Motion to Dismiss For Lack of Personal Jurisdiction in Georgia

Background

“A motion to dismiss for lack of personal jurisdiction must be granted if there are insufficient facts to support a reasonable inference that defendant can be subjected to the jurisdiction of the court.” (Millard v. Millard (1992) 204 Ga. App. 399, 401 citing Beasley v. Beasley (1990) 260 Ga. 419, 420.)

General Information for Complaints and Motions

“On a motion to dismiss for lack of personal jurisdiction, the defendant bears the onus of proving lack of personal jurisdiction.” (Genesis Research Institute v. Mail Clearing House (2000) 247 Ga. App. 744 [internal citations omitted].)

Further, “any disputes of fact in the written submissions supporting and opposing the motion to dismiss are resolved in favor of the party asserting the existence of personal jurisdiction.” (Id.)

Three-Part Test for Personal Jurisdiction and Non-Residents

“In determining whether a non-resident could reasonably anticipate being summoned into a Georgia court, courts apply a three-part test.” (Stanton v. Harris (2020) 356 Ga. App. 554, 556 Aero Toy Store, LLC v. Grieves (2006) 279 Ga. App. 515, 517-518 (1).)

“Jurisdiction exists on the basis of transacting business in this state if:

1. the nonresident defendant has purposefully done some act or consummated some transaction in this state,
2. if the cause of action arises from or is connected with such act or transaction, and
3. if the exercise of jurisdiction by the courts of this state does not offend traditional fairness and substantial justice.”

“[Courts] analyze the first two prongs of this test to determine whether a defendant has established the minimum contacts with the forum state necessary for the exercise of jurisdiction. And if such minimum contacts are found, [courts] then analyze the third prong[.]” (Stanton v. Harris (2020) 356 Ga. App. 554, 556 citing Weathers v. Dieniahmar Music, LLC (2016) 337 Ga. App. 816, 820 (1)[internal citations omitted].)

“In other words, before a plaintiff can sue a nonresident in Georgia, such nonresident ‘must have purposefully directed [her] activities at residents of the forum, and the litigation must result from alleged injuries that arise out of or relate to those activities.’” (Stanton v. Harris (2020) 356 Ga. App. 554, 556 citing Sol Melia, SA v. Brown (2009) 301 Ga. App. 760, 764 (1).)

Standard of Review and Burdens of Proof

“[B]ecause [a] motion [to dismiss for lack of personal jurisdiction] [is] decided on the basis of written submissions, the appellate standard of review is non-deferential.” (Genesis Research Institute v. Mail Clearing House (2000) 247 Ga. App. 744; see also Stanton v. Harris (2020) 356 Ga. App. 554, 556.)

The Court’s Decision

“A motion to dismiss for lack of personal jurisdiction is a motion in abatement and not a motion in bar.” (Behar v. Aero Med Intl., Inc. (1988) 185 Ga. App. 845 citing Hemphill v. Con-Chem (1973) 128 Ga. App. 590, 591-592; see Ogden Equip. Co. v. Talmadge Farms (1974) 232 Ga. 614; Myers v. McLarty (1979) 150 Ga. App. 432, 433.) “Thus, motions to dismiss for lack of personal jurisdiction cannot be disposed of as motions for summary judgment.” (Id.) “The proper procedure in disposing of matters in abatement before trial is found in OCGA §§ 9-11-12 and 9-11-43.” (Ogden Equip., supra at 615.)

Affidavits in Support of Motion

“Motions to dismiss for lack of jurisdiction over the person, [OCGA § 9-11-12 (b)(2)] when tried on affidavits pursuant to OCGA § 9-11-43 (b), do not become motions for summary judgment.” (Behar v. Aero Med Intl., Inc. (1988) 185 Ga. App. 845, 846 citing McPherson v. McPherson (1977) 238 Ga. 271 (1).)

“However, affidavits made in support of OCGA § 9-11-12 (b) motions must conform to the requirements of OCGA § 9-11-56 (e). Although the requirements of OCGA § 9-11-56 (e) are not expressly applicable to affidavits in general, those requirements stand as a codification of the common law requirements as to affidavits and hence are applicable as such.” (Id.)