Heffington v. Puleo et al

Filing 33

MEMORANDUM AND ORDER denied as moot 6 Motion to Dismiss for Lack of Jurisdiction; denied as moot 10 Motion to Appoint Counsel ; granting 14 Motion to Dismiss; granting 16 Motion to Dismiss; terminating 16 Motion to Transfer Case; denied as moot 24 Motion for Order; denied as moot 24 Motion to Strike. Signed by District Judge Eric F. Melgren on 2/2/2018. (sz)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

GUY W. HEFFINGTON,
Plaintiff,

vs.

Case No. 17-1192-EFM

PAMELA PULEO; FREDERICK G.
SUNDHEIM, JR.; and OUGHTERSON,
SUNDHEIM & ASSOCIATES, P.A.,
Defendants.

MEMORANDUM AND ORDER
This case involves a dispute over the proper handling of the estate of Nyla June
Heffington (“Nyla June”), Plaintiff Guy Heffington’s grandmother. Heffington alleges that the
attorney and law firm that prepared his grandparent’s will and trust documents, along with the
trustee of his grandmother’s trust, conspired to convert his grandmother’s assets for their own
use and to deprive Heffington and his brother of their inheritance. Construed liberally, his
Amended Complaint purports to advance constitutional, breach of fiduciary duty, conversion,
negligence, and fraud claims.
Five motions are currently before the Court. Collectively, the Defendants have filed
three motions to dismiss, Heffington has filed a motion to strike or stay the deadline for his
response to Defendant Puleo’s motions to dismiss, and Heffington has filed a motion to appoint

counsel. The Court grants the Defendants’ motions to dismiss (Docs. 14 & 16) for lack of
personal jurisdiction, and denies the remaining motions as moot (Docs. 6, 10, & 24).1
I.

Factual and Procedural Background2

Nyla June and her husband, Charles Heffington, lived in West Islip, New York from
approximately 1952 until 1976. After Charles retired in 1976, the couple moved to Florida.
While in Florida, Nyla June and Charles retained Frederick G. Sundheim, Jr., a resident of the
state of Florida and a partner at the Florida law firm Oughterson, Sundheim & Associates, P.A.,
to perform estate planning services. In 2003, Sundheim prepared a will and a trust for Nyla June
and Charles. Sundheim made periodic revisions to these documents through 2015.
Nyla June had one child, Mark Heffington, and two grandchildren, Plaintiff and his
brother, Grant. At all relevant times, Nyla June’s son and grandchildren resided in Kansas. The
Joint Declaration of Trust executed in 2003 named Mark Heffington as successor trustee. Mark
Heffington unexpectedly passed away in 2006. Approximately five years later, in 2011, Charles
Heffington passed away. In 2012, Nyla June moved back to New York to live with her life-long
best friend, Helen Puleo, and Helen’s daughter, Pamela Puleo (“Puleo”), at Helen’s house on
Ryan Street.
2012 Amendment to Joint Declaration of Trust
The first contested revision to Nyla June’s estate plan occurred on March 1, 2012, prior
to Nyla June’s move to New York. Nyla June and Puleo met with Sundheim to revise Nyla

1

Defendants Sundheim and Oughterson, Sundheim & Associates filed a motion to dismiss (Doc. 6)
Heffington’s Complaint. Because Heffington subsequently filed an Amended Complaint (Doc. 12), this motion is
moot.
2

Drawing all reasonable inferences in favor of Plaintiff, the facts are taken from the Amended Complaint
and its attached exhibits.

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June’s trust. Heffington asserts that although Nyla June had always intended to leave everything
to her grandsons, Puleo had somehow convinced Nyla June to leave her Florida condo to Puleo.
After this revision, Puleo moved Nyla June to New York to live with her ailing mother, Helen.
Around this time, Nyla June contacted Heffington’s mother, Joan Farr, to inform Farr that
Nyla June was moving to New York with the help of Puleo. This concerned Farr and she tried to
contact Sundheim and his law firm by phone and e-mail to determine whether Nyla June had
changed her estate plan. The law firm initially ignored her calls, but eventually called Farr and
informed her that the firm could not provide any details about Nyla June’s visit, but that Nyla
June seemed to be in her right mind. Aside from returning Farr’s phone call, no Defendant had
any contacts with Farr, Heffington, or Kansas until late 2016 when Puleo mailed some of Nyla
June’s belongings to Heffington.
2015 Amendment to Joint Declaration of Trust
The second contested revision to Nyla June’s estate plan occurred in early 2015.
Heffington alleges that on February 9, 2015, Nyla June revised her trust to name Puleo as trustee.
He attaches Exhibit B, the Fourth Amendment to Joint Declaration of Trust, as evidence. Exhibit
B shows a revision to the provision titled “Trustee Succession.” Exhibit B states that Nyla June
“is now the sole trustee of the Joint Declaration of Trust,” and states that “[i]f at any time both
settlors shall die, resign, or be unable to manage their affairs, PAMELA PULEO shall become
successor trustee . . . .” Heffington does not identify any contacts with Kansas or with residents
of Kansas in relation to this revision.
Additional events underlying Heffington’s claims in this action
Nyla June continued to live with Helen until she moved into an assisted living facility
sometime in late 2016 or early 2017. On approximately April 9, 2017, Puleo called Heffington

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and informed him that Nyla June was in the hospital and was not doing well. Puleo sent
Heffington a check for $1,900 to cover airfare for him, his brother, and his mother to visit Nyla
June. Puleo later stated that having that many people would be too much stress for Nyla June
and that they should not come.
Heffington’s mother spoke with Sundheim on Heffington’s behalf on approximately
April 13, 2017. Sundheim allegedly stated that Puleo had been appointed as trustee and, in
reference to Nyla June’s estate, said that if Puleo “spends the money down, there is nothing you
can do.”

Sundheim also stated that Heffington and his brother had no right to see bank

statements for Nyla June going back three years.
Heffington, his brother, and his mother had a conference call with Sundheim on April 20,
2017, wherein they learned that Nyla June had given her Florida condo to Puleo and that it had
been sold. They also learned that in September of 2016, purportedly acting on behalf of Nyla
June, Puleo purchased her mother’s house on Ryan Street with $437,000 of Nyla June’s money.
Heffington’s mother later learned that Puleo had transferred the deed to the Ryan Street house
from Nyla June to herself on April 21, 2017. During the conference call with Sundheim, Puleo
sent a text message to Heffington asking why he did not believe her. Farr subsequently called
Puleo and told her to only contact Heffington by e-mail.
Heffington and his brother flew to New York on April 21, 2017, to visit Nyla June.
Puleo paid for the brothers’ hotel room, purchased them jackets, and purchased their meals
during their stay—purportedly in an effort to be-friend them and make them believe she would
distribute their inheritance money properly as trustee. On April 24, 2017, Nyla June passed
away in Suffolk County, New York.

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Administration of Nyla June’s estate
On May 2, 2017, an employee of Oughterson, Sundheim & Associates sent a copy of
Nyla June’s will and trust via e-mail to Heffington’s brother—neither grandson had previously
seen these documents. Heffington’s review of the trust showed that Sundheim put all of Nyla
June’s assets in the trust so that Puleo could control the assets as trustee in New York. Puleo did
not understand the legalities of serving as trustee, and Sundheim and his law firm purportedly
directed Puleo’s actions as trustee.
Farr sent Puleo copies of outstanding bills Heffington’s brother owed, and Puleo sent
each brother a check for $8,000. Farr e-mailed Sundheim and requested a copy of the inventory
accounting for Nyla June’s estates at the time of her death, and although Sundheim said they
were working on an accounting, he did not send one. Heffington’s brother was told that Puleo
and Sundheim were waiting for the house to sell before providing a final accounting of the assets
in Nyla June’s estate.
Heffington alleges that Puleo breached her fiduciary duty by purchasing Puleo’s family
home, fraudulently deeding it to herself on April 21, 2017, and trying to sell the home to pocket
the proceeds. He asserts breach of fiduciary duty claims against all Defendants alleging that they
conspired together to illegally convert the assets in Nyla June’s estate for their own benefit and
use by paying themselves excessive administrative and legal fees, failed to provide annual
accountings, failed to provide a final accounting at the time of Nyla June’s death, failed to timely
file Nyla June’s will and trust with the New York court, converted property for their own use and
benefit, wasted Heffington’s inheritance money prior to Nyla June’s passing, failed to act
ethically in the beneficiaries’ best interests, acted negligently as trustee and executor, and
violated his due process and equal protection rights.

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Heffington does not allege that Nyla June ever lived in Kansas, or owned any property or
assets located in Kansas. Rather, Nyla June’s only connection to Kansas is that her only child
and grandchildren lived in Kansas, and until her son’s death in 2006, she visited Kansas every
year. After her son’s death, however, she ceased visiting or communicating with Heffington, his
brother, and his mother. Heffington currently resides in Derby, Kansas, and has lived in Kansas
for all times relevant to this lawsuit.
Heffington does not allege that Puleo or Sundheim have ever set foot in Kansas, or had
any contact with Kansas aside from sporadic mail, phone, and e-mail communications. He
asserts that Puleo resides in New York and Sundheim resides in Florida. Likewise, Heffington
does not allege that Oughterson, Sundheim & Associates does business in Kansas, or otherwise
has any contacts with Kansas beyond what has been described above. He asserts that the law
firm has its primary offices in Florida.
II.

Legal Standard

A plaintiff opposing a motion to dismiss based on lack of personal jurisdiction bears the
burden of showing that jurisdiction over the defendant is appropriate.3 In a pretrial motion to
dismiss, when the matter is decided on the basis of affidavits and written materials, the plaintiff
is only required to make a prima facie showing that personal jurisdiction is proper to avoid
dismissal.4 Once the plaintiff makes a prima facie showing, the defendant must “present a

3

Thermal Components Co. v. Griffith, 98 F. Supp. 2d 1224, 1227 (D. Kan. 2000) (citing Kuenzle v. HTM
Sport–Und Freizeitgerate AG, 102 F.3d 453, 456 (10th Cir. 1996)).
4

Id.

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compelling case demonstrating ‘that the presence of some other considerations would render
jurisdiction unreasonable.’ ”5
“The allegations in the complaint must be taken as true to the extent they are
uncontroverted by the defendant’s affidavits.”6 “However, only the well pled facts of plaintiff’s
complaint, as distinguished from mere conclusory allegations, must be accepted as true.”7 “The
plaintiff has the duty to support jurisdictional allegations in a complaint by competent proof of
the supporting facts if the jurisdictional allegations are challenged by an appropriate pleading.”8
III.
A.

Analysis

The Court lacks Personal Jurisdiction over the Defendants
“Where a federal lawsuit is based on diversity of citizenship, the court’s jurisdiction over

a nonresident defendant is determined by the law of the forum state.”9 The party seeking to
establish personal jurisdiction over a diverse litigant must make two showings: (1) that
jurisdiction is legitimate under the state’s long-arm statute, and (2) that jurisdiction does not
offend the Due Process Clause of the Fourteenth Amendment.10 The Kansas Supreme Court has
interpreted Kansas’ long-arm statute to extend jurisdiction to the fullest extent allowed by the

5

Id. at 1227 (quoting OMI Holdings, Inc. v. Royal Ins. Co. of Can., 149 F.3d 1086, 1091 (10th Cir. 1998)).

6

Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995) (internal quotations omitted).

7

Id. (citations omitted).

8

Id. at 1508 (quoting Pytlik v. Prof’l Res., Ltd., 887 F.2d 1371, 1376 (10th Cir. 1989)).

9

Marcus Food Co. v. DiPanfilo, 671 F.3d 1159, 1166 (10th Cir. 2011). Although Heffington amended his
Complaint to assert violations of his constitutional rights, those claims are subject to summary dismissal because
private actors cannot violate an individual’s due process or equal protection rights, and Heffington has failed to
allege that any Defendant acted under color of law. See Browns v. Mitchell, 409 F.2d 593, 594 (10th Cir. 1969).
10

Kuenzle, 102 F.3d at 455.

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Due Process Clause of the Fourteenth Amendment.11 Thus, in this case, the Court need not
conduct a statutory analysis apart from the due process analysis.12
“The Due Process Clause protects an individual’s liberty interest in not being subject to
the binding judgments of a forum with which he has established no meaningful ‘contacts, ties, or
relations.’ ”13 “Due process requires both that the defendant ‘purposefully established minimum
contacts with the forum State’ and that the ‘assertion of personal jurisdiction would comport with
fair play and substantial justice.’ ”14 “[A]n out-of-state defendant’s contacts with the forum state
may give rise to either general (all-purpose) jurisdiction or specific (case-linked) jurisdiction.”15
1.

General Jurisdiction

General jurisdiction allows the Court to “exercise jurisdiction over an out-of-state party
for all purposes.”16 “‘Because general jurisdiction is not related to the events giving rise to the
suit, courts impose a more stringent minimum contacts test, requiring the plaintiff to demonstrate
the defendant’s continuous and systematic general business contacts.’ ”17 Accordingly, general

11

Merriman v. Crompton Corp., 282 Kan. 433, 146 P.3d 162, 179 (2006).

12

Emp’rs Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1159 (10th Cir. 2010).

13

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72 (1985) (quoting Int’l Shoe Co. v. Washington,
326 U.S. 310, 319 (1945)).
14

Old Republic Ins. Co. v. Cont’l Motors, Inc., 877 F.3d 895, 903 (10th Cir. 2017) (quoting Burger King,
471 U.S. at 476).
15

Id. (citations omitted).

16

Id.

17

Id. at 904 (quoting Benton v. Cameco Corp., 375 F.3d 1070, 1080 (10th Cir. 2004)).

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jurisdiction is only proper when a party’s “affiliations with the State are so continuous and
systematic as to render them essentially at home in the forum State.”18
Heffington argues that general jurisdiction is proper based on his grandmother’s contacts
with Kansas. He argues that “Nyla June continued to call and send cards to plaintiff and his
brother after his father died which justifies a finding of ‘systematic, continuous or substantial
contacts.’ ”19 Further, he claims that his mother attempted to contact Nyla June and Oughterson,
Sundheim & Associates in 2012, and that everyone largely ignored her calls until Oughterson,
Sundheim & Associates finally returned a call but then “purposely never told her anything about
the contents of the will and trust.”
Heffington does not allege that any Defendant has ever stepped foot in Kansas, conducted
business in Kansas, or had any regular or ongoing contact with Kansas of the nature that would
support a finding of general jurisdiction. Indeed, many of the “contacts” Heffington identifies
are attributed to his grandmother and not to any of the Defendants in this case. Heffington has
wholly failed to identify contacts by any Defendant of the continuous and systematic nature
required to support a finding of general jurisdiction. Accordingly, if personal jurisdiction exists
at all over the Defendants, it is under specific and not general jurisdiction.
2.

Specific Jurisdiction

Specific jurisdiction allows the Court to exercise jurisdiction over an out-of-state
defendant “only if the cause of action relates to the party’s contacts with the forum state.”20

18

Am. Fidelity Assurance Co. v. Bank of N.Y. Mellon, 810 F.3d 1234, 1238 (10th Cir. 2016) (quoting
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)).
19

Doc. 32, pp. 10-11.

20

Old Republic, 877 F.3d at 904 (citing Daimler AG v. Bauman, 134 S. Ct. 746, 754 (2014)).

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Courts evaluating whether specific jurisdiction exists engage in a two-step inquiry. First, the
Court asks “whether the plaintiff has shown that the defendant has minimum contacts with the
forum state.”21 If so, the Court proceeds to the second inquiry, and asks “whether the defendant
has presented a ‘compelling case that the presence of some other considerations would render
jurisdiction unreasonable.’ ”22 Here, the Court need not analyze the second inquiry because
Heffington’s failure to satisfy the first inquiry is dispositive.
In the specific jurisdiction context, the minimum contacts test “requires, first, that the
out-of-state defendant must have ‘purposefully directed’ its activities at residents of the forum
state, and second, that the plaintiff’s injuries must ‘arise out of’ defendant’s forum-related
activities.’ ”23 The “purposeful direction” requirement ensures that “an out-of-state defendant is
not bound to appear to account for merely ‘random, fortuitous, or attenuated contacts’ with the
forum state.”24 Indeed, the relationship between the defendant and the forum must arise out of
contacts that the “defendant himself” created with the forum—i.e. the analysis must focus on “the
defendant’s contacts with the forum” and not merely the defendant’s contacts “with persons who
reside there.”25
A plaintiff may employ several frameworks to satisfy the “purposeful direction”
requirement.26 Here, Heffington relies on the “harmful effects” framework established by the
21

Id. (citation omitted).

22

Id. (quoting Burger King, 471 U.S. at 476-77).

23

Dudnikov v. Chalk & Vermillion Fine Arts, Inc., 514 F.3d 1063, 1071 (10th Cir. 2008) (quoting Burger
King, 471 U.S. at 472).
24

Id. at 1071 (quoting Burger King, 471 U.S. at 475).

25

Walden v. Fiore, 134 S. Ct. 1115, 1122-23 (2014) (emphasis in original).

26

See, e.g., Old Republic, 877 F.3d at 905.

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U.S. Supreme Court in Calder v. Jones.27 In Calder, the Court found specific jurisdiction over
Florida defendants that published an allegedly libelous article about a California resident. The
defendants had numerous contacts with California: they relied on phone calls with California
sources to obtain information for the article, they wrote about the plaintiff’s activities in
California, they caused reputational injury in California by publishing an article widely
circulated in California, and the brunt of the injury was suffered in California. California was
“the focal point both of the story and of the harm suffered.”28
The Calder effects test allows a plaintiff to satisfy the “purposeful direction” requirement
“when an out-of-state defendant’s intentional conduct targets and has substantial harmful effects
in the forum state.”29 The Tenth Circuit has summarized this test to require “(a) an intentional
action . . . , that was (b) expressly aimed at the forum state . . . , with (c) knowledge that the brunt
of the injury would be felt in the forum state.”30 This test requires “more than simply harm
suffered by a plaintiff who resides in the forum state.”31 Indeed, “the plaintiff cannot be the only
link between the defendant and the forum.”32 Rather, the defendant’s conduct must connect the

27

465 U.S. 783 (1984). Based on the contacts Heffington identifies, he properly focuses on the Calder
effects test as the alternative frameworks clearly do not apply.
28

Id. at 789.

29

Old Republic, 877 F.3d at 907 (citing Calder, 465 U.S. at 790-91) (emphasis in original).

30

Id. (quoting Dudnikov, 514 F.3d at 1072).

31

Id. at 917 (citing Walden, 134 S. Ct. at 1125).

32

Id. (quoting Walden, 134 S. Ct. at 1122).

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defendant “to the forum in a meaningful way.”33 “[M]ere foreseeability of causing an injury in
the forum state is . . . insufficient.”34
a.

Defendants Sundheim and Oughterson, Sundheim & Associates

Heffington’s only allegations connecting Sundheim and his law firm to Kansas consist of
phone calls with the law firm initiated by Heffington or his family, and the firm’s action of
forwarding estate documents via e-mail to Heffington’s brother after Nyla June’s passing. These
contacts do not establish that Sundheim and his law firm “purposefully established minimum
contacts with” Kansas sufficient to exercise personal jurisdiction over them.
Defendants’ phone calls with Heffington are not “‘sufficient in themselves to establish
minimum contacts.’ ”35 Indeed, “[t]elephone contacts lack constitutional significance under the
minimum contacts doctrine due to the geography-defying nature of twenty-first century
telephone communications.”36

Likewise, sending one e-mail containing a copy of estate

planning documents also lacks constitutional significance. Although the Tenth Circuit has not
enunciated a bright-line rule for how many communications may constitute minimum contacts,37
in Far West Capital, the Tenth Circuit found that far more substantial contacts—both in quality
and quantity—than those alleged here were insufficient to establish minimum contacts.38

33

Walden, 134 S. Ct. at 1125.

34

Dudnikov, 514 F.3d at 1077.

35

Loeffelbein v. Rare Medium Grp., Inc., 2003 WL 23484636, at *4 (D. Kan. 2003) (quoting Far W.
Capital, Inc. v. Towne, 46 F.3d 1071, 1077 (10th Cir. 1995)).
36

Proud Veterans, LLC v. Ben-Menashe, 2014 WL 791200, at *8 (D. Kan. 2014).

37

Loeffelbein, 2003 WL 23484636, at *4.

38

Far W. Capital, 46 F.3d at 1077 (finding that the defendant’s phone calls and ten to twenty faxes and
letters sent over the course of contract negotiations were insufficient to establish minimum contacts).

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Here, the parties’ contacts were sporadic at best, and in almost every instance initiated by
Heffington or his mother. There is no meaningful connection between Sundheim, his law firm,
this litigation, and Kansas, and neither Defendant purposefully directed its activities at residents
of Kansas. Indeed, Heffington does not allege that Sundheim—or anyone within his law firm—
even knew that the beneficiaries of Nyla June’s trust resided in Kansas, let alone that Sundheim
or his firm reached out to Kansas in a constitutionally significant manner.39 Accordingly, the
Court concludes that Heffington has not asserted sufficient facts to make a prima facie showing
that personal jurisdiction is proper as to Sundheim or his law firm.
b.

Defendant Puleo

Heffington identifies the following contacts between Puleo and Kansas: Puleo sent some
of Nyla June’s belongings to the Heffingtons in the fall of 2016 (around the time when Nyla June
went to live in an assisted living), called Heffington’s family in April 2017 to inform them that
Nyla June was ill, sent a check to the Heffingtons for airfare to visit Nyla June before her
passing, sent a distribution from the trust to Heffington and his brother, and had a handful of
phone and text exchanges with Heffington and his family. Although Puleo has had more
contacts with Kansas than the other Defendants, the Court finds that Puleo’s contacts with
Kansas similarly fail to satisfy the minimum contacts requirement.
Almost every Court to address the issue has held that an out-of-state trustee of an out-ofstate trust is not subject to personal jurisdiction in a forum simply because a beneficiary resides

39

Cf. Newsome v. Gallacher, 722 F.3d 1257, 1280-81 (10th Cir. 2013) (holding that out-of-state attorney
working from an out-of-state office on an out-of-state matter did not purposefully avail himself of the laws and
privileges of his client’s home forum where the attorney did not reach out to the client’s home forum to solicit the
client’s business).

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in the forum.40 For example, the U.S. District Court for the District of Colorado has refused to
exercise personal jurisdiction over a Kansas trustee simply because a beneficiary of the trust
resided in Colorado.41 In Janney, a beneficiary residing in Colorado filed a lawsuit against a
Kansas trustee pursing claims for conversion, breach of fiduciary duty, and unjust enrichment,
and requesting the court appoint a receiver, order the trustee to provide an accounting, and
remove the defendant as trustee. There, the settlors of the trusts resided in Kansas at the time of
their deaths, the trustee resided in Kansas and administered the trusts from Kansas, and the trusts
provided that questions of construction and administration shall be determined under the laws of
the state where the trust is administered.42 In finding that specific jurisdiction did not exist, the
Court recognized that “Colorado’s relationship to the events that give rise to this lawsuit is based
on nothing more than the mere fortuity that [a beneficiary] happens to reside here, which is a fact
insufficient in itself to create personal jurisdiction over a nonresident defendant.”43
40

See, e.g., McVickar v. Pavis-Rounds, 2015 WL 566989 (D. Mass. 2015) (finding no personal jurisdiction
over out-of-state trustee where only connection with the forum state was two beneficiaries resided in the forum and
felt the effects of the breach of fiduciary duty in the forum); Thomas v. Thomas, 2015 WL 12681311 (C.D. Cal.
2015) (holding no personal jurisdiction over out-of-state trustee where contacts were limited to phone, mail and email communications with beneficiary); Schneider v. Cate, 405 F. Supp. 2d 1254 (D. Colo. 2005) (finding no
personal jurisdiction over Wyoming trustee where only connection with Colorado was that a beneficiary residing in
Colorado felt the economic impact of alleged torts in Colorado); Battig v. Lombardo, 2000 WL 1847575 (D. Or.
2000) (refusing to exercise personal jurisdiction over an out-of-state trustee); Dreher v. Smithson, 986 P.2d 721 (Or.
Ct. App. 1999) (finding trustees did not purposefully direct their activities toward an Oregon beneficiary—trustees’
agreement to serve as successor trustees with knowledge that beneficiary resided in Oregon, trustees’
correspondence and telephone calls to and from Oregon beneficiary, and trustees’ distribution of checks to
beneficiary in Oregon were insufficient contacts); Popper v. Podhragy, 48 F. Supp. 2d 268 (S.D.N.Y. 1998)
(holding no personal jurisdiction over trustee where beneficiary alleged conversion of trust property but merely
sustained financial loss or residuary pain in forum state). But see Seijo v. Miller, 425 F. Supp. 2d 194 (D.P.R. 2006)
(finding personal jurisdiction existed over trustee where grantor of trust was domiciled in Puerto Rico at time of
death, the income beneficiary resided in Puerto Rico when the trust was established and at all other relevant times,
the trustee made disbursements to Puerto Rico, and the claims arose out of the trustee’s allegedly improper
disbursements sent to Puerto Rico).
41

Janney v. Janney, 2009 WL 1537895, at *4 (D. Colo. 2009).

42

Id.

43

Id. (citing Far W. Capital, 46 F.3d at 1079).

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In accordance with Janney, and the vast majority of courts that have addressed similar
circumstances, this Court concludes that the sparse and insignificant contacts alleged here are
insufficient to establish the minimum contacts necessary to exercise personal jurisdiction over
Puleo. Nyla June had her will and trust prepared by a Florida law firm when she was a resident
of Florida, the trust states that its validity and interpretation are subject to Florida law, and Nyla
June did not own property or other assets located in Kansas, rather all assets identified by
Heffington are located in either New York or Florida. Further, Puleo has administered the trust
from New York. Puleo simply does not have the requisite contacts with Kansas for this Court to
exercise personal jurisdiction over her in this matter.
Heffington has failed to demonstrate purposeful actions by any Defendant sufficient to
establish “meaningful contacts, ties, or relations” with Kansas. Indeed, no action underlying
Heffington’s claims took place in Kansas, and the only relation between the Defendants, this
case, and Kansas is the fact that Heffington and his brother reside in Kansas and felt the
economic impact of Defendants’ alleged actions in Kansas. Unlike Calder, Kansas is not the
focal point of the alleged actions and Defendants’ contacts with Kansas are constitutionally
insignificant. Accordingly, Heffington has failed to make a prima facie showing that personal
jurisdiction is proper here. Because the Court may not exercise personal jurisdiction over any
Defendant, the Court grants Defendants’ motions to dismiss for lack of personal jurisdiction.44
3.

Personal Jurisdiction versus Diversity Jurisdiction

Heffington mistakenly argues that because diversity jurisdiction is present, it is not
necessary that personal jurisdiction also be present. The presence of diversity jurisdiction,
44

Because the Court grants the Defendants’ motions on the basis of lack of personal jurisdiction, it is
unnecessary to decide and the Court declines to address the remaining issues presented in the Defendants’ motions.

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however, only satisfies the requirement that the Court have subject matter jurisdiction—i.e.
authority over the claims in the suit. Personal jurisdiction exists where the Court has authority
over the parties to the suit. Courts must have both subject matter and personal jurisdiction, and
the presence of diversity jurisdiction is irrelevant to the question of whether personal jurisdiction
exists. Here, no Defendant has waived personal jurisdiction, and for the reasons stated above,
Heffington has failed to make a prima facie showing that personal jurisdiction is proper as to any
Defendant. Because a Court must have both subject matter jurisdiction and personal jurisdiction
to entertain a case, and because the Court does not have personal jurisdiction over any
Defendant, Heffington’s claims are dismissed.
B.

Heffington’s Motions are Denied as Moot
Since the Court lacks personal jurisdiction over the Defendants in this case, it is

unnecessary to address Heffington’s motion for appointment of counsel. Thus, Heffington’s
motion for appointment of counsel is denied as moot. Likewise, Heffington’s motion to strike,
or in the alternative, motion to stay his response to Puleo’s motion to dismiss is denied as moot.
Not only has the Court granted Puleo’s motion to dismiss, but Heffington filed a response to
Puleo’s motion, mooting his request to stay the deadline for filing his response to this motion.
IV.

Conclusion

Heffington has failed to make a prima facie showing that personal jurisdiction is proper
as to any Defendant. Accordingly, Defendants’ motions to dismiss Heffington’s Amended
Complaint are granted, and Heffington’s claims against the Defendants are dismissed. Because
the Court is dismissing Heffington’s claims for lack of personal jurisdiction, it does not opine on
the merits of the parties’ remaining contentions. The Court further concludes that Plaintiff’s
pending motions are moot in light of the Court’s holding regarding personal jurisdiction.

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IT IS THEREFORE ORDERED that Defendants Sundheim, Jr. and Oughterson,
Sundheim & Associates, P.A.’s Motion to Dismiss Amended Complaint (Doc. 14) and
Defendant Puleo’s Motion to Dismiss Plaintiff’s Amended Complaint (Doc. 16) are GRANTED
on personal jurisdiction grounds.
IT IS FURTHER ORDERED that Defendants Sundheim, Jr. and Oughterson,
Sundheim & Associates, P.A.’s Motion to Dismiss (Doc. 6) is DENIED as moot.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Appointment of Counsel (Doc.
10) and Motion to Strike; or in the Alternative, Motion to Stay his Response to Defendant
Puleo’s Motion to Dismiss (Doc. 24) are DENIED as moot.
IT IS SO ORDERED.
Dated this 2nd day of February, 2018.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

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