New Bern Pool & Supply Co. v. Graubart , 94 N.C. App. 619 ( 1989 )

Judge EAGLES

dissenting.

I dissent because I believe there is insufficient basis to support a finding of in personam jurisdiction.

Minimum contacts necessary to satisfy due process requirements and acquire in personam jurisdiction are not ascertainable by application of mechanical rules but involve a weighing of the facts of each case. Marion v. Long, 72 N.C. App. 585, 587, 325 S.E. 2d 300, 302, appeal dismissed and disc. rev. denied, 313 N.C. 604, 330 S.E. 2d 612 (1985). In making the evaluation here the majority has erred in two respects. First, it has, in marshaling the facts to show minimum contacts, included contacts with North Carolina that are not related to the conduct giving rise to this action but relate primarily to plaintiffs remedy and to the proof of plaintiff’s damages. Second, even if we consider all the facts including those relating to remedy and damages, I believe they are insufficient in the aggregate to satisfy due process.

From the record it is clear that the defendant solicited prospective purchasers by advertising in a national trade magazine which was directed into North Carolina, among other places. Defendant also responded from New York to plaintiff’s telephone and mail inquiries made from North Carolina. Defendant was never in North Carolina but in New York accepted and negotiated a deposit or earnest money check drawn in North Carolina on a North Carolina bank delivered by United States mail from North Carolina. There are no other contacts with North Carolina in this case. In my judgment these contacts are not sufficient to pass constitutional muster.

All the critical representations, inspections of the aircraft, final negotiations of sale, final payment and delivery of the airplane took place outside of North Carolina. While defendant’s alleged conduct was reprehensible and potentially dangerous to plaintiff and his young son, almost all of that alleged misconduct occurred elsewhere — outside of North Carolina.

Unless we are prepared to say that placing an advertisement in a national trade magazine which comes into North Carolina and responding to inquiries from North Carolina generated by the advertisement constitute sufficient minimum contacts to satisfy due process, the judgment should be reversed and the case remanded for entry of dismissal for lack of in personam jurisdiction. We have said that advertisement in a national magazine is not sufficient contact to comply with due process. Hankins v. Somers, 39 N.C. App. 617, 621, 251 S.E. 2d 640, 643, disc. rev. denied, 297 N.C. 300, 254 S.E. 2d 920 (1979). We have also said that advertisement plus a visit by the defendant to close the contract in North Carolina do not constitute sufficient contacts with the State to exercise personal jurisdiction over the defendant. Marion, supra, 72 N.C. App. at 589, 325 S.E. 2d at 303.

I would vote to reverse and remand for entry of an order dismissing the case.