Hutton & Hutton Law Firm, L.L.C. v. Girardi & Keese et al
Filing
14
MEMORANDUM AND ORDER granting in part and denying in part #5 Motion to Dismiss for Lack of Jurisdiction. The court shall dismiss defendant Thomas V. Girardi for lack of personal jurisdiction. The remainder of the motion shall be denied. Signed by District Judge Richard D. Rogers on 1/6/2014. (meh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
HUTTON & HUTTON LAW FIRM, L.L.C.,
)
)
Plaintiff,
)
)
v.
)
)
GIRARDI & KEESE; THOMAS V. GIRARDI )
)
Defendants.
)
Case No.13-1115-RDR
MEMORANDUM AND ORDER
In this case, a Kansas law firm, Hutton & Hutton Law Firm,
L.L.C.
(the
Hutton
firm),
has
sued
a
California
law
firm,
Girardi & Keese (G & K), and one of its attorneys, Thomas V.
Girardi,
seeking
attorneys=
fees.
This
matter
is
presently
before the court upon defendants= motion to dismiss for lack of
personal
jurisdiction.
In
the
alternative,
defendants
have
asked the court to transfer this case pursuant to 28 U.S.C. §
1404(a)and 28 U.S.C. § 1631 to the United States District Court
for Central District of California.
Having carefully reviewed
the arguments of the parties, the court is now prepared to rule.
This action was originally filed in Kansas state court.
It
was removed to this court based upon diversity jurisdiction on
March 22, 2013.
The complaint contains four counts.
In the
first two counts, the Hutton firm asserts claims of breach of
1
contract and conversion against the defendants arising from the
settlement of Celebrex/Bextra cases.
In the next two counts,
the
breach
Hutton
firm
asserts
claims
of
of
contract
and
conversion against the defendants arising from the settlement of
Zimmer Durom Cup litigation.
In each instance, the Hutton firm
had clients with claims based upon the use of Celebrex/Bextra
and the use of the Zimmer Durom Cup.
The Hutton firm contends
that it entered into an agreement with G & K to refer its cases
to G & K for settlement.
I.
The complaint and the record before the court, when viewed
in the light most favorable to the plaintiff, show the following
facts. The Hutton firm is located in Wichita, Kansas.
G & K is
a California law firm that Arepresents clients in California and
nationwide
in
cases
involving
personal
injury,
medical
malpractice, wrongful death, product defects, employment law,
aviation law and others.@
(G & K Website Homepage).
Girardi is
a founding and managing partner of G & K.
G & K has no offices or employees in Kansas.
property in Kansas.
Kansas.
It owns no
It has no registered agent for service in
Girardi lives in Pasadena, California.
lived or owned property in Kansas.
He has never
He has never traveled to
Kansas for any reason that is related to the Celebrex/Bextra
2
litigation or the Zimmer Durom Cup litigation.
The
Hutton
firm
represented
various
individuals
with
product liability claims against Pfizer, Inc. arising out of the
manufacture
of
the
prescription
drugs
Celebrex
and
Bextra.
These clients claimed they had suffered personal injuries from
the ingestion of Celebrex and Bextra.
The Hutton firm filed
suit on behalf of the clients against Pfizer.
clients were Kansas residents.
Fifteen of those
During the same time period,
many claims and lawsuits were asserted against Pfizer across the
nation, resulting in a multi-district litigation proceeding in
the United States District Court for the Northern District of
California known as In re Bextra and Celebrex Marketing Sales
Practice
and
Product
Liability
Litigation,
MDL
No.
05-1699.
Hutton=s suits were either directly filed in, or transferred to,
that court.
In 2008 and 2009, G & K directed and spearheaded an effort
to unite the firms representing claimants in the Celebrex/Bextra
litigation in order to negotiate an aggregate settlement for all
claimants.
Anne Andrews, an attorney with the California law
firm of Andrews & Thornton, contacted the Hutton firm in Wichita
and
requested
that
the
Hutton
firm
refer
all
of
Celebrex/Bextra cases to G & K and Andrews & Thornton.
purpose
of
the
referral
was
to
3
allow
G
&
K
to
its
The
negotiate
settlements
for
the
Hutton
Celebrex litigation.
Mark
Hutton
firm=s
clients
in
the
Bextra
and
On May 29, 2009, Girardi sent a letter to
soliciting
the
Celebrex/Bextra
cases.
The
letter
stated:
Dear Mark:
Can you send me a list of your cases so I can get a
first-cut look? More importantly, I look forward to a long
and great relationship.
The Hutton firm agreed to refer its cases to G & K.
The
firms agreed to split the fees in the following manner if a
settlement was reached: 80% to the Hutton firm, 10% to Andrews &
Thornton, and 10% to G & K.
Thereafter, the Hutton firm prepared Avoluminous information
and records@ for its clients= cases at its office in Kansas.
In
October 2009, G & K entered into a confidential settlement with
Pfizer, which resolved all of the Hutton firm=s clients= cases.
In
order
to
disburse
the
clients=
share
of
the
settlement
proceeds, G & K, with one exception, made payment from its trust
account
and
sent
the
clients=
checks
to
the
Hutton
firm
in
Kansas, and the Hutton firm forwarded individual checks to the
clients.
Girardi sent Mark Hutton a letter on March 7, 2011
confirming
the
fee
arrangement:
AWe
will
live
up
to
the
agreement.@
G & K has remitted four checks to the Hutton firm in
Kansas
partial
as
payment
under
4
the
parties=s
fee-sharing
agreement.
The Hutton firm contends in this case that G & K has
not paid the total amount due under the agreement.
Similar facts are present concerning the Zimmer Durom Cup
litigation.
In November 2008, Scott Cox, a Kansas resident,
retained the Hutton firm to represent him in connection with a
products liability claims arising from the implantation of the
Zimmer Durom Cup, manufactured by Zimmer, Inc.
or
early
summer
2009,
Girardi
informed
Mark
In late spring
Hutton
during
several telephone conversations that his firm was representing
several clients with claims against Zimmer and told him that his
firm could procure larger settlements for the clients.
Girardi
solicited the Hutton firm to refer its case to G & K.
Shortly
thereafter, G & K and the Hutton firm agreed to refer the case
to G & K in an attempt to obtain a settlement of Cox=s case.
They agreed that Hutton would receive two-thirds of the net
attorneys= fees and G & K would receive one-third.
The Hutton
firm assembled information and records and sent them to G & K.
In December 2011, Cox entered into a confidential settlement
agreement with Zimmer.
On or about March 19, 2012, Cox received
a check from G & K as partial payment for his settlement. The
Hutton firm asserts that it has not received any amount of the
attorneys= fees owed to them by G & K for this litigation.
During the same period in late spring and early summer
5
2009, G & K also solicited products liability cases from the
Hutton firm involving claims against the manufacturer Avandia.
The Hutton firm agreed to refer its Avandia cases to G & K, of
which 19 involved Kansas residents.
Again, the Hutton firm
performed substantial work on the Avandia cases by assembling
information to be sent to G & K.
From 2009 to the present, the Hutton firm has received 77
letters, e-mails and faxes from Girardi and/or G & K regarding
the Celebrex/Bextra, Zimmer and Avandia litigation.
of
these
communications
Zimmer litigation.
related
to
the
originated
to
the
Celebrex/Bextra
and
The remaining 12 letters, e-mails and faxes
Avandia
from
related
Sixty-five
the
cases.
lead
Most
of
those
day-to-day
communications
attorneys
on
the
Celebrex/Bextra cases, either Andre Sherman or David Bigelow.
II.
The standard that governs a motion to dismiss for lack of
personal
jurisdiction
established.
The
under
plaintiff
Fed.R.Civ.P.
bears
the
12(b)(2)
burden
personal jurisdiction over the defendant.
of
is
well
establishing
Edison Trust Number
One v. Pattillo, 2010 WL 5093831 at *1 (D.Kan. Dec. 8, 2010).
The extent of the burden depends on the stage at which the court
considers
the
jurisdictional
issue.
Id.
When
personal
jurisdiction Ais decided at a preliminary stage by reference to
6
only the complaint and affidavits, the plaintiff need only make
a prima facie showing of personal jurisdiction.@
Id.
AThe plaintiff may carry this burden >by demonstrating, via
affidavit or other written materials, facts that if true would
support
jurisdiction
over
the
defendant.=@
Id.
(quoting
TH
Agric. & Nutrition, L.L.C. v. Ace European Grp. Ltd., 488 F.3d
1282, 1286 (10th Cir. 2007)).
In determining if it has personal
jurisdiction over a defendant, the court may consider affidavits
and
other
documentary
evidence
submitted
Agric. & Nutrition, 488 F.3d at 1286.
in the
the
parties.
TH
To the extent allegations
complaint are uncontroverted, the court must accept
those allegations.
(10th
by
Cir.
1995).
Wenz v. Memery Crystal, 55 F.3d 1503, 1505
If
the
jurisdictional
allegations
are
challenged, however, the plaintiff has a duty to support its
jurisdictional
facts.
allegations
by
competent
proof
of
supporting
Payless Shoesource, Inc. v. Shops at Hancock, LLC, 2012
WL 1344977 at * 1 (D.Kan. Apr. 18, 2012)(citing Pytlik v. Prof=l
Res., Ltd., 887 F.2d 1371, 1376 (10th
Cir. 1989)).
Factual
disputes are resolved in plaintiff=s favor. Id.
In a federal diversity case, the law of the forum state
determines the court=s jurisdiction over defendants. Fed.R.Civ.P.
4(e); Marcus Food Co. v. DiPanfilo, 671 F.3d 1159, 1166 (10th
Cir. 2011).
To establish jurisdiction, plaintiffs must show two
7
things: first, that the Kansas long-arm statute contemplates the
exercise of jurisdiction, and second, that jurisdiction comports
with the due process requirements of the Fourteenth Amendment.
Marcus Food Co., 671 F.3d at 1166. The Kansas long-arm statute
is construed liberally to allow jurisdiction to the full extent
permitted by due process, which means that the court need not
conduct
a
analysis.
statutory
analysis
apart
from
the
due
process
Id.; Emp=rs Mut. Cas. Co. v. Bartile Roofs, Inc., 618
F.3d 1153, 1159 (10th
Cir. 2010).
The due process analysis consists of two steps: (1) whether
the defendant has such minimum contacts with the forum state
that
it
should
reasonably
anticipate
being
haled
into
court
there; and (2) if the defendant has minimum contacts with the
forum state, whether exercising personal jurisdiction over them
would offend traditional notions of fair play and substantial
justice. AST Sports Sci., Inc. v. CLF Distribution Ltd., 514
F.3d 1054, 1061 (10th Cir. 2008).
Minimum
contacts
can
be
established
jurisdiction or specific jurisdiction.
by
either
general
The Hutton firm has
suggested that personal jurisdiction over the defendants can be
established
under
both
general
jurisdiction.
8
jurisdiction
and
specific
A.
General
jurisdiction
arises
when
a
defendant=s
continuous
corporate operations within a state are so substantial and of
such a nature as to justify suit against defendant on causes of
action
arising
activities.
Brown,
131
from
See
S.Ct.
dealings
Goodyear
2846,
entirely
Dunlop
2854
distinct
Tires
(2011).
from
Operations,
General
those
S.A.
v.
jurisdiction
requires that the defendant have contacts with the forum Aso
continuous and systematic as to render [it] essentially at home
in the forum state.@
Fireman=s Fund Ins. Co. v. Thyssen Min.
Const. Of Canada, Ltd., 703 F.3d 488, 493(10th Cir. 2012)(quoting
Goodyear Dunlop, 131 S.Ct. at 2851); Shrader v. Biddinger, 633
F.3d 1235, 1243(10th Cir. 2011)(Acommercial contacts here must be
of
a
sort
(quotations
that
approximate
omitted)).
physical
AThe
Supreme
presence
Court
in
has
[general jurisdiction] as being a high threshold.@
the
state@
established
Trierweiler
v. Croxton and Trench Holding Corp., 90 F.3d 1523, 1543 (10th
Cir. 1996)(citing Helicopteros Nacionales de Colombia, S.A. v.
Hall, 466 U.S. 408, 415-17 (1984)).
However, the Supreme Court
has
to
not
outlined
a
specific
test
follow
in
determining
whether a defendant=s activities in the forum state reach the
level of Acontinuous and systematic.@
to
the
facts
of
each
case
in
9
making
Rather, the Court looks
such
a
determination.
Recently, in Monge v. RG Petro-Machinery (Group) Co. Ltd., 701
F.3d 598, 614-615 (10th Cir. 2012), the Tenth Circuit, summarized
several cases where general jurisdiction was found lacking:
For example, in Helicopteros, a Colombian company
had spent more than $4 million to purchase 80 percent
of its helicopters, spare parts, and accessories from
Texas sources from 1970B77. 466 U.S. at 411, 418, 104
S.Ct.
1868.
The
company
had
sent
its
pilots,
management, and maintenance personnel to be trained in
Texas during the same period. Id. The Supreme Court
concluded that the Texas courts lacked general
jurisdiction over the company despite these numerous
contacts with Texas. Id. In Benton [v. Cameco Corp.,
375 F.2d 1070(10th Cir. 2004)], we concluded that Atwo
dozen transactions taking place over a period of eight
years ... is not sufficient to meet the high burden of
demonstrating ... >continuous and systematic general
*615 business contacts.=@
375 F.3d at 1080.
And in
Shrader, we said that Aengaging in commerce with
residents of the forum state is not in and of itself
the kind of activity that approximates physical
presence within the state's borders.@ 633 F.3d at 1243
(quotations omitted).
The Tenth Circuit has established four factors to consider
in deciding whether general jurisdiction has been established:
(1) whether the corporation solicits business in the
state through a local office or agents; (2) whether
the corporation sends agents into the state on a
regular basis to solicit business; (3) the extent to
which the corporation holds itself 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 the corporation.
Kuenzle v. HTM SportBUnd Freizeitgeräte AG, 102 F.3d 453, 457
(10th
Cir. 1996)(quoting Trierweiler, 90 F.3d at 1533)(internal
quotation marks omitted); see Doering v. Copper Mountain, Inc.,
10
259 F.3d 1202, 1210 (10th Cir. 2001).
The court notes that the Hutton firm has made what can only
be described as a half-hearted effort at demonstrating that this
court has general jurisdiction over the defendants.
In support
of this contention, the Hutton firm points to the following: (1)
the agreements and contacts made by G & K and Girardi with them
concerning the litigation that led to the filing of this case,
i.e., the Celebrex/Bextra cases and Durom Cup litigation; (2)
the agreement and contacts made by G & K and Girardi with them
concerning the Avandia litigation; (3) the representation by G &
K and Girardi of the plaintiffs in In re Motor Fuel Temperature
Sales Practice Litigation, MDL No. 07-1840 (D.Kan.) from 2007 to
the present including at least one appearance in Kansas; (4) the
representation
by
G
&
Pharmaceuticals
Corp.,
statements
their
on
K
and
No.
Girardi
12-3459
website
that
in
Burnett
(D.Kan.);
they
v.
(5)
represent
Novartis
G
&
K=s
clients
Anationwide@ and in their magazine where they indicate that they
have represented clients in Kansas; and (6) G & K=s advertisement
in Time magazine in December 2012 soliciting business in Kansas
and elsewhere.
The defendants have challenged some of the evidence used by
the Hutton firm in support of its arguments for the assertion of
general
jurisdiction
over
them.
11
They
note
that
in
Hutton=s
affidavit in support of the motion certain statements are made
Aupon information and belief.@
These statements include: (1)
the defendants sent a letter to a number of clients in Kansas in
the
Clecbrex/Bextra,
Durom
Cup
and
Avandia
cases;
and
(2)
Girardi appeared personally in the District of Kansas as cocounsel for the plaintiffs in the In re Motor Fuel Temperature
Sales
Practice
Litigation.
The
defendants
argue
that
these
matters cannot be considered because affidavits must be made on
personal knowledge, and not Aupon information and belief.@
The
defendants further argue that the evidence offered by the Hutton
law firm simply fails to demonstrate that they had a continuous
and systematic presence in Kansas.
The court finds it unnecessary to determine whether the
evidence offered by the Hutton law firm in Hutton=s affidavit
Aupon information and belief@ can be considered in determining a
motion to dismiss under Rule 12(b)(2). The court notes that
neither side has provided any case law on this issue.
Some
courts have determined that such matters cannot be considered.
See United Tech. Corp. v. Mazer, 556 F.3d 1260, 1277 (11th
Cir.
2009)(finding that when a court is determining a Rule (12)(b)(2)
motion
portions
to
of
declarations
dismiss
the
that
it
[affidavit]
within
the
should
that
set
affiant's
12
Aconsider[
forth
]
>only
specific
personal
those
factual
knowledge.=@);
Plaskolite, Inc. v. Zhejiang Taizhou Eagle Mach. Co., Ltd., 2008
WL 5190049, at *5 (S.D.Ohio Dec. 9, 2008)(addressing a Rule
12(b)(2) motion to dismiss and refusing to consider portions of
an affidavit based upon the belief of the affiant); Doe I v. Al
Maktoum, 2008 WL 4965169, at *5 (E.D.Ky. Nov. 18, 2008)(finding
an affidavit based upon news stories and web sites was not based
upon personal knowledge and was insufficient to defeat a motion
to dismiss under Rule 12(b)(2)). Other courts, however, have
found that such statements can be considered, even though the
weight given to them may be limited.
Vapores
Realma,
1981)(affidavits
S.P.,
based
521
See Raskin v. Compania de
upon
F.Supp.
337,
information
and
339
belief
(S.D.N.Y.
may
be
considered by court on issue of personal jurisdiction but may
not be entitled to as much weight as contradictory affidavit
based on personal knowledge); see also Tingley Systems, Inc. v.
Bay State HMO Management, Inc., 833 F.Supp. 882, 884 (M.D.Fla.
1993)(court can consider affidavit based upon information and
belief
in
governing
considering
transfer
motion
motions
for
does
transfer
not
because
expressly
statute
require
that
affiant have personal knowledge).
The court is convinced that it makes no difference here.
In viewing the totality of the contacts between defendants and
the
state
of
Kansas,
the
court
13
find
that
continuous
and
systematic contacts do not exist.
defendants=
Supreme
contacts
Court
with
deemed
Kansas
The court notes that the
fall
short
to
insufficient
far
of
what
constitute
the
general
jurisdiction in Helicopteros or what the Tenth Circuit deemed
inadequate in Benton and Shrader.
The facts do not suggest that
the defendants have a regular presence in Kansas.
noted
by
the
Tenth
Circuit
certainly
are
not
The factors
present
here.
There is no evidence that the defendants have a local office or
agents in Kansas.
There is also no evidence that the defendants
come to Kansas Aon a regular basis@ to solicit business.
In
fact, there is no evidence that the defendants have ever come to
Kansas for that purpose.
the
defendants
Kansas.
Kansas
have
While
clients,
directed
the
Kansas
is
they
not
any
defendants
business in Kansas.@
in
In addition, there is no evidence that
do
not
advertising
have
hold
specifically
occasionally
themselves
at
represented
out
as
Adoing
Finally, the volume of business conducted
substantial.
Again,
the
defendants
have
represented some clients from Kansas, but the number of cases
appears relatively small.
The Hutton firm has fallen far short
of satisfying the difficult threshold of general jurisdiction.
B.
The
court
jurisdiction.
shall
now
turn
to
the
issue
of
specific
The inquiry on specific jurisdiction is two-fold.
14
First, the court must determine whether the defendant has such
minimum contacts with the forum state Athat he should reasonably
anticipate being haled into court there.@
v. Woodson, 444 U.S. 280, 297 (1980).
court
must
determine
(1)
whether
the
WorldBWide Volkswagen
Within this inquiry the
defendant
purposefully
directed its activities at residents of the forum, Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985); and (2) whether
the plaintiff=s claim arises out of or results from Aactions by
the defendant himself that create a substantial connection with
the forum state,@
Asahi Metal Industry Co., Ltd. v. Superior
Court of California, 480 U.S. 102, 109 (1987).
Second, if the
defendant=s actions create sufficient minimum contacts, we must
then consider whether the exercise of personal jurisdiction over
the
defendant
offends
Atraditional
substantial justice.@ Id. at 113.
notions
of
fair
play
and
This latter inquiry requires a
determination of whether a district court=s exercise of personal
jurisdiction
over
a
defendant
with
minimum
contacts
is
Areasonable@ in light of the circumstances surrounding the case.
Id.
The Hutton firm suggests that the defendants have purposely
directed activities regarding this case toward Kansas and Kansas
residents by doing the following: (1) soliciting business from
them by telephone and mail in the Celebrex/Bextra and Durom Cup
15
litigation; (2) maintaining a continuous relationship with them
through letters, e-mails and faxes; (3) allowing them to perform
substantial work on the Celebrx/Bextra and Durom Cup litigation
in Kansas; (4) communicating with their Kansas clients; and (5)
sending
checks
to
the
Hutton
firm
for
distribution
to
the
clients in the underlying litigation cases and sending checks to
the Hutton firm for partial payment of the fee agreements.
The
Hutton firm further contends that its claims in this case arise
out of the contacts by the defendants with Kansas.
The defendants contend that the case against each of them
must be considered separately.
firm
has
failed
to
They contend that the Hutton
demonstrate
that
either
of
them
had
sufficient contacts with Kansas to justify the imposition of
personal jurisdiction over either one of them.
upon
Biederman
F.Supp. 1057
v.
Schnader,
Harrison,
Siegal
Relying heavily
&
Lewis,
765
(D.Kan. 1991), they contend the contacts noted by
the Hutton law firm do not support personal jurisdiction over
them.
They
purposely
argue
availed
that
the
themselves
activities in Kansas.
evidence
of
the
is
lacking
privilege
of
that
they
conducting
They note initially that neither G & K
nor Girardi ever visited Kansas as a result of their contacts
with the Hutton firm.
They further note that an attorney from
another firm actually solicited the Hutton firm to transfer the
16
Celebrex/Bextra cases to G & K.
They also point out that the
record only shows a few phone calls, e-mails
& K to the Hutton firm.
and letters from G
They further note that there was no
agreement between the parties that payments had to be delivered
to
Kansas.
In
addition,
defendant
Girardi
argues
evidence against him is Aparticularly weak.@
that
the
He argues that
there is no assertion that he was a party to the alleged oral
agreements.
After a thorough review of the evidence and case law, the
court is persuaded that the Hutton firm has made a prima facie
showing that G & K has minimum contacts with Kansas to support
the exercise of personal jurisdiction as long as such judicial
review does not offend the traditional notions of fair play and
substantial justice.
The court, however, does not find that the
Hutton firm has made a prima facie showing that Girardi had the
requisite minimum contacts with Kansas.
In
reaching
these
conclusions,
the
court
notes
G
&
K
entered into an agreement with the Hutton firm to pay certain
attorneys= fees if the Celebrex/Bextra cases and Durom Cup case
were referred to it and a settlement was reached.
The court
finds that the Hutton firm=s claims arose from G & K=s contacts
with Kansas.
The claims were asserted when G & K failed to pay
the attorneys= fees that had been earlier allegedly promised.
17
Thus, the court finds that one prong of the minimum contacts
test is satisfied because the contacts that exist between the
Hutton firm and G & K provide the basis for this lawsuit.
See
Paul, Hastings, Janofsky & Walker, LLP v. City of Tulsa, Okla.,
245 F.Supp.2d 1248, 1256 (N.D.Ga. 2002).
In applying the other prong of the minimum contacts test,
the court must determine whether G & K purposefully availed
itself of the privilege of conducting activities within Kansas,
such that it could reasonably anticipate being haled into a
Kansas court.
another
law
G & K has suggested that another attorney from
firm
initiated
the
solicitation
with
the
Hutton
firm. There is no dispute about that, but there is also no
dispute that G & K quickly followed up with its own solicitation
of the Hutton cases.
G & K was aware that they were dealing
with a Kansas law firm.
They were further quickly aware that
the cases to be referred involved a number of Kansas residents.
The
court
solicited
is
confident
business
from
that
the
the
Hutton
record
shows
firm.
Such
that
G
contact
&
K
was
unsolicited by the Hutton firm and, like the defendant in Burger
King, G & K deliberately Areach[ed] out beyond one state and
create[d] continuing relationships and obligations with citizens
of
another
state.@
Burger
King,
471
U.S.
at
473.
The
solicitation of the Hutton firm by G & K is a significant factor
18
in determining minimum contacts with the state of Kansas.
The court recognizes that G & K did not travel to Kansas
during any of period relevant to the Celebrex/Bextra and Durom
Cup litigation.
present
in
However, a defendant need not be physically
the
jurisdiction.
forum
state
to
be
subject
to
personal
AST Sports Sci., 514 F.3d at 1059. Rather, the
court will look carefully at other evidence, including telephone
or electronic communication, to establish personal jurisdiction
when a defendant has not been physically present in the forum
state because it serves as evidence that the defendant reached
into the forum.
Id.
During the course of this relationship, G
& K made phone calls to Kansas, and sent e-mails, letters and
faxes to Kansas.
letters
are
not
AIt is well established that phone calls and
necessarily
establish minimum contacts.@
F.3d
1071,
1077
(10th
sufficient
in
themselves
to
Far West Capital, Inc. v. Towne, 46
Cir.
1995).
However,
A[i]n
proper
circumstances, even a single letter or telephone call to the
forum state may meet due process standards.@ Rambo v. Am. S.
Ins., Co., 839 F.2d 1415, 1418 (10th Cir. 1988). A[T]he exercise
of jurisdiction depends on the nature of those contacts.@
Id.
(emphasis in original). APurposeful availment analysis turns upon
whether
the
defendant=s
contacts
are
attributable
to
his
own
actions or solely to the actions of the plaintiff. . . . [and
19
generally] requires . . . affirmative conduct by the defendant
which allows or promotes the transaction of business within the
forum state.@
Id. at 1420 (citation omitted).
AThis >purposeful
availment= requirement ensures that a defendant will not be haled
into a jurisdiction solely as a result of >random,= >fortuitous,'
or
>attenuated=
contacts.@
Burger
King,
471
U.S.
at
475
(citations omitted).
The court is persuaded that the communications between the
Hutton firm and G & K show purposeful availment by G & K.
nature
as
well
as
the
number
of
transmissions
shows
The
that
a
continuous relationship with the Hutton firm existed after the
initial agreements.
In addition, G & K made payments to Kansas, both for the
clients and for the Hutton firm.
Paying funds into a forum
state has been considered a relevant contact for the purposes of
personal jurisdiction.
Benton, 375 F.3d at 1076-77; see also
Continental American Corp. v. Camera Controls Corp., 692 F.2d
1309, 1312 (10th Cir. 1982); Federal Deposit Ins. Corp. v.
Culver, 640 F.Supp. 725, 727 (D.Kan. 1986).
The court is not
persuaded by G & K=s argument that this factor should not be
given any weight because the parties did not have an agreement
that the payments had to be delivered to Kansas.
Although there
was no agreement on where the funds were to be delivered, there
20
was certainly an implicit agreement that the payments would be
made to Kansas.
And, the subsequent events support that
suggestion since G & K did in fact send the payments to Kansas.
The court does not believe that Biederman, the case relied
upon by G & K, commands a different result.
distinguishing facts in Biederman.
There are several
There, plaintiffs initially
contacted the defendant law firm in Pennsylvania and sought
their representation in a Pennsylvania case.
Later, Biederman
traveled to Pennsylvania and sought the defendant law firm=s
representation in a North Carolina case.
All of the contract
negotiations concerning fees took place in Philadelphia.
The
defendant handled the North Carolina case with most of the work
being performed in Philadelphia and North Carolina.
The
defendant law firm, however, did made three visits to Kansas to
handle certain aspects of the case.
Subsequently, plaintiffs
filed an action in Kansas seeking a declaratory judgment that
the defendant law firm had been paid for the legal services
rendered in the North Carolina litigation. Judge O=Connor
determined that the Kansas federal court did not have personal
jurisdiction over the Pennsylvania law firm in the fee dispute.
In reaching this conclusion, Judge O=Connor focused on the fact
that plaintiffs= claims did not arise from the defendant=s Kansasrelated activities.
Biederman, 765 F.Supp. 2 1061.
21
He relied
upon Austad Co. v. Pennie & Edmonds, 823 F.2d 223 (8th Cir. 1987)
and determined that Adefendant=s brief visits to Kansas during
discovery, phone calls and letters to Kansas, and checks
received by defendant from a Kansas plaintiff are not sufficient
contacts to support an exercise by the court of personal
jurisdiction over the defendant.@
Id.
Here, differing from Biederman, the facts are clear that G
&
K
solicited
occasions.
the
business
from
a
Kansas
resident
on
several
As noted previously, the court is not persuaded that
initial
contact
by
the
attorney
from
the
other
firm
is
significant since G & K followed immediately with requests to
the Hutton firm to transfer its cases to G & K.
This direct
solicitation of a Kansas resident significantly distinguishes
this case from Biederman, where the plaintiffs there not only
solicited a Pennsylvania law firm but traveled to Pennsylvania
to conduct the negotiations concerning the fees.
The
court
believes
that
other
cases
with
circumstances
similar to this case, including some relied upon by the Hutton
firm,
support
this
court=s
contacts with Kansas.
248
(3rd
Cir.
2001);
finding
that
G
&
K
had
minimum
See, e.g., Remick v. Manfredy, 238 F.3d
Joye
v.
Heuer,
66
F.3d
316
(4th
Cir.
1995)(table case); English & Smith v. Metzger, 901 F.2d 36 (4th
Cir. 1990); Paul, Hastings, Janofsky & Walker, LLP, v. City of
22
Tulsa,
245 F.Supp.2d 1248 (N.D.Ga. 2002); Strobehn v. Mason,
397 S.W.3d 487 (Mo.App. 2013)(table case).
The court did not reach the same conclusions concerning
Girardi.
His individual contacts with Kansas were very limited.
The only contacts noted by Hutton concerning Girardi are as
follows: (1) two letters sent to Hutton in Kansas; (2) Anumerous
telephone
conversations@
regarding
the
Zimmer
cases;
and
(3)
Girardi agreeing on the referral of the Celebrex/Bextra cases
and the Zimmer Durom Cup case.
There is no specific allegation,
however, that Girardi was a party to the alleged agreements, as
opposed to negotiating on behalf of G & K.
simply
insufficient
purposely
availed
to
support
himself
of
the
the
These contacts are
conclusion
privilege
that
of
Girardi
conducting
business in Kansas and submitted himself to the protection of
Kansas=s laws.
motion
in
part
Accordingly, the court shall grant defendants=
and
dismiss
Girardi
for
lack
of
personal
jurisdiction.
AIf the defendant has minimum contacts with the forum state,
>we must still determine whether exercising personal jurisdiction
would offend traditional notions of fair play and substantial
justice.=@
Emp=rs Mut. Cas. Co., 618 F.3d at 1161(quoting AST
Sports Sci., 514 F.3d at 1061). A[M]inimum requirements inherent
in the concept of fair play and substantial justice may defeat
23
the
reasonableness
even
if
engaged in forum activities.@
the
defendant
has
purposefully
Burger King, 471 U.S. at 477B78.
At this point in the analysis, the defendant bears the burden of
proving
other
considerations
would
render
jurisdiction
unreasonable.
Emp=rs Mut. Cas. Co., 618 F.3d at 1161. This
reasonableness
analysis
requires
weighing
the
following
five
factors:
(1) the burden on the defendant, (2) the forum state=s
interest in resolving the dispute, (3) the plaintiff=s
interest in receiving convenient and effective relief,
(4) the interstate judicial system=s interest in
obtaining
the
most
efficient
solution
of
controversies, and (5) the shared interest of the
several
states
in
furthering
fundamental
social
policies.
Trujillo
v.
Williams,
465
F.3d
1210,
1221
(10th
Cir.
2006)(quoting Pro Axess, Inc. v. Orlux Distribution, Inc., 428
F.3d 1270, 1279B80 (10th Cir. 2005)).
Having reviewed all of the factors and arguments of the
parties, the court is not persuaded that G & K has shown that
the exercise of jurisdiction here would offend the traditional
notions of fair play and substantial burden.
This is a close
question, but the court is not convinced that G & K has shown
that jurisdiction here would be unreasonable.
the
first
factor,
factor is neutral.
the
court
essentially
In considering
believes
that
this
The claims in this case arise from the
24
litigation that occurred in California.
G & K has shown that it
has no local office or agents in Kansas.
Moreover, there is no
indication
on
that
G
&
K
comes
to
Kansas
a
regular
basis.
However, G & K did solicit this business from a Kansas firm and
the court is not convinced that at this time that G & K has
shown that this action would be a substantial burden on it.
The
second factor in the reasonableness inquiry favors the Hutton
firm.
States have an important interest in providing a forum in
which their residents can seek redress for injuries caused by
out-of-state actors.
Burger King, 471 U.S. at 483.
The third
factor considers whether the Hutton firm may receive convenient
and effective relief in another forum.
OMI Holdings, Inc. v.
Royal Ins. Co. of Canada, 149 F.3d 1086, 1097 (10th Cir. 1998).
This factor may weigh heavily in cases where the plaintiff=s
chances of recovery will be greatly diminished by forcing him to
litigate in another forum because of that forum=s laws or because
the burden may be so overwhelming as to practically foreclose
pursuit of the lawsuit.
See Pacific Atlantic Trading Co. v. M/V
Main Express, 758 F.2d 1325, 1331 (9th Cir. 1985).
The Hutton
firm has provided no facts for the court to find this danger
present in this case.
The factor is neutral.
The fourth factor
in our reasonableness inquiry examines whether the forum state
is the most efficient place to litigate the dispute. Key to this
25
inquiry
are
the
location
of
witnesses,
where
the
wrong
underlying the lawsuit occurred, what forum's substantive law
governs
the
case,
and
whether
prevent piecemeal litigation.
1097.
jurisdiction
is
necessary
to
OMI Holdings, Inc., 149 F.3d at
At this point, the court is not persuaded that G & K has
shown that this court would not be as efficient as the Central
District of California.
applies
is
yet
to
be
The question of which jurisdiction=s law
determined.
Finally,
we
consider
the
interests of the several states in addition to the forum state,
in advancing fundamental substantive social policies. The court
has
no
reason
to
believe
that
either
state=s
fundamental
substantive social policies will be adversely affected by this
case, wherever it may be tried. Accordingly, the court finds
that this factor is neutral.
In sum, the court does not find
that
jurisdiction
the
exercise
of
of
would
offend
the
traditional notions of fair play and substantial justice.
Accordingly, the court finds that the Hutton firm has made
a threshold showing that G & K has sufficient ties with Kansas
as
to
permit
the
jurisdiction over it.
constitutional
exercise
of
personal
The court also finds, however, that the
Hutton firm has not made a threshold showing that Girardi has
sufficient
ties
with
Kansas
as
to
permit
exercise of personal jurisdiction over him.
26
the
constitutional
The court shall
therefore grant the defendants= motion in part and deny it part.
III.
As an alternative, the defendants have asserted that the
court should transfer venue pursuant to 28 U.S.C. ' 1631 and 28
U.S.C. ' 1404(a).
The defendants contend initially that this
case should be transferred to the United States District Court
for
the
Central
District
of
California
under
jurisdiction is lacking over both of them.
'
1631
because
They further contend
that if the court disagrees with them on the issue of personal
jurisdiction then transfer should be made under ' 1404(a) for the
convenience of the parties.
The court is not persuaded that transfer should be made
under
either
statute.
The
court
recognizes
that
personal jurisdiction over one of the defendants.
it
lacks
The court
further recognizes that plaintiff may wish to proceed against
both of these defendants in one forum.
seek to transfer this case.
find
G
&
K
has
shown
that
If so, plaintiff can
At this time, the court does not
it
would
convenient to litigate in California.
located in both Kansas and California.
be
substantially
more
There are key witnesses
The location of this
litigation will be inconvenient for one party or the other.
Much of the information concerning the relevant factors is not
entirely known at this time.
Thus, the court is not persuaded
27
that
the
Hutton
firm=s
choice
of
forum
should
be
disturbed.
However, the court would be willing to consider another motion
at a later time when the parties have a better idea concerning
some of the relevant factors.
IT IS THEREFORE ORDERED that defendants= motion to dismiss
or, alternatively, to transfer (Doc. # 5) be hereby granted in
part and denied in part.
Thomas
V.
Girardi
for
lack
The court shall dismiss defendant
of
personal
jurisdiction.
remainder of the motion shall be denied.
IT IS SO ORDERED.
Dated this 6th
day of January, 2014, at Topeka, Kansas.
s/Richard D. Rogers
Richard D. Rogers
United States District Judge
28
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