Kent v. Reeves
Filing
10
MEMORANDUM AND ORDER granting 5 Motion to Dismiss for Lack of Jurisdiction. See Order for details. Signed by District Judge Monti L. Belot on 2/28/2013. (alm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
RONNIE KENT,
Plaintiff,
v.
ROBERT REEVES,
Defendant.
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CIVIL ACTION
No.
12-1433
MEMORANDUM AND ORDER
This case comes before the court on defendant’s motion to
dismiss for lack of personal jurisdiction.
(Doc. 5).
been fully briefed and is ripe for decision.
The motion has
(Doc. 9).
Defendant’s
motion is granted for the reasons herein.
I.
Facts
Plaintiff is a resident of Norton County, Kansas.
a resident of Texas.
Defendant is
Defendant, allegedly operating as C & R
Refrigeration, Inc., advertises refrigeration products on a website
and in a national trading magazine.
Plaintiff initially contacted
defendant by phone to inquire about “software” of an undescribed
nature.
Defendant avers that neither he nor his agents traveled to
Kansas at any time.
Plaintiff contracted by phone with defendant at
defendant’s place of business in Texas to purchase software for
plaintiff’s business.
Plaintiff paid $82,812.28 to defendant.
Plaintiff filed a petition in the District Court of Norton
County alleging a breach of contract and violations of the Kansas
Consumer Protection Act. Defendant removed the case to this court and
now moves to dismiss the petition on the basis that this court lacks
personal jurisdiction.
II.
Analysis
The court has discretion to consider affidavits on a motion to
dismiss for lack of personal jurisdiction under Fed. R. Civ. P.
12(b)(2). See Behagen v. Amateur Basketball Ass’n of U.S.A., 744 F.2d
731, 733 (10th Cir. 1984). If defendant challenges the jurisdictional
allegations, plaintiff must support the jurisdictional allegations by
competent proof of the supporting facts. Pytlik v. Prof'l Res., Ltd.,
887 F.2d 1371, 1376 (10th Cir. 1989). All factual disputes, however,
See id.
are resolved in plaintiff's favor.
Further, the allegations
in the complaint must be taken as true to the extent that they are
uncontroverted by defendants' affidavits. Intercon, Inc. v. Bell Atl.
Internet Solutions, Inc., 205 F.3d 1244, 1247 (10th Cir. 2000) (only
well-pled
facts,
as
distinguished
from
conclusory
allegations,
accepted as true).
In this case, plaintiff alleged in his petition that defendant,
through his agents, met with plaintiff in Norton County, Kansas, and
that the product was delivered by defendant to Kansas.
Defendant,
however, controverts that meeting in his affidavit. Plaintiff, in his
response, has not attempted to refute defendant’s statements in his
affidavit.
Rather,
plaintiff
argues
that
defendant’s
national
advertising and website constitute sufficient contacts to submit
defendant
to
the
jurisdiction
of
Kansas
courts.
Therefore,
defendant’s contacts with Kansas consist of calls to defendant by
plaintiff, national advertising in a magazine and an internet website.
The Court applies a two-part test to analyze Rule 12(b)(2)
motions
to
dismiss
for
lack
of
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personal
jurisdiction
over
a
nonresident defendant.
First, defendant's conduct must fall within
a provision of the Kansas long-arm statute, K.S.A. 60-308.
Kansas
courts construe the long-arm statute liberally to assert personal
jurisdiction over nonresident defendants to the full extent permitted
by the limitations of due process.
Volt Delta Res. Inc. v. Devine,
241 Kan. 775, 777, 740 P.2d 1089, 1092 (1987).
Second, defendants
must have sufficient minimum contacts with Kansas to satisfy the
constitutional guarantee of due process.
See Equifax Servs., Inc. v.
Hitz, 905 F.2d 1355, 1357 (10th Cir. 1990).
Because the Kansas long-
arm statute is construed liberally so as to allow jurisdiction to the
full extent permitted by due process, the court will proceed directly
to the constitutional question.
For the court's exercise of jurisdiction to comport with due
process, defendant must have “minimum contacts” with the State of
Kansas, “such that having to defend a lawsuit there would not ‘offend
traditional notions of fair play and substantial justice.’”
Dudnikov
v. Chalk & Vermillion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir.
2008).
“Minimum contacts” can be established in one of two ways,
either
generally
or
specifically
for
lawsuits
based
on
the
forum-related activities:
General jurisdiction is based on an out-of-state
defendant's “continuous and systematic” contacts with the
forum state, and does not require that the claim be related
to those contacts. Specific jurisdiction, on the other
hand, is premised on something of a quid pro quo: in
exchange for “benefitting” from some purposive conduct
directed at the forum state, a party is deemed to consent
to the exercise of jurisdiction for claims related to those
contacts.
Id.
The court will discuss both general and specific jurisdiction as
plaintiff has not identified which jurisdiction is applicable in this
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case.
General Jurisdiction
General jurisdiction exists over a nonresident defendant whose
contacts with the state are “continuous and systematic.” Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984).
To
find general jurisdiction exists in this case, a nonresident defendant
“must have a substantial amount of contacts with the forum state.”
Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1533
(10th Cir. 1996). In determining whether a defendant has substantial
contacts with the forum state, the court considers the following four
factors: (1) whether defendant solicits business in the state through
local office or agents; (2) whether defendant sends agents into the
state on a regular basis to solicit business; (3) the extent to which
defendant holds himself out as doing business in the forum state,
through advertisements, listings or bank accounts; and (4) the volume
of business conducted in the state by defendant.
Id.
Defendant first avers that he does not solicit business in
Kansas, and supports this assertion with an affidavit.
Similarly,
defendant avers that he does not travel to Kansas on a regular basis
to solicit business.
Defendant also supports this assertion with an
affidavit. Plaintiff has not contradicted or produced affidavits that
directly address these points. Therefore, the first two factors weigh
in favor of defendant.
Regarding the third Trierweiler factor, plaintiff contends that
defendant holds himself out as doing business in Kansas through his
Internet website and magazine advertisement. In Shrader v. Biddinger,
633 F.3d 1235 (10th Cir. 2011), the Tenth Circuit held that in order
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to find that a defendant’s website activities support the exercise of
personal jurisdiction, the court must determine that the Internet user
or the website “intentionally directed activity or operation at the
forum
state
rather
than
just
accessible there.” Id. at 1240.
having
the
activity
or
operation
The Circuit explained that a website
may subject the operator to general jurisdiction “only when the
defendant has actually and deliberately used its website to conduct
commercial transactions on a sustained basis with a substantial number
of residents of the forum.”
Id.
Defendant’s website does not support a finding that defendant has
directed his activity towards Kansas.
Rather, it merely lists items
available for sale and informs the user of the nature of the company’s
business.
The court finds that the website alone does not support a
finding of general jurisdiction.
Id.
In addition, plaintiff points
to a single advertisement in a national magazine as support for
general jurisdiction.
The Tenth Circuit has repeatedly held that
advertizing in nationally distributed magazines does not support
general jurisdiction. Id. at 1244. Therefore, the third factor weighs
in favor of defendant.
With
respect
to
the
final
factor,
the
volume
of
business
defendant conducts in Kansas, defendant stated in his affidavit that
he has no business in Kansas and does not regularly conduct business
in Kansas.
Plaintiff has not offered any evidence as to the volume
of business defendant has in Kansas. The final factor weighs in favor
of defendant.
Weighing the four Trierweiler factors, the court finds that
plaintiff has not met his burden of establishing a prima face case
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that defendant has continuous and systematic contacts with Kansas that
justify the exercise of general personal jurisdiction. The court
proceeds to consider whether specific personal jurisdiction is present
in this case.
Specific Jurisdiction
Specific jurisdiction exists over a nonresident defendant if he
has “‘purposefully directed’ his activities at residents of the forum,
and the litigation results from alleged injuries that ‘arise out of
or relate to’ those activities.”
OMI Holdings, Inc. v. Royal Ins.
Co., 149 F.3d 1086, 1091 (10th Cir. 1998) (quoting Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 472 (1985)).
In a contract action, the
Tenth Circuit has stated that the court must ask “whether the
defendant ‘purposefully availed’ itself of the privilege of conducting
activities or consummating a transaction in the forum state.”
Id.
The only activities alleged by plaintiff to satisfy specific
jurisdiction are the phone call by plaintiff to defendant and the
delivery of the product.
Generally, phone calls, letters, or emails
are
establish
not
sufficient
to
personal
jurisdiction
over
a
defendant.
Far W. Capital, Inc. v. Towne, 46 F.3d 1071, 1077 (10th
Cir. 1995).
In this case, plaintiff called defendant and purchased
a product.
Defendant has not “purposefully availed” himself of the
privilege of conducting business in Kansas as a result of plaintiff’s
phone call.
In addition, plaintiff asserts that the product was delivered to
Kansas and “set up in Kansas.” (Doc. 9 at 2). However, defendant has
filed an affidavit stating that he and his agents have not traveled
to Kansas to do business with plaintiff.
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Plaintiff cannot controvert
this affidavit by making an argument in a brief.
Therefore, the fact
that a product was delivered to the state of Kansas cannot support a
finding that defendant purposely directed his activities toward Kansas
residents.
The court finds that plaintiff has not met his burden of
establishing that defendant has purposely directed his activities at
residents of Kansas that justify the exercise of specific personal
jurisdiction.
III. Conclusion
Defendant’s motion to dismiss (Doc. 5) is granted.
A motion for reconsideration of this order is not encouraged.
Any such motion shall not exceed 3 double-spaced pages and shall
strictly comply with the standards enunciated by this court in Comeau
v. Rupp, 810 F. Supp. 1172, 1174 (1992).
The response to any motion
for reconsideration shall not exceed 3 double-spaced pages.
No reply
shall be filed.
IT IS SO ORDERED.
Dated this
28th
day of February 2013, at Wichita, Kansas.
s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDG
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