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SLOCUM v. SANDESTIN BEACH RESORT HOTEL

February 25, 1988

Roy Slocum, Mrs. Roy Slocum and Felver A. Rowell, Jr., Legal Guardian of Andrea Epperson, A Minor, Plaintiffs
v.
The Sandestin Beach Resort Hotel, A Division Of Beachside # 1 Condo Association, Beachside # 1 Condo Association and Otis Elevator Company of Florida, Defendants



The opinion of the court was delivered by: WOODS

 Henry Woods, U.S. District Judge.

 Separate defendants Sandestin Beach Resort Hotel, a division of Beachside # 1 Condo Association, and Beachside # 1 Condo Association have submitted the pending joint motion to dismiss pursuant to Fed. R. Civ. P. 12(b). Because the exercise of in personam jurisdiction by this Court over these defendants would be violative of Ark. Stat. Ann. § 27-2502 (Repl. 1977), now codified at Ark. Code Ann. § 16-4-101 (1987), and the Due Process Clause of the United States Constitution, we grant their motion to dismiss.

 The facts in the case at bar are relatively clear. The plaintiffs are residents of the State of Arkansas. The moving defendants are corporations organized, and doing business, in the State of Florida. Prior to August of 1984, the plaintiffs had used the resort facilities operated by the defendants in Destin, Florida. As a result of having stayed in those resort facilities, the plaintiffs were placed on the defendants' mailing list and solicited for future visits. The defendants also solicited other residents of the State of Arkansas as potential customers of their resort facilities. In addition, they contacted numerous travel agencies in this state for the purpose of soliciting the patronage of residents from this state.

 During the first weeks of August, 1984, the plaintiffs again visited the resort facilities operated by the defendants in Destin, Florida, apparently as a result of the defendants' solicitation efforts. During their visit, on August 9, the plaintiffs were injured while riding an elevator in the resort facilities. They have now initiated this lawsuit in the State of Arkansas and seek to invoke the jurisdiction of this Court on the grounds of diversity of citizenship. *fn1" They have apparently served the defendants pursuant to the Arkansas long-arm statute, although that fact is not abundantly clear from their complaint. The moving defendants request that we dismiss the complaint at bar for a number of reasons, the most persuasive being the lack of personal jurisdiction.

 By virtue of Fed. R. Civ. P. 4(e), a federal court in a diversity action enjoys jurisdiction over a nonresident defendant to the extent permitted by the forum state's long-arm statute. See Mountaire Feeds, Inc. v. Agro Impex, S.A., 677 F.2d 651, 653 (8th Cir. 1982).

 
Although the reach of the state long-arm statute is a question of state law and federal courts are required to accept the interpretation given the statute by the state supreme court, the extent to which the reach of the long-arm statute is limited by due process is a question of federal law. [Citations omitted]. The Arkansas Supreme Court has interpreted the reach of that Arkansas long-arm statute to be coextensive with that permitted by due process. See, e.g., Nix v. Dunavant, 249 Ark. 641, 460 S.W.2d 762 (1970). See also Martin v. Kelley Electric Co, 371 F. Supp. 1225 (E.D.Ark. 1974).

 The Arkansas long-arm statute provides, in part, that this Court may exercise personal jurisdiction over a corporation as to a cause of action or claim for relief arising from the corporation having "transact[ed] any business in this state." See Ark. Stat. Ann. § 27-2502(C)(1)(a) (Repl. 1977). Although the plaintiffs do not articulate that particular provision as the basis for our jurisdiction over the defendants, it is apparent from their pleadings that they rely upon this section of the long-arm statute. The plaintiffs maintain that the defendants have transacted business in this state as a result of having used the "interstate media" to solicit customers in this state. These customers include the plaintiffs and other residents of Arkansas contacted by way of personal mail solicitations and through local travel agencies acting upon the defendants' solicitations. The plaintiffs offer no other examples of the defendants "transacting any business in this state."

 The crucial inquiry at this juncture is what type of conduct amounts to transacting business. We find that the plaintiffs have the burden of demonstrating that personal jurisdiction is proper. See Aaron Ferer & Sons Co. v. Diversified Metals Corp., 564 F.2d 1211, 1215 (8th Cir. 1977) (once jurisdiction has been controverted or denied, the plaintiff has the burden of proving that personal jurisdiction is proper). It is a burden the plaintiffs have failed to carry.

 The plaintiffs do not allege that the defendants maintain an office or agent in the State of Arkansas. They do not allege that a sales representative or employee of the defendants has ever entered into the State of Arkansas to solicit customers for the resort. They do not allege that the agreement for lodging at the defendants' resort was entered into in the State of Arkansas. The only contact the defendants are alleged to have with this state is through the "interstate media." Although the Arkansas legislature intended the term "transacting business" to be construed to expand the in personam jurisdiction of its courts over nonresident defendants to the maximum allowed by due process, see Jagitsch v. Commander Aviation Corp., 9 Ark. App. 159, 655 S.W.2d 468 (1983), "'the use of arteries of interstate mail [and] telephone . . . is insufficient, standing alone, to satisfy due process.'" See Mountaire Feeds, Inc. v. Agro Impex, S.A., 677 F.2d at 656 [quoting Aaron Ferer & Sons v. Atlas Scrap Iron & Metal Co., 558 F.2d 450, 453 (8th Cir. 1977)]. Because the defendants transacted no business in this state, this Court has no personal jurisdiction over them, and their motion to dismiss must be granted.

 Assuming, arguendo, that the plaintiffs could show that the defendants have transacted business in the State of Arkansas, the result would be the same. The Arkansas long-arm statute provides, in part, that when personal jurisdiction is based solely upon the provisions of that statute, "only a cause of action or claim for relief arising from acts enumerated in this section may be asserted against [a defendant]." See Ark. Stat. Ann. § 27-2502(C)(2). "In other words, there must be a relationship between the defendants' connection with Arkansas . . . and the injury complained of." See Krone v. A.M.I., Inc., 367 F. Supp. 1141, 1143 (E.D.Ark. 1973).

 In the case at bar, the plaintiffs have not alleged that there is a relationship between the defendants' connection with the State of Arkansas and the injuries they sustained at the Destin, Florida resort. Anticipating that the plaintiffs would allege the solicitation efforts made by the defendants in Arkansas are in some way related to the injuries they sustained, we find that this relationship is not actual but rather antecedent. In that regard, Krone is instructive. In Krone, plaintiff, a resident of the State of Arkansas, made a reservation at a hotel in the State of Louisiana by means of a teletype system at a hotel in the same chain in the State of Arkansas. During his stay at the Louisiana hotel, plaintiff was injured and subsequently brought a personal injury action against the Louisiana hotel in the State of Arkansas. The district court, on defendant's motion to quash, found that under the Arkansas long-arm statute, the court did not have personal jurisdiction over defendant because the business transacted by defendant had no relationship to the injuries sustained by plaintiff.

 
In this case, the acts of the plaintiff and the defendant in making a contract for the renting of a room in Shreveport by means of the Holidex system amounted to nothing more than an antecedent fact having nothing whatever to do with the injury that plaintiff claims to have sustained. Plaintiff would have received his injury had he made his reservation by a direct telephone call from his own home in North Little Rock to the Holiday Inn in Shreveport, or indeed if he had made ...

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