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

The