Sherwin Brook v. J. McCormley, et al

Filing

Filed opinion of the court by Judge Bauer. AFFIRMED. William J. Bauer, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and Diane S. Sykes, Circuit Judge. [6875284-1] [6875284] [16-4255]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 16-4255
SHERWIN A. BROOK, as Trustee of the
David North II Trust, successor to the
assets of Cortina Financial, Inc.,
Plaintiff-Appellant,
v.
J. LAWRENCE MCCORMLEY, et al.,
Defendants-Appellees.

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16 C 7345 — Matthew F. Kennelly, Judge.

ARGUED SEPTEMBER 13, 2017 — DECIDED OCTOBER 11, 2017

Before BAUER, ROVNER, and SYKES, Circuit Judges.
BAUER, Circuit Judge. Plaintiff-appellant, Sherwin Brook
(“Brook”), appeals the district court’s finding that the Northern
District of Illinois lacks personal jurisdiction over the
defendants-appellees, J. Lawrence McCormley and Tiffany &

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Bosco, P.A. (collectively, “Defendants”), for a legal malpractice,
breach of contract, and breach of fiduciary duty lawsuit. For
the reasons set forth below, we affirm.
I. BACKGROUND
Cortina Financial, Inc. (“Cortina”) is a now-dissolved
corporation that was wholly-owned by the David North II
Trust (the “Trust”). The beneficiaries of the Trust lived in
Illinois when the Trust was established; however, in the mid1980s, they relocated to Arizona. In 2011, the Trust became an
Arizona trust. Brook, an Illinois resident, was the president of
Cortina and is the trustee of the Trust. Lawrence McCormley
is a resident of Arizona and an attorney at Tiffany & Bosco, a
law firm with its principal place of business in Arizona.
In 2001, Brook sought out Tiffany & Bosco to represent
Cortina in a lawsuit. The lawsuit arose from a dispute over a
ground lease created when Cortina sold one of four plots of
land the company owned in Scottsdale, Arizona. The suit was
dismissed in 2002.
In 2005, and again in 2013, Cortina sought additional legal
advice from Tiffany & Bosco to analyze the viability of claims
related to the same ground lease under Arizona’s various
statutory limitation periods. In 2014, Cortina requested that
Tiffany & Bosco initiate a nonjudicial foreclosure on the
property. Tiffany & Bosco ultimately decided that the firm’s
involvement in the nonjudicial foreclosure would pose conflict
of interest issues and declined the opportunity to represent
Cortina. Throughout Tiffany & Bosco’s thirteen years representing Cortina, the parties exchanged phone calls and

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correspondence between Arizona and Illinois, but all in-person
meetings occurred in Arizona.
Cortina filed suit against Defendants in the Northern
District of Illinois alleging legal malpractice, breach of contract,
and breach of fiduciary duty. After the district court requested
a jurisdictional statement, Cortina substituted in Brook as the
plaintiff through an amended complaint.
The district court dismissed Brook’s amended complaint for
lack of personal jurisdiction. The district court acknowledged
that Defendants entered into a business relationship with an
Illinois plaintiff, but pointed out that the activities were strictly
conducted in Arizona. Additionally, the court cited the lack of
evidence showing that Defendants reached out to or solicited
Cortina, the Trust, or Brook to enter into the relationship.
Brook appeals.
II. DISCUSSION
The standard of review for a dismissal based on lack of
personal jurisdiction is de novo. Tamburo v. Dworkin, 601 F.3d
693, 700 (7th Cir. 2010). In order for a district court to bind an
individual, the court must have personal jurisdiction over that
individual. Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 701 (1982). The plaintiff bears the burden
of establishing personal jurisdiction. Cent. States, Se. & Sw.
Areas Pension Fund v. Reimer Express World Corp., 230 F.3d 934,
939 (7th Cir. 2000).
As a procedural matter, federal courts look to state law in
determining the bounds of their jurisdiction over a party. Fed.
R. Civ. P. 4(k)(1)(A); see also Walden v. Fiore, 134 S. Ct. 1115,

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1121 (2014). The Illinois long-arm statute permits the court to
exercise jurisdiction to the full extent permitted by the Due
Process Clause of the Fourteenth Amendment. 735 Ill Comp
Stat 5/2-209(c). Thus, the state statutory and federal constitutional requirements merge. Tamburo, 601 F.3d at 700.
The Due Process Clause of the Fourteenth Amendment
limits the power of a court to render a judgment over nonresident defendants. World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286, 291 (1980). To determine this constitutional limitation,
courts must determine whether the defendant had sufficient
“minimum contacts […] such that the maintenance of the suit
does not offend traditional notions of fair play and substantial
justice.” Int’l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945) (quoting
Milliken v. Meyer, 311 U.S. 457, 463 (1940)) (internal quotations
omitted). While the defendant’s physical presence in the forum
State is not required, there must be sufficient minimum
contacts such that he or she “should reasonably anticipate
being haled into court there.” Burger King Corp. v. Rudzewicz,
471 U.S. 462, 474 (1985) (quoting World-Wide Volkswagen Corp.,
444 U.S. at 297).
Jurisdiction over a defendant can be established either
through general or specific jurisdiction. Tamburo, 601 F.3d at
701. General jurisdiction looks to the defendant’s “continuous
and systematic” contacts with a state, whether or not the action
is related to the contacts. Helicopteros Nacionales de Colombia,
S.A. v. Hall, 466 U.S. 408, 416 (1984). Here, there is no contention that general jurisdiction is present; so, we will only
address specific jurisdiction. Specific jurisdiction “refers to
jurisdiction over a defendant in a suit arising out of or related

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to the defendant’s contacts with the forum.” GCIU-Emp’r Ret.
Fund v. Goldfarb Corp., 565 F.3d 1018, 1023 (7th Cir. 2009).
Specific jurisdiction requires a defendant’s contacts with the
forum State to be directly related to the conduct pertaining to
the claims asserted. Tamburo, 601 F.3d at 702. The mere fact that
a defendant’s conduct affects a plaintiff with connections to the
forum State is not sufficient to establish jurisdiction. Advanced
Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d
796, 801 (7th Cir. 2014) (quoting Keeton v. Hustler Magazine, Inc.,
465 U.S. 770, 775 (1984)). The inquiry must focus on “the
relationship among the defendant, the forum, and the litigation.” Walden, 134 S. Ct. at 1122 (quoting Keeton, 465 U.S. at 775)
(internal quotations omitted). The defendant’s relationship
with the plaintiff is not sufficient to create the necessary
“minimum contacts.” Walden, 134 S. Ct. at 1123. Rather, “the
relationship must arise out of contacts that the defendant
himself creates with the forum State,” and “the defendant’s
contacts with the forum State itself.” Id. at 1122 (emphasis
provided).
We find Brook’s argument based on Illinois’ long-arm
statute to be unpersuasive. Brook argues that three enumerated sections in Illinois’ long-arm statute are applicable here;
specifically that the transaction involved: (1) “[t]he commission
of a tortious act within this State;” (2) “[t]he making or performance of any contract or promise substantially connected with
this State;” and (3) “[t]he breach of any fiduciary duty within
this State.” 735 Ill Comp Stat 5/2-209(a)(2), (7) and (11). These
assertions are based on correspondence from Arizona, telephone calls, the contract governing the attorney-client relation-

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ship, attorneys’ fees sent from Illinois, and Brook having felt
the injury in Illinois. We find this unpersuasive. Brook attempts
to use Defendants’ relationship with himself to establish
personal jurisdiction, not the Defendants’ relationship with
Illinois.
We find Walden particularly instructive in this case. In
Walden, a police officer searched and seized a large sum of cash
from two individuals in Georgia before they boarded their
flight for Nevada. Walden, 134 S. Ct. at 1119. In an effort to
retrieve their property, communications commenced between
the two individuals in Nevada and the officer in Georgia. Id.
Amongst these communications were phone calls from
Nevada, documentation from Nevada, and an affidavit from
Georgia showing probable cause to seize the cash. Id. The two
individuals filed suit in a district court in Nevada. Id. at 1120.
Our Supreme Court found a lack of personal jurisdiction
because the officer “never traveled to, conducted activities
within, contacted anyone in, or sent anything or anyone to
Nevada.” Id. at 1124. The Court held that the district court in
Nevada lacked personal jurisdiction over the officer. Id. at
1121.
Here, as in Walden, the tenuous contacts with Illinois are
insufficient to establish personal jurisdiction. Defendants in this
case never sought out nor conducted business in Illinois, rather
Cortina sought out legal services from Defendants. The subject
matter of the representation was land in Arizona subject to
Arizona law. All business on behalf of Cortina was done in
Arizona by an Arizona based law firm with Arizona lawyers.
Put quite simply, Brook, a substituted plaintiff, is the only link

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Defendants have with the forum State. Brook has failed to
establish that the district court has personal jurisdiction over
Defendants.
III. CONCLUSION
For the forgoing reasons, we AFFIRM the district court’s
dismissal for lack of personal jurisdiction.