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Long v. Vitkauskas

Supreme Court of Mississippi, En Banc

December 5, 2019


          DATE OF JUDGMENT: 04/04/2018






         ¶1. Douglas Michael Long Jr. filed a complaint against Pennsylvania resident David J. Vitkauskas for alienation of affections. Vitkauskas responded with a motion to dismiss for lack of personal jurisdiction. The trial court granted Vitkauskas's motion and dismissed Douglas's complaint. Douglas appeals, arguing that the trial court erred by finding that Vitkauskas was not subject to personal jurisdiction and, alternatively, by refusing to allow limited discovery pertaining to personal jurisdiction. Finding no error, we affirm.


         ¶2. In 1988, Douglas married Catherine A. Long. After the couple divorced, Douglas, a Mississippi resident, sued Pennsylvania resident Vitkauskas, alleging alienation of affections. Douglas claimed that Vitkauskas's wrongful and adulterous actions irreparably injured his marriage with Catherine. Douglas alleged that Vitkauskas's intentional, wrongful conduct proximately caused his divorce.

         ¶3. Vitkauskas filed a motion to dismiss, inter alia, for insufficient service of process under Mississippi Rule of Civil Procedure 4(c)(5). The trial court granted the motion, and the Court of Appeals affirmed. We reversed and remanded, holding that service had been sufficient. Long v. Vitkauskas, 228 So.3d 302, 303 (¶ 1) (Miss. 2017). Following remand, on December 8, 2017, Vitkauskas filed another motion to dismiss, but he omitted the insufficient service of process argument. Vitkauskas argued that Douglas's complaint should be dismissed under Mississippi Rule of Civil Procedure 12(b)(1)-(6). Vitkauskas argued that the trial court lacked personal jurisdiction over him because his contacts to Mississippi were not sufficient to expose him to the jurisdiction of the trial court. Vitkauskas also argued that the trial court lacked subject matter jurisdiction, that venue was improper, and that Douglas had failed to state a claim on which relief could be granted.

         ¶4. On December 22, 2017, Douglas noticed a deposition of Vitkauskas to be taken on January 17, 2018, in Hernando, Mississippi. On December 26, 2017, Vitkauskas filed a motion to quash the notice of deposition. Douglas filed a response, arguing that he should be allowed to take Vitkauskas's deposition to prove that Vitkauskas's contacts with the state of Mississippi were sufficient to subject him to personal jurisdiction. Douglas requested that the trial court postpone the hearing on Vitkauskas's motion to dismiss until his deposition had been taken.

         ¶5. On January 10, 2018, the trial court entered an order finding that "[w]hile some limited discovery on the issue of personal jurisdiction may be warranted in this matter, the [trial c]ourt finds that [Douglas]'s unilateral notice of [Vitkauskas]'s deposition in Mississippi places an undue burden or expense on [Vitkauskas] at this time." The trial court quashed the deposition "as noticed[, ]" however, it found that the "issue of [Douglas]'s entitlement to a deposition of [Vitkauskas] for limited purposes will be held in abeyance until the [motion to dismiss] hearing[.]"

         ¶6. On March 1, 2018, the trial court held a hearing on Vitkauskas's motion to dismiss. Douglas appeared with counsel and was prepared to testify about Vitkauskas's contacts with Mississippi. However, Douglas did not testify; instead, his counsel presented argument about what Douglas's testimony and certain evidence would show.

         ¶7. According to Douglas's counsel, Douglas and his wife, Catherine, lived in Olive Branch, Mississippi. While they lived in Olive Branch, Catherine worked for a company in Memphis, Tennessee, where Vitkauskas was her supervisor. Beginning in March 2010, while Catherine and Douglas lived together as a married couple, numerous phone calls and text messages were exchanged between Catherine and Vitkauskas. The phone calls and texts continued until Catherine and Douglas separated. Douglas's counsel represented that Catherine had never received any phone calls from her two previous supervisors. Douglas's counsel stated that the phone calls occurred outside of working hours at night and on weekends. The phone logs were admitted into evidence without objection. The parties stipulated that the numbers identified in the exhibits were Vitkauskas's and Catherine's phone numbers.

         ¶8. Douglas's counsel claimed that Vitkauskas sent gifts to Douglas and Catherine's Olive Branch home, including a subscription to Food Network Magazine, bamboo towels, and an expensive guitar. Douglas's counsel stated, "We've got the actual receipt here where [Vitkauskas] sent her a subscription" to Douglas and Catherine's home "address at 4028 Arbor Cove, Olive Branch, Mississippi." Douglas's counsel also mentioned Catherine's journal notes that she had hidden in her closet describing her and Vitkauskas's relationship. Douglas's counsel told the trial court,

I'll be glad to share these notes. I don't want [to] read them into the record because they're somewhat explicit. Your Honor, but I would like you to look at them and let [Vitkauskas's counsel] look at them if you care to. I would rather not read them into the record, Your Honor.

         After a pause in the proceedings, the trial court asked, "Do y'all want those to be marked as exhibits so there will be something in the record?" Vitkauskas's counsel objected, arguing that it had not been authenticated. Douglas's counsel responded that in addition to the phone calls, texts, and handwritten journal notes, Catherine left the marital home to move in with Vitkauskas in Pennsylvania.

         ¶9. Douglas's counsel showed the journal entries to the trial court. Vitkauskas's counsel had no objection to the entries' being published to the trial court. After a pause in the proceedings, Douglas's counsel stated, "Your Honor, I will state that these - - Judge Cobb ordered [Catherine] to read these into the record during the temporary hearing. I'm not comfortable with that unless you want them introduced." The trial court responded, "There's been an objection from counsel opposite[, ] so I won't make it an exhibit at this time since it's not been properly authenticated." Douglas's counsel interjected, "Also, Your Honor, I would show that [Catherine]'s admitted to [Douglas] that Mr. Vitkauskas had visited in their home." Vitkauskas's counsel stated, "[Catherine] is not a party[, s]o any admission by her would not be admissible as it would be a party admission, least of all, the fact that she's not even here." Douglas's counsel responded that the entries would be an admission against interest and therefore admissible. The trial court sustained the objection.

         ¶10. Douglas's counsel argued that under Knight v. Woodfield, 50 So.3d 995 (Miss. 2011), Vitkauskas's actions constituted sufficient minimum contacts to subject to him personal jurisdiction.

         ¶11. The trial court took the matter under advisement and granted the motion to dismiss. In the dismissal order, the trial court acknowledged that a two step analysis as set out in Knight guides whether a Mississippi court may exercise personal jurisdiction over a nonresident defendant. Id. at 998 (¶ 12). The trial court found that no dispute existed that the requirements of Mississippi's long arm statute had been satisfied.

         ¶12. Next, the trial court considered the second step, i.e., whether the exercise of personal jurisdiction over the nonresident defendant would be consistent with the Due Process Clauses of the state and federal constitutions. The trial court found that "[t]he record in this case includes no evidence that [Vitkauskas] ever purposefully made any contact-minimum or otherwise-with Mississippi." The trial court found that the only evidence presented had been an extensive log of telephone calls and text messages between Vitkauskas and Catherine. The trial court noted, however, that Catherine's phone number had been listed as a Memphis, Tennessee number. The trial court, relying on Nordness v. Faucheux, 170 So.3d 454, 461 (¶¶ 28-30) (Miss. 2015), found that "[t]here is some argument of [Douglas]'s counsel in this case that [Vitkauskas] knew of [Douglas]'s wife's Mississippi residency, but no corroborating evidence has been presented to this [trial c]ourt-no affidavits, no testimony[, ] and no documentary evidence with the exception of the phone logs[.]" The trial court concluded that Douglas had failed to meet his burden of showing that Vitkauskas had the constitutionally required purposeful minimum contacts with Mississippi.

         ¶13. Douglas filed a notice of appeal. Douglas argues that the trial court erred (1) by finding that Vitkauskas is not subject to personal jurisdiction in Mississippi and, alternatively, (2) by refusing to allow limited discovery pertaining to personal jurisdiction.


         ¶14. When considering a motion to dismiss, we review the trial court's decision de novo. Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1275 (¶ 6) (Miss. 2006). Likewise, "[w]e review jurisdictional issues de novo. When considering jurisdictional issues, the Court sits in the same position as the trial court, 'with all facts as set out in the pleadings or exhibits, and may reverse regardless of whether the error is manifest.'" Knight, 50 So.3d at 998 (¶ 11) (quoting Horne v. Mobile Area Water & Sewer Sys., 897 So.2d 972, 975 (ΒΆ 7) (Miss. 2004)). Finally, we ...

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