Brandt v. DISH Network Corporation et al
Filing
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MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' Motion to Dismiss [Doc. No 5 ] is granted. FURTHER ORDERED that Plaintiff's Petition against Defendants is dismissed for lack of personal jurisdiction. Case Closed. Signed by District Judge Henry Edward Autrey on 04/14/2014. (CLK)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
GERALD BRANDT,
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Plaintiff,
v.
DISH NETWORK CORORATION and
KEVIN MCINTYRE,
Defendants.
Case No. 2:13CV81HEA
MEMORANDUM AND ORDER
This matter is before the Court on Defendants= Motion to Dismiss Pursuant to
Fed.R.Civ.P. 12(b)(2) and 12(b)(5). Plaintiff has failed to respond to the Motion.
Facts and Background
On August 6, 2013, Plaintiff filed this action against Defendants in the Circuit
Court of Lewis County, Missouri for various claims predicated on a retailer
agreement Plaintiff entered into with EchoStar Satellite Corporation, now known as
DISH Network L.L.C., (DISH). DISH Network L.L.C. is an indirect and wholly
owned subsidiary of Defendant Dish Network Corporation, (DNC). Defendant
McIntyre is employed by DISH as an “Operations Analyst.” Defendants removed
this matter from the Circuit Court of Lewis County, Missouri based on the Court’s
diversity of citizenship jurisdiction. 28 U.S.C. § 1332(a). Defendants are both
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citizens of the State of Colorado. Defendants now move for dismissal for lack of
personal jurisdiction over them.
Legal Standard
In ruling on a motion to dismiss for lack of personal jurisdiction, pursuant to
Rule 12(b)(2), the Court may consider affidavits and exhibits presented with the
motion and in opposition to it. See Dairy Farmers of Am., Inc. v. Bassett & Walker
Int'l, Inc., 702 F.3d 472, 474–75 (8th Cir.2012). Where appropriate or necessary,
the Court has amplified the facts alleged in the Petition with facts from such
additional sources. For present purposes, the focus is on facts relevant to the
Court’s personal jurisdiction over Defendants, rather than all facts giving rise to the
parties’ dispute.
When personal jurisdiction is challenged by a defendant, the plaintiff bears
the burden to show that jurisdiction exists. K–V Pharmaceutical Co. v. J. Uriach &
CIA, S.A, 648 F.3d 588, 591–92 (8th Cir.2011). To successfully survive a motion
to dismiss challenging personal jurisdiction, a plaintiff must make a prima facie
showing of personal jurisdiction over the challenging defendant. Id. at 591. A
plaintiff's prima facie showing “must be tested, not by pleadings alone, but by
affidavits and exhibits supporting or opposing the motion.” Id. at 592 (internal
quotation marks and citation omitted). Although a court must view evidence in a
light most favorable to the plaintiff and resolve factual conflicts in the plaintiff's
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favor, the party seeking to establish the court’s personal jurisdiction carries the
burden of proof and that burden does not shift to the party challenging jurisdiction.
Viasystems, Inc. v. EBM–Papst St. Georgen GmbH & Co., 646 F.3d 589, 592 (8th.
Cir.2011); Epps v. Stewart, 327 F.3d 642, 647 (8th. Cir.2003).
Personal jurisdiction can be specific or general. “Specific jurisdiction refers to
jurisdiction over causes of action arising from or related to a defendant's actions
within the forum state,’ while [g]eneral jurisdiction ... refers to the power of a state
to adjudicate any cause of action involving a particular defendant, regardless of
where the cause of action arose.’” Miller v. Nippon Carbon Co., 528 F.3d 1087,
1091 (8th Cir.2008) (alterations in original) (quoting Bell Paper Box, Inc. v. U.S.
Kids, Inc., 22 F.3d 816, 819 (8th Cir.1994)). Here, Plaintiff’s Petition fails to assert
any basis for the Court’s jurisdiction over Defendants other than to state that
Defendant DNC is registered as a Foreign Corporation in the State of Missouri
Discussion
For a federal court to exercise specific personal jurisdiction over a
nonresident defendant, jurisdiction must be authorized by the forum state’s long-arm
statute and permitted by the Due Process Clause of the Fourteenth Amendment. See
Dever v. Hentzen Coatings, Inc., 300 F.3d 1070, 1073 (8th Cir.2004).1 In Missouri,
1 Previously, the Eighth Circuit has collapsed these two inquiries into the single
inquiry of whether asserting jurisdiction violates the Due Process Clause. See, e.g.,
Romak USA, Inc. v. Rich, 384 F.3d 979, 984 (8th Cir.2004) (conducting only due
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specific personal jurisdiction is authorized only to the extent that “the [cause of]
action arose out of an activity covered by [Missouri’s] long-arm statute.” Conway v.
Royalite Plastics, Ltd., 12 S.W.3d 314, 318 (Mo. banc 2000). Missouri’s long-arm
statute authorizes personal jurisdiction over defendants who, inter alia, transact
business, make a contract, or commit a tort within the state. Mo.Rev.Stat. §
506.500.1. “These individual categories are construed broadly, such that if a
defendant commits one of the acts specified in the long-arm statute, the statute will
be interpreted to provide for jurisdiction, within the specific categories enumerated
in the statute, to the full extent permitted by the Due Process Clause.’” Viasystems,
646 F.3d at 593 (quoting State ex rel. Metal Serv. Ctr. of Ga., Inc. v. Gaertner, 677
S.W.2d 325, 327 (Mo.1984). Missouri’s long-arm statute has been interpreted as
covering “extraterritorial acts that yield consequences in Missouri.” Furminator,
Inc. v. Wahba, No. 4:10CV01941 AGF, 2011 WL 3847390 at *2 (E.D.Mo. Aug. 29,
2011) (quoting Bryant, 310 S.W.3d at 232.
process analysis after noting that “the Missouri long-arm statute authorizes the
exercise of jurisdiction over non-residents to the extent permissible under the due
process clause”). However, the Eighth Circuit recently directed district courts to
conduct a two-step analysis because the more recent decisions of the Missouri
Supreme Court analyze the two questions separately. Myers v. Casino Queen, 689
F.3d 904 (8th Cir.2012)(citing Bryant v. Smith Interior Design Grp., 310 S.W.3d
227, 231 (Mo.2010) (“First, the court inquires whether the defendant's conduct
satisfies Missouri's long-arm statute. If so, the court next evaluates whether ...
asserting personal jurisdiction over the defendant comports with due process.”
(internal citations omitted)).
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Even if personal jurisdiction over a defendant is authorized by the forum
state’s long-arm statute, jurisdiction can be asserted only if permitted by the Due
Process Clause. World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291
(1980). Due process requires that the defendant purposefully establish “minimum
contacts with [the forum state] such that the 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) (quoting Milliken v. Meyer, 311 U.S. 457,
463 (1940)). The defendant must have engaged in “some act by which the defendant
purposely avails itself of the privilege of conducting activities within the forum
State, thus invoking the benefits and protections of its laws.” Burger King Corp. v.
Rudzewicz, 471 U .S. 462, 482 (1985). The purposeful availment requirement is met
where the “defendant’s conduct and connection with the forum State are such that he
should reasonably anticipate being haled into court there.” Id. at 474 (quoting
World–Wide Volkswagen Corp., 444 U.S. at 297).
The Eighth Circuit established a five factor test to determine the sufficiency of
a nonresident defendant's contacts with the forum state. Romak, 384 F.3d at 984. The
five factors are: 1) the nature and quality of contacts with the forum state; 2) the
quantity of the contacts; 3) the relation of the cause of action to the contacts; 4) the
interest of the forum state in providing a forum for its residents; and 5) convenience
of the parties. Id. The first three factors are of “primary importance,” while the last
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two factors are of “secondary importance” and as such are not determinative of
personal jurisdiction. Id.
Specific jurisdiction, unlike general jurisdiction, requires that the defendant
must purposely direct its activities at residents of the forum state and the litigation
“arise[s] out of or relate[s] to” those activities. Helicopteros Nacionales de
Columbia, S.A. v. Hall, 466 U.S. 408, 414 (1984). The Eighth Circuit does not
restrict the relationship between a defendant’s contacts and the cause of action to a
proximate cause standard, rather it states that “specific jurisdiction is warranted
when the defendant purposely directs its activities at the forum state and the
litigation result[s] from injuries ... relating to [the defendant’s] activities [in the
forum state.]’” Myers, 689 F.3d at 912–13 (quoting Steinbuch v. Cutler, 518 F.3d
580, 586 (8th Cir.2008). “This stance is consistent with other circuits which have
focused on the need to adopt a flexible approach when construing the “relate to”
aspect of the Supreme Court’s standard.” Id.
Here, Plaintiff fails to set forth any contacts with the State of Missouri which
would establish that Defendants took any actions encompassed within the Missouri
Long Arm Statute. Defendants have submitted evidence that Defendant DNC is
not licensed in the State of Missouri, that it performed no acts within the State and
that Defendant McIntyre ever performed any acts within the State of Missouri to
subject him to the Long Arm Statute.
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Moreover, based on the affidavits presented to the Court, the exercise of
jurisdiction over Defendants would clearly violate the Due Process Clause because
neither DNC nor McIntyre have (1) engaged in an activity evidencing continuous
and systematic contacts with the State of Missouri to establish general jurisdiction;
or (2) purposefully availed themselves of the benefits and privileges of the forum to
warrant specific jurisdiction. See Viasystems, 646 F.3d at 593.
Conclusion
Based upon the foregoing analysis, the Court finds that requiring Defendant to
come to the State of Missouri to litigate this dispute does not comport with either the
Missouri Long Arm Statute nor the Due Process Clause; Defendants have engaged
in no activity within the State of Missouri, nor do they have sufficient minimum
contacts with the State of Missouri to be expected to haled into this Court.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss [Doc. No
5] is granted.
IT IS FURTHER ORDERED that Plaintiff’s Petition against Defendants is
dismissed for lack of personal jurisdiction.
Dated this 14th day of April, 2014.
_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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