Rehearing and Rehearing En Banc Denied October 22, 1982.
ALVIN B. RUBIN, Circuit Judge:
This suit was dismissed by the district court for want of jurisdiction on the basis that due process would be denied by assuming jurisdiction over a nonresident defendant whose sole contact with the forum state was the making of a single defamatory telephone call to a person in that state. Concluding that, under the facts presented, due process permits invocation of jurisdiction over a nonresident who commits in whole or in part a single tort in a state, we reverse.
Seeking the benefit of diversity jurisdiction, 28 U.S.C. § 1332 (1976), which permits a resident of the forum state to resort to federal court to assert a claim against a nonresident for relief that a state court could afford,
The plaintiffs alleged that the defendants conspired to and did cause them economic and other injuries, and, although relying on diversity jurisdiction, that the defendants also violated the Sherman Antitrust Act, 15 U.S.C. §§ 1-7, and the Robinson-Patman Act, 15 U.S.C. §§ 13-13b, 21a. This was accomplished, they contend, in October 1979 when Kralis made a defamatory telephone call from Indiana to the United States Attorney in Oxford, Mississippi. The plaintiffs
Service of process was made under the Mississippi long-arm statute, Miss. Code Ann. § 13-3-57 (Cum. Supp. 1981).
In a diversity action a federal court enjoys jurisdiction over a nonresident defendant to the extent permitted by the long-arm statute of the forum state. Quasha v. Shale Dev. Corp., 667 F.2d 483, 485-86 (5th Cir. 1982); Moore v. Lindsey, 662 F.2d 354, 357-58 (5th Cir. 1981); Fed. R. Civ. P. 4(d)(7), (e); 4 C. Wright & A. Miller, Federal Practice and Procedure § 1115, at 470 (1969). Two tests must be met before a state statute can confer jurisdiction over a
The party invoking the jurisdiction of a federal court bears the burden of establishing the court's jurisdiction over a nonresident defendant. Southwest Offset, Inc. v. Hudco Publishing Co., 622 F.2d 149, 152 (5th Cir. 1980) (per curiam); Thorington v. Cash, 494 F.2d 582, 584 n. 4 (5th Cir. 1974). Because the district court decided the defendants' motion solely on the basis of affidavits, the plaintiffs were required only to present a prima facie case for personal jurisdiction. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981); Data Disc, Inc. v. Systems Technology Assocs., 557 F.2d 1280, 1285 (9th Cir. 1977).
In this case jurisdiction was predicated on one long-distance telephone call that was alleged to constitute a tort committed "in whole or in part" in Mississippi. The plaintiffs carried their burden of establishing jurisdiction by alleging in their complaint and affidavits facts to support their claim that Kralis defamed them and caused them injury in Mississippi. Although there are conflicts between some of the facts alleged by the plaintiffs and those alleged by the defendants in their affidavits, such conflicts "must be resolved in plaintiff[s'] favor for purposes of determining whether a prima facie case for in personam jurisdiction has been established." United States Ry. Equip. Co. v. Port Huron & Detroit R.R., 495 F.2d 1127, 1128 (7th Cir. 1974).
The Mississippi long-arm statute, supra note 2, provides: "Any nonresident person ... who shall ... commit a tort in whole or in part in this state against a resident ... of this state ... shall by such act or acts be deemed to be doing business
The district court erroneously concluded, however, that this one contact was insufficient under the due process clause to subject the defendants to in personam jurisdiction. The number of contacts with the forum state is not, by itself, determinative. Quasha v. Shale Dev. Corp., 667 F.2d at 488; Product Promotions, Inc. v. Cousteau, 495 F.2d 483, 495 (5th Cir. 1974).
"When a defendant purposefully avails himself of the benefits and protection of the forum's laws — by engaging in activity ... outside the state that bears reasonably foreseeable consequences in the state — maintenance of the law suit does not offend traditional notions of fair play and substantial justice." Mississippi Interstate Express, Inc. v. Transpo, Inc., 681 F.2d 1003, 1007 (5th Cir. 1982) (citation omitted). In addition to the existence of foreseeable consequences, courts consider "the quantity of contacts, and the source and connection of the cause of action with those contacts" in determining whether a defendant's actions constitute "purposeful availment." Products Promotions, Inc. v. Cousteau, 495 F.2d 483, 494 n. 17 (5th Cir. 1974). Accord Standard Fittings Co. v. Sapang, S.A., 625 F.2d 630, 643 (1980), cert. denied, 451 U.S. 910, 101 S.Ct. 1981, 68 L.Ed.2d 299 (1981).
Two other factors are also relevant in determining whether the exercise of personal jurisdiction comports with due process. The first is "the interest of the state in providing a forum for the suit." Austin v. North American Forest Products, Inc., 656 F.2d 1076, 1090 (5th Cir. 1981); Products Promotions, supra, 495 F.2d at 498. Finally, the "relative conveniences and inconveniences to the parties" are also relevant. Austin, supra, 656 F.2d at 1090; Products Promotions, supra, 495 F.2d at 495.
These considerations lead us to conclude that the defendants are not denied
We intimate no opinion concerning the sufficiency of the evidence against the defendants to survive a motion for summary judgment. That issue, like many others lurking in the case, may be presented to the district court now that its jurisdiction is established.
The judgment of dismissal is REVERSED and the case is REMANDED for further proceedings consistent with this opinion.