Eichhorn-Hicks et al v. Keane
Filing
13
ORDER granting 5 Motion to Dismiss for Lack of Jurisdiction; dismissing without prejudice 1 Complaint. (Written Opinion). Signed by Judge Richard H. Kyle on 07/11/11. (kll)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Mary H. & Tracy E. Eichhorn-Hicks,
Plaintiffs,
Civ. No. 11-692 (RHK/TNL)
ORDER
v.
Steven T. Keane,
Defendant.
This action arises out of injuries Plaintiff Mary Eichhorn-Hicks suffered on March
21, 2009, while on a boat operated by Defendant Steven Keane. Keane now moves to
dismiss for lack of personal jurisdiction. For the reasons set forth below, his Motion will
be granted.
The relevant facts are straightforward. Mary Eichhorn-Hicks and her husband,
Plaintiff Tracy Eichhorn-Hicks, reside in Minnesota. (Compl. ¶ 1.)1 Keane resides in
Iowa. (Compl. ¶ 2.) He is the brother-in-law of Tracy‟s brother, Jim Hicks. (Tracy Aff.
¶ 5.)2
On March 21, 2009, Mary and Tracy, along with several other family members,
were aboard a motorized boat operated by Keane in the Intracoastal Waterway near
Sarasota, Florida. (Id. ¶¶ 6-7.) According to the Complaint, Keane operated the boat “at
1
2
For ease of reference, the Court refers to Mary and Tracy Eichhorn-Hicks by their first names.
When reviewing a motion to dismiss for lack of personal jurisdiction, the Court may consider
matters beyond the pleadings, such as Tracy‟s Affidavit. E.g., Stevens v. Redwing, 146 F.3d
538, 543 (8th Cir. 1998).
a high rate of speed” over several waves, which caused it “to violently pitch upward and
immediately downward,” resulting in Mary being “thrown with great force, severely
injuring her.” (Compl. ¶¶ 9-10.)
Following the accident, Tracy telephoned Keane from his home in Minnesota to
discuss the matter. (Tracy Aff. ¶ 8.) Keane hung up the phone before the conversation
ended, but later called Tracy back. (Id. ¶¶ 8-9.) He then e-mailed Tracy a draft release
purporting to absolve him of all liability in connection with the incident, in exchange for
inter alia “partial reimbursement of [Mary‟s] medical expenses.” (Id. ¶¶ 11-12 & Exs. 12.) Mary and Tracy declined to sign the release and commenced the instant action.
Keane now moves to dismiss for lack of personal jurisdiction. To survive his
Motion, Plaintiffs must make a prima facie showing that jurisdiction exists. E.g.,
Johnson v. Woodcock, 444 F.3d 953, 955 (8th Cir. 2006); Lakin v. Prudential Sec., Inc.,
348 F.3d 704, 706 n.3 (8th Cir. 2003). Because the Court has not held an evidentiary
hearing, it must view the evidence in the light most favorable to Plaintiffs. E.g., Lakin,
348 F.3d at 706; Digi-Tel Holdings, Inc. v. Pro-Teq Telecomms. (PTE), Ltd., 89 F.3d
519, 522 (8th Cir. 1996).3 To determine whether Plaintiffs have discharged their burden,
the Court must ask two questions. First, has Minnesota‟s long-arm statute been satisfied?
Second, would exercising jurisdiction comport with the Due Process Clause of the
Fourteenth Amendment? E.g., Guinness Import Co. v. Mark VII Distribs., Inc., 153 F.3d
607, 613 (8th Cir. 1998); Minn. Mining & Mfg. Co. v. Nippon Carbide Indus. Co., 63
F.3d 694, 696-97 (8th Cir. 1995). These two inquiries collapse into one, however,
3
No party has requested an evidentiary hearing.
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because Minnesota‟s long-arm statute extends jurisdiction to the outer limits of the Due
Process Clause. E.g., Guinness, 153 F.3d at 614; Soo Line R.R. Co. v. Hawker Siddeley
Can., Inc., 950 F.2d 526, 528 (8th Cir. 1991) (citations omitted).
Due process requires that Keane have sufficient “minimum contacts with
[Minnesota] such that maintenance of the suit does not offend „traditional notions of fair
play and substantial justice.‟” Int‟l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)
(citation omitted); accord, e.g., Republic of Argentina v. Weltover, Inc., 504 U.S. 607,
619-20 (1992); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-92
(1980). “The central question” is whether he “has purposefully availed [him]self of the
privilege of conducting activities in [Minnesota] and should, therefore, reasonably
anticipate being haled into court [here].” Pecoraro v. Sky Ranch for Boys, Inc., 340 F.3d
558, 562 (8th Cir. 2003) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475
(1985)). There are no “talismanic formulas to personal jurisdiction.” Clune v. Alimak
AB, 233 F.3d 538, 542 (8th Cir. 2000). Nevertheless, the Eighth Circuit has instructed
district courts to consider five factors when determining whether jurisdiction exists:
(1) the nature and quality of the defendant‟s contacts with the forum; (2) the quantity of
those contacts; (3) the relation of the cause of action to the contacts; (4) the forum state‟s
interest in providing a forum for the plaintiff; and (5) the convenience of the parties.
Pecoraro, 340 F.3d at 562 (citation omitted). The first three factors are of primary
importance, while the last two factors are considered secondary. Id.4
4
The third factor distinguishes general jurisdiction from specific jurisdiction. See, e.g.,
Burlington Indus., Inc. v. Maples Indus., Inc., 97 F.3d 1100, 1102 (8th Cir. 1996); Bell Paper
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In the Court‟s view, the Pecoraro factors do not support the exercise of jurisdiction
over Keane here. The nature, quality, and quantity of his contacts with Minnesota are
extremely limited. Plaintiffs point to only (1) the two telephone calls between Keane and
Tracy in Minnesota and (2) the e-mail (with the attached release) Keane sent to Tracy
here. Putting aside that these contacts arose after Keane‟s purported negligence,5
contacts such as these repeatedly have been held insufficient to establish personal
jurisdiction. See, e.g., Johnson, 444 F.3d at 956 (“[C]ontact by phone or mail is
insufficient to justify exercise of personal jurisdiction under the due process clause.”)
(citation omitted); Porter v. Berall, 293 F.3d 1073, 1076 (8th Cir. 2002) (same); Digi-Tel,
89 F.3d at 523 (exchange of “dozens of letters and faxes” between parties insufficient to
establish jurisdiction). Simply put, “[t]he use of interstate facilities, such as telephones or
mail . . . „cannot alone provide the “minimum contacts” required by due process.‟” Bell
Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 819 (8th Cir. 1994). Specific jurisdiction exists over
causes of action that arise out of or are related to a defendant‟s contacts with the forum state.
Johnson, 444 F.3d at 956 (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S.
408, 414-15 (1984)). General jurisdiction, by contrast, is far broader – it extends to any cause of
action against a defendant and exists only where the defendant‟s contacts with the forum “are
continuous and systematic.” Id. (internal quotation marks and citation omitted). Only specific
jurisdiction is alleged here.
5
Some courts have questioned whether contacts arising after a cause of action has accrued are
relevant to a specific-jurisdiction analysis. See, e.g., Harlow v. Children‟s Hosp., 432 F.3d 50,
61-62 (1st Cir. 2005). The Court need not opine on this issue, however, as even Keane‟s post“negligence” contacts do not suffice here.
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Paper Box, Inc. v. Trans W. Polymers, Inc., 53 F.3d 920, 923 (8th Cir. 1995) (citation
omitted).6
Plaintiffs also suggest that jurisdiction is proper because Mary is a Minnesota
resident who has received treatment for her injuries here. But the jurisdictional inquiry is
concerned with “the defendant‟s contacts with the forum state, not . . . the defendant‟s
contacts with residents of the forum.” W. Am. Ins. Co. v. Westin, Inc., 337 N.W.2d 676,
679 (Minn. 1983) (emphases added) (citing Hanson v. Denckla, 357 U.S. 235, 250-55
(1958)) (emphasis in original); accord, e.g., Aaron Ferer & Sons Co. v. Atlas Scrap Iron
& Metal Co., 558 F.2d 450, 455 n.6 (8th Cir. 1977) (“It is a defendant‟s contacts with the
forum state that are of interest in determining if in personam jurisdiction exists, not its
contacts with a resident.”). “[A]bsent additional contacts, mere effects in the forum state
are insufficient to confer personal jurisdiction.” Johnson v. Arden, 614 F.3d 785, 797
(8th Cir. 2010); accord, e.g., Hicklin Eng‟g, Inc. v. Aidco, Inc., 959 F.2d 738, 739 (8th
Cir. 1992) (per curiam).
At bottom, the first three Pecoraro factors do not support this Court‟s exercise of
jurisdiction over Keane. And the remaining two “secondary” factors do not change that
conclusion. As stated in Kroll Ontrack, Inc. v. Grain, Civ. No. 08-1779, 2008 WL
4561637, at *7 (D. Minn. Oct. 10, 2008) (Frank, J.), “[t]hough Minnesota has an interest
in providing a forum for dispute resolution to its residents, the connection between this
dispute and Minnesota is relatively tenuous. Further, [Plaintiffs] would find it convenient
6
The Court also notes the reluctance “to use unsuccessful settlement discussions” – such as the
e-mail and release – “as „contacts‟ for jurisdictional purposes.” Digi-Tel, 89 F.3d at 524-25. It
need not rely on this basis to conclude that jurisdiction over Keane is lacking, however.
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to litigate here, but [Keane] would not and, thus, this factor does not weigh either way in
the Court‟s decision.” At best, the final two factors are in equipoise and do not tip the
scales in Plaintiffs‟ favor.
CONCLUSION
There is simply no evidence that Keane intentionally aimed his conduct (as related
in any way to the accident) toward Minnesota or “purposefully availed” himself of the
benefit of its laws. Rather, a Minnesota resident happened to be injured while on a boat
Keane, an Iowa resident, was operating in Florida. This is the type of “random,”
“fortuitous,” and “attenuated” contact insufficient to establish personal jurisdiction.
Burger King, 471 U.S. at 475; accord, e.g., Calder. v. Jones, 465 U.S. 783, 789 (1984)
(personal jurisdiction not properly exercised based on effect felt in forum state from
“mere untargeted negligence”). Based on the foregoing, and all the files, records, and
proceedings herein, IT IS ORDERED that Keane‟s Motion to Dismiss (Doc. No. 5) is
GRANTED and Plaintiffs‟ Complaint (Doc. No. 1) is DISMISSED WITHOUT
PREJUDICE.7
Dated: July 11, 2011
s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge
7
Keane has asked the Court to award him attorneys‟ fees and costs in connection with the instant
Motion, but he has set forth no basis for the Court to do so. In any event, an application for fees
and/or costs (if any) must be filed in accordance with District of Minnesota Local Rule 54.3.
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