The Cirlot Agency, Inc. v. Sunny Delight Beverage Co.


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Docket Number: 2010-CA-01720-COA

Court of Appeals: Opinion Link
Opinion Date: 04-03-2012
Opinion Author: Griffis, P.J.
Holding: Reversed and remanded

Additional Case Information: Topic: Contract - Breach of agreement - Personal jurisdiction - Long-arm statute - Section 13-3-57 - Creation of intellectual property - Mutual non-disclosure agreement - Due process - Minimum contacts
Judge(s) Concurring: Lee, C.J., Irving, P.J., Barnes, Ishee, Roberts, Carlton, Maxwell, Russell and Fair, JJ.
Procedural History: Dismissal
Nature of the Case: CIVIL - TORTS - OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE

Trial Court: Date of Trial Judgment: 10-04-2010
Appealed from: Rankin County Circuit Court
Judge: William E. Chapman, III
Disposition: MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OVER APPELLEE GRANTED
Case Number: 2008-102C

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: The Cirlot Agency, Inc.




FRANK MALVIN HOLBROOK PAUL MICHAEL ELLIS



 
  • Appellant #1 Reply Brief

  • Appellee: Sunny Delight Beverage Company FRED L. BANKS JR. LUTHER T. MUNFORD JAMES W. CRAIG JILL P. MEYER BENJAMIN LYLE ROBINSON MONICA L. DIAS  

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    Topic: Contract - Breach of agreement - Personal jurisdiction - Long-arm statute - Section 13-3-57 - Creation of intellectual property - Mutual non-disclosure agreement - Due process - Minimum contacts

    Summary of the Facts: Sunny Delight is an Ohio corporation with its principal place of business in Cincinnati. Cirlot is a Mississippi corporation with its principal place of business in Flowood. In February 2007, David Silver, the Brand Manager for Sunny Delight’s soon-to-be launched Elations product line, contacted Cirlot in Mississippi about submitting a marketing campaign for Elations. On February 5, 2007, Silver emailed an executed “Mutual Non-Disclosure Agreement” (“Agreement”) to Lisa Comer at Cirlot. Richard Looser, President and Chief Operating Officer for Cirlot, executed the Agreement on behalf of Cirlot on February 6, 2007, and sent the executed Agreement back to Silver on the same day. Emails between Silver and Comer confirmed that Cirlot would make its proposal to Sunny Delight on February 28, 2007. On the same day, Silver sent an email to Comer to congratulate Cirlot on the proposal and advised that Sunny Delight would be in touch in a few weeks. Silver subsequently advised Cirlot that Sunny Delight had chosen another public-relations firm. Cirlot filed a complaint in the Rankin County Circuit Court, alleging that, despite Sunny Delight’s selection of another marketing firm, Sunny Delight had implemented major components of the marketing strategy that Cirlot had presented to it. The circuit judge, after a hearing, granted Sunny Delight’s motion to dismiss for lack of personal jurisdiction. Cirlot appeals.

    Summary of Opinion Analysis: Whether a Mississippi court may exercise personal jurisdiction over a nonresident defendant is determined through the application of a two-tiered analytical framework. Two distinct questions must be addressed. The first question is whether the defendant is amenable to suit here by virtue of the long-arm statute, section 13-3-57. Assuming an affirmative answer, the second question is whether the defendant is amenable to suit in Mississippi consistent with the due process clauses of the federal constitution, and, as well, this state’s constitution. Cirlot argues that its Agreement with Sunny Delight required contractual performance by Cirlot, in whole or in part, in Mississippi and that Sunny Delight breached the Agreement. Sunny Delight argues that it is not subject to personal jurisdiction in Mississippi because the Agreement “was not a contract for services . . . and did not require or demand that Cirlot prepare a marketing campaign.” However, Sunny Delight’s contention fails to recognize the nature of Cirlot’s business – intellectual property. Thus, where a non-resident defendant, such as Sunny Delight, reaches out to Cirlot, whose stock and trade is the creation of intellectual property, and further requires Cirlot to sign a mutual non-disclosure agreement so that Cirlot can generate concepts and ideas for Sunny Delight, it cannot be said with any reason that the Agreement did not require performance by Cirlot in whole or in part in Mississippi. Furthermore, while the Agreement does require that it be interpreted under Ohio law, the Agreement does not contain a forum-selection clause. Should Sunny Delight have desired further protection with respect to the forum in which it was potentially subject to litigation, it could have dealt with this issue contractually. It did not. Accordingly, Sunny Delight is subject to personal jurisdiction under Mississippi’s long-arm statute. Sunny Delight made the initial contact with Cirlot in Mississippi. When a nonresident defendant takes purposeful and affirmative action, the effect of which is to cause business activity, foreseeable by the defendant in the forum state, such action by the defendant is considered a minimum contact for jurisdictional purposes. Once Sunny Delight formalized its relationship with Cirlot through the Agreement and began exchanging confidential information with Cirlot for the express purpose of enabling Cirlot to prepare a public-relations proposal, Sunny Delight’s activities were such that it could reasonably anticipate being brought into court in Mississippi. Cirlot’s cause of action arose from Sunny Delight’s contacts with Mississippi, which were sufficient to satisfy the due-process requirement of minimum contacts.


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