DOUGLAS MICHAEL LONG JR.
DAVID J. VITKAUSKAS
OF JUDGMENT: 04/04/2018
COUNTY CIRCUIT COURT. HON. CELESTE EMBREY WILSON JUDGE.
COURT ATTORNEYS: MICHAEL J. MALOUF A. E. (RUSTY) HARLOW JR.
ATTORNEYS FOR APPELLANT: MICHAEL J. MALOUF ROBERT E. JONES
ATTORNEYS FOR APPELLEE: A. E. (RUSTY) HARLOW JR. KATHI C.
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.
AND PROCEDURAL HISTORY
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.
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.
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.
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[.]"
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.
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
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.
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.
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.
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.
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.
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
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.
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 (¶ 7) (Miss. 2004)).
Finally, we ...