substantial accounts were maintained in Ohio banks, and all
         key business decisions were made in the State.... In those
         circumstances, Ohio was the corporation's principal, if
         temporary, place of business so that Ohio jurisdiction was
         proper even over a cause of action unrelated to the activities
         in the State.
    
    Id. (citations omitted).5
    
         In the instant case, Wilson argues that the assertion of
    
    general personal jurisdiction over Blakey is warranted because of
    
    his various unrelated contacts with Texas.   Wilson first points to
    
    Blakey's relationship with a Texas law firm.    Blakey carried his
    
    
         5
           Keeton was an unusual case, as scholars have noted, because
    the Supreme Court used a blend of related and unrelated contacts
    to uphold personal jurisdiction. See GENE R. SHREVE & PETER RAVEN-
    HANSEN, UNDERSTANDING CIVIL PROCEDURE § 19A (1989). In Keeton, 465
    U.S. at 772, 104 S.Ct. at 1477, an Ohio publishing corporation
    had only a small part of its monthly national circulation in New
    Hampshire. The Supreme Court reasoned that if these magazine
    sales were unrelated to the cause of action, they would be
    insufficient to warrant the exercise of personal jurisdiction.
    Id. at 779, 104 S.Ct. at 1481. The Keeton Court distinguished
    Perkins on the grounds that "[t]he defendant corporation's
    contacts with the forum State in Perkins were more substantial
    than those of [the publisher] with New Hampshire in this case."
    Id. at 779 n. 11, 104 S.Ct. at 1481 n. 11 (emphasis added).
    Other cases have echoed the substantiality requirement. See,
    e.g., Helicopteros, 466 U.S. at 471, 418-19, 104 S.Ct. at 1873-74
    (refusing to uphold general jurisdiction over a foreign
    corporation that negotiated a contract in, purchased equipment
    from, and had its employees trained in the forum state because
    such activity did not constitute continuous and systematic
    unrelated contacts); Holt Oil & Gas Corp. v. Harvey, 
    801 F.2d 773
    , 779 (5th Cir.1986), cert. denied, 
    481 U.S. 1015
    , 
    107 S. Ct. 1892
    , 
    95 L. Ed. 2d 499
     (1987) (upholding general jurisdiction over
    a nonresident defendant that attended college in, owned real
    estate in, travelled to, and conducted extensive business
    dealings in the forum state to such an extent that, in toto, his
    contacts evidenced "constant and extensive personal and business
    connections with [the forum state] throughout [the nonresident
    defendant's] adult life").
    
                                    11
    malpractice insurance through the Texas firm for less than a year.
    
    The record makes clear, however, that Blakey performed no work for
    
    and received no compensation from that firm.              Wilson also points
    
    out that Blakey performed approximately one legal project per
    
    year—each for a different firm—in Texas for three years prior to
    
    the institution of this suit and gave a legal seminar in Texas.
    
    Additionally, Blakey served, in a limited capacity, as a pro bono
    
    consultant to a historical society in Dallas for several years;            in
    
    this connection, he made two trips to Dallas, one in 1988 and one
    
    on opening day—February 21, 1989.6         Further, Blakey wrote a letter
    
    to the editor that appeared in a Texas newspaper, and he wrote a
    
    book that was circulated, in part, in Texas.              Finally, he gave a
    
    few interviews to Texas reporters over the years.
    
         Wilson also asserts that Belin had a number of unrelated
    
    contacts with Texas that will support the exercise of general
    
    personal jurisdiction over him.          Wilson points out that, in the
    
    last five years, Belin made a few trips to Texas during which he
    
    gave interviews concerning the Kennedy assassination.                  On one
    
    occasion, during a several-hour layover at a Dallas airport, Belin
    
    visited the Texas School Book Depository.           Wilson further points
    
    out that on another occasion Belin engaged in discussions with an
    
    investment   banking   firm   in   Texas    on   behalf   of   a   nonresident
    
    corporation in which he owned a small interest and served as
    
    
         6
          The "Sixth Floor Project" established a museum on the sixth
    floor of the Texas School Book Depository from which Lee Harvey
    Oswald is alleged to have fired the shots that fatally wounded
    President Kennedy.
    
                                        12
    secretary.     Belin also wrote three books that were circulated, in
    
    part, in Texas.      Finally, he wrote an article for the Washington
    
    Post that was reprinted in a Texas newspaper.
    
             Our examination of Blakey's and Belin's activities in Texas,
    
    in toto, leads us to the conclusion that their unrelated contacts
    
    with Texas were not as "continuous and systematic" and, in any
    
    event, were not as "substantial" as the nonresident defendant's
    
    contacts in Perkins.        We simply cannot say that because of these
    
    various brief contacts with Texas that either of these defendants
    
    should have reasonably expected to be sued in Texas on any matter,
    
    however     remote   from   these   contacts.   They   simply    were   not
    
    substantial enough to give rise to such an expectation.7           Neither
    
    Blakey nor Belin conducted regular business in Texas.           They never
    
    made all or even a substantial part of their business decisions in
    
    Texas, did not keep bank accounts in Texas, did not hold directors'
    
    meetings in Texas, and did not maintain their files in Texas.           Cf.
    
    Perkins, 342 U.S. at 448, 72 S.Ct. at 419.             Even if Blakey's
    
    contacts with Texas via his short-lived malpractice insurance
    
    arrangement through a Texas law firm and his multi-year pro bono
    
    association with the historical society were arguably continuous,
    
    we hold that they were not substantial enough to warrant the
    
    
         7
          Because we hold that Blakey and Belin do not have
    sufficient related or unrelated minimum contacts with Texas, we
    need not address whether the exercise of personal jurisdiction in
    this case would be consonant with "traditional notions of fair
    play and substantial justice." See Asahi, 480 U.S. at 113, 107
    S.Ct. at 1033 (requiring both minimum contacts and fairness in
    order to assert personal jurisdiction); Bullion, 895 F.2d at 216
    (same).
    
                                          13
    imposition of general personal jurisdiction over Blakey.          See
    
    Keeton, 465 U.S. at 779 & n. 11, 104 S.Ct. at 1481 & n. 11.      With
    
    respect to Belin, his contacts are sporadic and attenuated instead
    
    of   continuous,   and   they   are   definitely   not   substantial.
    
    Consequently, we hold that the assertion of general personal
    
    jurisdiction over Blakey and Belin would deprive them of their
    
    respective due process liberty interests not to be subjected to
    
    suit in a distant forum with which they have little connection.8
    
         8
          Wilson makes several other arguments, all of which fail.
    First, Wilson argues that removal was improper because notice of
    removal was untimely. It is, of course, true that 28 U.S.C. §
    1446(b) requires a defendant to file notice of removal within
    thirty days of receipt of the "initial pleading setting forth the
    claim for relief." Although plaintiff filed a bill of discovery
    more than thirty days prior to the defendants' removal, the first
    document stating a claim—the complaint—was filed less than thirty
    days prior to the defendants' filing of their joint notice of
    removal.
    
              Second, Wilson argues that the complaint, which had no
         ad damnum clause, did not state claims that facially
         involved more than $50,000. Thus, removal was timely.
         Because the record contains a letter, which plaintiff's
         counsel sent to defendants stating that the amount in
         controversy exceeded $50,000, it is "apparent" that removal
         was proper. See Marcel v. Pool Co., 
    5 F.3d 81
    , 84 (5th
         Cir.1993) (allowing removal when it was facially apparent
         that the claims exceeded $50,000).
    
              Third, Wilson also argues that the district court erred
         in failing to rule on his motion to remand prior to ruling
         on the personal jurisdiction issue. Our precedent provides,
         however, that district courts have the power to rule on
         personal jurisdiction before reaching motions to remand.
         See Villar v. Crowley Maritime Corp., 
    990 F.2d 1489
    , 1494
         (5th Cir.1993), cert. denied, --- U.S. ----, 
    114 S. Ct. 690
    ,
         
    126 L. Ed. 2d 658
     (1994).
    
              Finally, Wilson argues that the district court erred in
         not ruling on its motion to compel more discovery. We are
         satisfied that the district court, after granting several
         extensions to the plaintiff to file his motion in opposition
         to summary judgment and after reviewing the affidavits,
    
                                     14
                               V
    
    For the foregoing reasons, the order of the district court is
    
    AFFIRMED.
    
    
    
    
    answers, and interrogatories before it dismissed this case,
    did not abuse its broad discretion in this discovery matter.
    See Wyatt v. Kaplan, 
    686 F.2d 276
    , 283 (5th Cir.1982).
    
                              15
    

Document Info

DocketNumber: 93-01907

Filed Date: 5/13/1994

Precedential Status: Precedential

Modified Date: 12/21/2014

Authorities (20)

Marcel v. Pool Co. , 5 F.3d 81 ( 1993 )

International Shoe Co. v. Washington , 326 U.S. 310 ( 1945 )

Perkins v. Benguet Consol. Mining Co. , 342 U.S. 437 ( 1952 )

World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286 ( 1980 )

Insurance Corp. of Ireland v. Compagnie Des Bauxites De ... , 456 U.S. 694 ( 1982 )

Keeton v. Hustler Magazine, Inc. , 465 U.S. 770 ( 1984 )

Calder v. Jones , 465 U.S. 783 ( 1984 )

Helicopteros Nacionales De Colombia, SA v. Hall , 466 U.S. 408 ( 1984 )

Burger King Corp. v. Rudzewicz , 471 U.S. 462 ( 1985 )

Asahi Metal Industry Co. v. Superior Court of Cal., Solano ... , 480 U.S. 102 ( 1987 )

Peter J. McBreen v. Beech Aircraft Corporation , 543 F.2d 26 ( 1976 )

Oscar Wyatt, Jr. v. Jerome Kaplan , 686 F.2d 276 ( 1982 )

pete-harding-brown-and-motts-inc-of-mississippi-v-flowers-industries , 688 F.2d 328 ( 1982 )

D.J. Investments, Inc. D/B/A Race Ready v. Metzeler ... , 754 F.2d 542 ( 1985 )

jack-thompson-individually-and-as-next-friend-for-clinton-j-heath-etc , 755 F.2d 1162 ( 1985 )

David H. Stuart and Richard A. Whitaker v. Richard G. ... , 772 F.2d 1185 ( 1985 )

Holt Oil & Gas Corporation and Faywin Investments, Pty. Ltd.... , 801 F.2d 773 ( 1986 )

Carol Bullion v. Larrian Gillespie, M.D. , 895 F.2d 213 ( 1990 )

nenita-s-villar-etc-v-crowley-maritime-corporation-nenita-s-villar , 990 F.2d 1489 ( 1993 )

Schlobohm v. Schapiro , 784 S.W.2d 355 ( 1990 )

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