Rockaway Commuter Line, Inc. v. Denham, et al.
| Docket Number: | 2003-IA-00751-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 10-21-2004 Opinion Author: Waller, P.J. Holding: Reversed and Rendered |
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| Additional Case Information: |
Topic: Wrongful death - Personal jurisdiction - Long-arm statute - Section 13-3-57 - Waiver of defense of lack of personal jurisdiction - Untimely answer - M.R.C.P. 12(h) - M.R.C.P. 12(a) - M.R.C.P. 12(b)(2) Judge(s) Concurring: Smith, C.J., Cobb, P.J., Carlson and Dickinson, JJ., Non Participating Judge(s): Diaz, Graves and Randolph, JJ., Dissenting Author : Easley, J. Procedural History: Interlocutory Appeal Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 05-31-2001 Appealed from: Smith County Circuit Court Judge: Robert G. Evans Disposition: Denied Rockaway's motion to dismiss for lack of personal jurisdiction. Case Number: 97-0247 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Rockaway Commuter Line, Inc. |
L. CLARK HICKS, JR. |
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| Appellee: | John Denham on Behalf of the Wrongful Death Heirs of Ollie Denham; Raesine Denham by and through Her Father and Next Friend, John Denham; and Carolyn A. McSwain | JOSEPH E. ROBERTS, JR. EUGENE COURSEY TULLOS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Wrongful death - Personal jurisdiction - Long-arm statute - Section 13-3-57 - Waiver of defense of lack of personal jurisdiction - Untimely answer - M.R.C.P. 12(h) - M.R.C.P. 12(a) - M.R.C.P. 12(b)(2) |
| Summary of the Facts: | Rockaway Commuter Line, Inc., a New York corporation with no contacts with the State of Mississippi, owned a commuter van driven by Sylvan Collard. The van driven by Collard collided with a vehicle driven by Carolyn McSwain, a resident of Covington County, while she was in Queens, New York. Inside the vehicle, owned by John Denham, were John's mother, Ollie Denham, and his minor child, Raesine Denham. All three occupants of the Denham vehicle were injured, and Ollie Denham later died as a result of her injuries. Each of the Denhams is a resident of Covington County. John Denham filed a wrongful death suit in the Smith County Circuit Court against Rockaway, Collard, and McSwain on behalf of the wrongful death heirs of Ollie Denham and for the injuries sustained by Raesine Denham. McSwain filed a cross-claim against Rockaway and Collard. Rockway filed a Motion to Dismiss for Improper Service of Process, a Motion to Dismiss or to Change Venue from Smith County to New York or in the Alternative to a Proper County in Mississippi, and a Motion to Dismiss for Lack of Personal Jurisdiction. The court granted the motion to dismiss in favor of Rockaway but then entered an order denying the motion two days later. The Supreme Court granted Rockaway permission to bring an interlocutory appeal. |
| Summary of Opinion Analysis: | Issue 1: Personal jurisdiction The exercise of in personam jurisdiction over a nonresident defendant may be achieved pursuant to Mississippi's long-arm statute, section 13-3-57. In order for the long-arm statute to apply, the nonresident corporation must be a corporation which is not qualified to do business in this state. If that condition is satisfied, the long-arm statute authorizes in personam jurisdiction where the nonresident made a contract with a resident of this state to be performed in whole or in part in this state; the nonresident committed a tort in whole or in part in this state against a resident or nonresident of this state; or the nonresident did business or performed any character of work or service in this state. Rockaway is not qualified to do business in Mississippi and, therefore, meets the threshold requirement for coverage under the long-arm statute. However, there is no evidence demonstrating that Rockaway has acted in such a way as to be brought under the contract, tort, or "doing business in" provisions of the long-arm statute. Issue 2: Untimely answer Denham argues that M.R.C.P. 12(h) states that the defense of lack of personal jurisdiction is waived if not made by motion or answer filed within thirty days after service of process or an extension thereof under Rule 12(a). He argues that in failing to meet the thirty day answer requirement of Rule 12(a), Rockaway simultaneously waived the personal defenses it brought along with its untimely answer. Although Rule 12(h) does provide for certain circumstances in which a defense may be waived, it creates no overlap between the Rule 12(a) thirty-day answer requirement and any defenses which may be coupled with an untimely answer. The only connection between Rockaway's answer and its Rule 12(b)(2) defense was the mere fact that they were brought at the same time. Rockaway has done nothing under Rule 12(h) to surrender its right to object to personal jurisdiction. It could not have violated Rule 12(h)(1), because it never made any pre-answer motions; and when it did give its answer, it included the motion to dismiss for lack of personal jurisdiction. A defendant who complies with the procedural requirements of Rule 12(h)(1) runs the risk of waiving his Rule 12(b)(2) defense only if he engages in extensive pretrial activity before bringing the motion to dismiss for lack of personal jurisdiction. Rockaway did not participate at all in the litigation before bringing the Rule 12(b)(2) motion along with its answer. |
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