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Nordness v. Faucheux

Supreme Court of Mississippi, En Banc

May 28, 2015


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[¶1] This is an alienation-of-affections lawsuit brought against a nonresident paramour over whom our courts have personal jurisdiction under the Mississippi long-arm statute. But because the paramour did not make purposeful minimum contacts with Mississippi that were sufficient to satisfy the Due Process Clause of the Fourteenth Amendment, we reverse the circuit court's denial of the paramour's motion to dismiss for lack of personal jurisdiction and we render judgment dismissing the plaintiff's complaint and this action for lack of personal jurisdiction over the paramour.


[¶2] Phillip and Paige Faucheux were a military couple who moved frequently during the early years of their marriage. In early 2002, Phillip got a job as a pilot with FedEx in Memphis, so the couple moved to Southaven, Mississippi--a suburb of Memphis just south of the Tennessee border. Phillip also served as a naval reserve pilot, often training at the Naval Air Station in Belle Chasse, Louisiana. Because of his frequent trips to Louisiana, he kept a Louisiana-registered Mazda pick-up truck parked at the New Orleans airport.[1]

[¶3] Paige and the couple's children often accompanied Phillip on his trips, but sometimes they did not. And it was on one such trip to south Louisiana during Carnival Season in January 2004, that Phillip met and began an extramarital affair with Francesca Munne Nordness.

[¶4] Phillip and Francesca continued the affair while Phillip trained in south Louisiana. Phillip often would drive Francesca around in his Mazda pick-up truck with Louisiana license plates. Francesca never visited Phillip in Mississippi, and Phillip never told Francesca that he lived in Mississippi. Instead, he misled her into believing he actually lived in Memphis. His cell phone had a " 901" area code--the area code for the Memphis area--and he sent her packages with a Memphis return address.

[¶5] In June 2004, Paige discovered that Phillip was having an affair. She did not know Francesca's identity, and she made it very clear that she blamed Phillip for the affair. Eventually the couple reconciled their marriage, yet Phillip secretly continued his relationship with Francesca in New Orleans.

[¶6] In October 2004, Francesca moved from New Orleans to Fayetteville, North Carolina, and Phillip stopped seeing her. But several months later in early 2005, Phillip hopped a FedEx flight to North Carolina and showed up unannounced at the hospital where Francesca worked, professing his love for her and begging her to see him again. Francesca agreed.

[¶7] From 2005 to 2009, Francesca and Phillip continued to rendezvous at locations across the country, including Louisiana, Florida, North Carolina, Nevada, and

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Colorado--but never Mississippi. And although the two exchanged e-mails, phone calls, and text messages, Francesca never knowingly communicated with Phillip while he was in Mississippi. Phillip also sent Francesca several FedEx packages during this time, but according to Phillip's uncontroverted testimony, he always used a Memphis return address.

[¶8] In December 2009 or early 2010, Paige learned that Phillip was still having affairs, not only with Francesca--whose identity she finally had learned--but also with a fitness instructor in Southaven. Around that same time, apparently for reasons unrelated to the affair, Francesca and her family left North Carolina and moved to Chattanooga, Tennessee.

[¶9] In March 2010, Francesca emailed Phillip to inform him that Paige had contacted her. Phillip responded by expressing his unflinching love for Francesca, offering to " fly in, hold your hand[,] and stand next to you while you tell [your husband] the truth," then suggesting that the two of them " fly to MEM, and you can hold my hand while I tell Paige." [2]

[¶10] Phillip's continued infidelity proved too much for Paige and, in August 2010, she was granted an irreconcilable-differences divorce from Phillip. Following the couple's divorce, Paige--now a resident of Texas--sued Francesca in Mississippi for alienation of affections, intentional and negligent infliction of emotional distress, invasion of privacy, and punitive damages. Francesca immediately challenged the suit by moving the court to dismiss for lack of personal jurisdiction over her.

[¶11] The circuit judge denied Francesca's motion to dismiss, stating that " it would be fair, just[,] and efficient to exercise personal jurisdiction over [Francesca] in this particular action." Francesca timely filed a petition for permission to file an interlocutory appeal in this Court, and we granted her petition.


[¶12] Because Paige filed this tort lawsuit against a nonresident, she bears the burden of establishing that Mississippi courts have personal jurisdiction over Francesca.[3] We first look to the language of Mississippi's " long-arm statute," which allows personal jurisdiction where the nonresident defendant commits a tort, in whole or in part, in Mississippi.[4] Here, because Francesca's actions allegedly broke up Paige's Mississippi marriage, we find the long-arm statute's language sufficiently broad enough to bring Francesca within its scope.[5] But the applicability of our long-arm statute does not end the inquiry.[6] We also must determine whether our exercise of personal jurisdiction

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would be constitutionally permissible under the United States Constitution's Fourteenth Amendment.[7]

I. Paige has not established that Francesca made sufficient purposeful minimum contacts with Mississippi for exercising personal jurisdiction over her.

[¶13] The Fourteenth Amendment's Due Process Clause prohibits a state's unrestricted exercise of personal jurisdiction over nonresidents.[8] With respect to the Due Process Clause, we are bound by the interpretations and decisions of the United States Supreme Court,[9] which addressed the issue in International Shoe Co. v. Washington, by stating:

[I]n order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend " traditional notions of fair play and substantial justice." [10]

[¶14] So a State's exercise of personal jurisdiction over a nonresident involves an evaluation of a defendant's " minimum contacts within the forum state" to see if they are sufficient to " comport with [traditional notions of] 'fair play and substantial justice.'" [11] To begin that process, we first must determine whether " a defendant purposefully established minimum contacts within the forum State." [12]

[¶15] Had Paige established that Francesca had engaged in sufficient purposeful minimum contacts with Mississippi, we then would evaluate whether subjecting Francesca to the jurisdiction of our courts would comport with the requirements of fair play and substantial justice. But, as explained below, Paige has utterly failed in her burden of showing Francesca had the constitutionally required purposeful minimum contacts in Mississippi, so our courts may not exercise jurisdiction over her, and it is unnecessary for us to analyze the so-called " fairness factors."

[¶16] The dissent cites Burger King Corp. for the proposition that due process may be satisfied where a defendant purposefully directs activities at a resident of

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the forum, even though the defendant knows nothing about the person's connections to the forum. We must reject this limited view of Burger King Corp.'s holding for several reasons.

[¶17] First, the Court in Burger King Corp. said more than the dissent discloses. The Court made it abundantly clear that the Due Process Clause allows a state court to exercise personal jurisdiction over a nonresident only where the nonresident should reasonably expect that her actions could lead to her being " haled into court" in that state.[13] Applying that requirement to the case before us today, it seems irrefutably illogical to suppose that a person who has an affair in another State with a Mississippi resident--but who is unaware of the person's Mississippi connections--reasonably could expect her actions could lead to her being " haled into court" in Mississippi. Notably, the dissent does not address this seminal due process requirement found in Burger King Corp., International Shoe Co., Stripling, and numerous other cases addressing due process requirements for personal jurisdiction.

[¶18] Second, in Walden v. Fiore (discussed in detail below)--a case not cited by the dissent, even though it is the United States Supreme Court's most recent pronouncement on specific personal jurisdiction--the Court stated in no uncertain terms that a " 'minimum contacts' analysis looks to the defendant's contacts with the forum State itself, not the defendant's contacts with persons who reside there." [14]

[¶19] Third, we have not found, and the dissent has not cited, a single United States Supreme Court case--or, for that matter, any federal or state supreme court case--that has held a person " purposefully established 'minimum contacts' in [a] forum State" [15] where that person did not know, or should not have been aware, he or she was making the contacts in the forum state.

A. United States Supreme Court Personal Jurisdiction Cases and the Requirements of Purposeful Minimum Contacts and Foreseeability

[¶20] The United States Supreme Court has addressed the limits of a State court's power to exercise personal jurisdiction over nonresidents in numerous cases, but its opinion in International Shoe Co. still remains the " canonical opinion." [16] And its " minimum contacts" requirement has been the object of much elaboration in both federal and state courts.

[¶21] In World Wide-Volkswagen Corp. v. Woodson, the Supreme Court--drawing from and further explaining its pronouncement in International Shoe Co.--stated:

Even if the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State

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has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment.[17]

[¶22] The Court also pointed out that the foreseeability of suffering injury in the forum state, standing alone, is insufficient to establish constitutionally required minimum contacts:

It is argued, however that because an automobile is mobile by its very design and purpose it was " foreseeable" that the [plaintiffs'] Audi would cause injury in Oklahoma. Yet " foreseeability" alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause.[18]

[¶23] In addressing these and other considerations, the Court stated in Burger King Corp. v. Rudzewicz that " the constitutional touchstone remains whether the defendant purposefully established 'minimum contacts' in the forum State." [19 ...

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