Lind v. Allen & Withrow et al

Filing 22

ORDER granting 9 Motion to Dismiss for Lack of Jurisdiction. Mr. Lind's claims against separate defendant TLO are dismissed without prejudice. Signed by Judge Kristine G. Baker on 3/1/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
LITTLE ROCK DIVISION
DEREK LIND
v.

PLAINTIFF
Case No. 4:12-cv-588 KGB

ALLEN & WITHROW, Attorneys
At Law; TLO, LLC

DEFENDANTS

OPINION AND ORDER
Separate defendant TLO, LLC, (“TLO”) filed a motion to dismiss for lack of jurisdiction
(Dkt. No. 9). Plaintiff Derek Lind responded (Dkt. No. 11). This Court has extended several
times Mr. Lind’s deadline to supplement his response to the motion to dismiss (Dkt. Nos. 17,
20). Mr. Lind’s deadline for doing so has passed, and he has not supplemented his response.
TLO’s motion to dismiss for lack of personal jurisdiction is granted.
Federal Rule of Civil Procedure 12(b)(2) provides that a party may move to dismiss
claims for lack of jurisdiction over the person. “To survive a motion to dismiss for lack of
personal jurisdiction, the plaintiff need only make a prima facie showing of personal jurisdiction
over the defendant.” Digi-Tel Holdings v. Proteq Telecoms., 89 F.3d 519, 522 (8th Cir. 1996).
Such a prima facie showing “must be tested, not by the pleadings alone, but by the affidavits and
exhibits presented with the motions and opposition thereto.” Dever v. Hentzen Coatings, Inc.,
380 F.3d 1070, 1072 (8th Cir. 2004). Plaintiff who seeks to establish personal jurisdiction
carries the burden of proof, and the burden does not shift to the party challenging jurisdiction.
Laseraim Tools, Inc. v. SDA Mfg., LLC, 624 F.Supp.2d 1027, 1030 (E.D. Ark. 2008). Although
the plaintiff bears the ultimate burden of proof, personal jurisdiction over the defendant need not
be proved by a preponderance of the evidence until trial or until the Court holds an evidentiary
hearing. See Dakota Industries, Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1387 (8th Cir.

1991) (citing Cutco Ind. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986)). “If the district court
does not hold a hearing and instead relies on pleadings and affidavits, . . . the court must look at
the facts in the light most favorable to the nonmoving party, and resolve all factual conflicts in
favor of that party.” Id. (citations omitted).
Mr. Lind brings this action pursuant to the Fair Credit Reporting Act, 15 U.S.C. § 1681
(“FCRA”). In federal question cases, the Supreme Court has held that in the absence of any
statutory provision for service of process a non-resident defendant’s amenability to suit is
determined by reference to the state’s long-arm statute. Omni Capital International v. Rudolf
Wolff & Co., Ltd., 484 U.S. 97 (1987). Arkansas’s long-arm statute extends personal jurisdiction
over a non-resident to the maximum extent permitted by the due process clause of the Fourteenth
Amendment. Ark. Code Ann. § 16-4-101(B). Therefore, the Court’s analysis in this case turns
on whether the exercise of jurisdiction is permitted by the Due Process Clause, which requires
that the defendant “have certain minimum contacts with [the forum state] such that the
maintenance of the suit does not offend the traditional notions of fair play and substantial
justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
Due process requires courts to consider the “quality and nature” of the defendant’s
activities. Id. at 319. Personal jurisdiction does not exist when the forum state “has no contacts,
ties, or relations” to the defendants. Id. The Supreme Court has held that “it is essential in each
case that there be some act by which the defendant purposefully avails himself of the privilege of
conducting activities within the forum State, thus invoking the benefits and protections of its
laws.” Hanson v. Denckla, 357 U.S. 235, 253 (1958).
In World-Wide Volkwagen Corp. v. Woodson, the Supreme Court concluded that “the
defendant’s conduct and connection with the forum State” were such that he could “reasonably

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anticipate being haled into court there.” 444 U.S. 286, 297 (1980). “This ‘purposeful availment’
requirement ensures that a defendant will not be haled into a jurisdiction as a result of ‘random,’
‘fortunate,’ or ‘attenuated,’ contacts.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475
(1985) (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984)).
When deciding a personal-jurisdiction issue, this Court considers five factors to
determine whether the exercise of jurisdiction is consistent with due process, “with the first three
factors being of primary importance. . . .” Burlington Industries, Inc. v. Maples Industries, Inc.,
97 F.3d 1100, 1102 (8th Cir. 1996).

The five factors as identified by the Eighth Circuit are:

“(1) the nature and quality of the contacts with the forum state; (2) the quantity of the contacts
with the forum; (3) the relation of the cause of action to these contacts; (4) the interest of the
forum state in providing a forum for its residents; and (5) the convenience of the parties.” DigiTel Holdings, 89 F.3d at 522-23. The first three are closely related and can be considered
together. Id. at 523.
Courts have elaborated on the third factor – the relationship of the cause of action to the
contacts – to distinguish between general and specific jurisdiction. Bell Paper Box, Inc. v. U.S.
Kids, Inc., 22 F.3d 816, 819 (8th Cir. 1994)(citing Helicopteros Nacionales de Colombia, S.A. v.
Hall, 466 U.S. 408, 414–15 (1984)). “A state may exercise general jurisdiction if a defendant
has carried on in the forum state a continuous and systematic, even if limited, part of its general
business; in such circumstances the alleged injury need not have any connection with the forum
state.” Steinbuch v. Cutler, 518 F.3d 580, 586 (8th Cir. 2008); see also Keeton, 465 U.S. at 779.
Specific jurisdiction is proper “only if the injury giving rise to the lawsuit occurred within or had
some connection to the forum state, meaning that the defendant purposely directed its activities

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at the forum state and the claim arose out of or relates to those activities.” Id. (citing Burger
King Corp., 471 U.S. at 472).
In Lakin v. Prudential Securities, Inc., 348 F.3d 704, 711 (8th Cir. 2003), the Eighth
Circuit determined that the analytical model set out in Zippo Mfg. Co. v. Zippo Dot Com, Inc.,
952 F.Supp. 1119 (W.D. Pa. 1997), is appropriate when considering whether a website can
provide sufficient contacts for specific personal jurisdiction. See P. S. Products, Inc. v. Maxsell
Corp., No. 4:12CV00214 SWW, 2012 WL 3860609 (E.D. Ark. Sept. 5, 2012). This analytical
model likely is appropriate in this case, given the facts alleged by Mr. Lind. The Zippo court
noted:
At one end of the spectrum are situations where a defendant clearly does business
over the Internet. If the defendant enters into contracts with residents of a foreign
jurisdiction that involve the knowing and repeated transmission of computer files
over the Internet, personal jurisdiction is proper. At the opposite end are
situations where a defendant has simply posted information on an Internet Web
site which is accessible to users in foreign jurisdictions. A passive Web site that
does little more than make information available to those who are interested in it
is not grounds for the exercise [of] personal jurisdiction. The middle ground is
occupied by interactive Web sites where a user can exchange information with the
host computer. In these cases, the exercise of jurisdiction is determined by
examining the level of interactivity and commercial nature of the exchange of
information that occurs on the Web site.
Zippo, 952 F.Supp. at 1124.
Mr. Lind fails to carry his burden of establishing personal jurisdiction over TLO in
Arkansas. There is nothing in the record before the Court to establish how Allen & Withrow
contacted TLO, whether there was a “contract” between Allen & Withrow and TLO as Mr. Lind
alleges in his response, or the number of times Allen & Withrow or other Arkansas individuals
or entities contacted TLO for its services. Although Zippo provides an analytical framework for
determining personal jurisdiction when websites and web-based business transactions are
involved, it is not clear from this record whether a web-based transaction even occurred here.
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Mr. Lind has made no motion to conduct jurisdictional discovery to supplement his
response as to TLO’s motion to dismiss. Based on the record before it, the Court finds that Mr.
Lind has failed to show by a preponderance of the evidence that the Court would have specific or
general jurisdiction over TLO.
If a showing were made on the number of contacts, asserting jurisdiction over TLO might
not violate due process. First, Arkansas has a significant interest in giving Mr. Lind a forum in
which to litigate his claims. While it might be a burden for TLO to travel to Arkansas, given the
nature of this litigation, it may not be overly burdensome. Mr. Lind and separate defendant
Allen & Withrow both are located in Arkansas, and it seems to promote judicial economy to
have all claims heard in one action. Therefore, as the record stands, the exercise of jurisdiction
does not offend “notions of fair play and substantial justice.” However, it is possible that other
facts might come to light which would require a different result, if jurisdictional discovery is
pursued and the results of that discovery are submitted to this Court for consideration.
For these reasons, TLO’s motion to dismiss for lack of personal jurisdiction is granted
(Dkt. No. 9).

Mr. Lind’s claims against separate defendant TLO are dismissed without

prejudice.
IT IS SO ORDERED this 1st day of March, 2013.

______________________________
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE

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