Davis v. Villa Services et al

Filing 65

MEMORANDUM AND ORDER that the defendants motions to dismiss (Filings 13 & 17) based on lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2) are granted; 2. Judgment will be entered by separate document dismissing this case without prejudice. Ordered by Senior Judge Richard G. Kopf. (Copies mailed as directed)(DKM, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HENRY DAVIS,

)
)
Plaintiff,
)
)
v.
)
)
VILLA SERVICES d/b/a RENTAL
)
BUTLER, CARIMO REAL ESTATE )
& VILLA RENTALS, and EDWARD )
WACHS,
)
)
Defendants.
)
)

8:14CV137

MEMORANDUM
AND ORDER

In this diversity action, plaintiff Henry Davis, a Nebraska resident, alleges that
the defendants failed to provide him a vacation rental property in St. Martin with the
amenities required by the parties’ contract. The defendants have filed motions to
dismiss for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2). (Filings
13, 17.)
I. BACKGROUND
In August 2013, plaintiff Henry Davis began communicating with defendant
Rental Butler (a citizen of Canada with its principal place of business in Ontario) to
assist in planning a family vacation to St. Martin from December 29, 2013, to January
5, 2014. (Filing 3, Amended Complaint ¶¶ 7, 13(a); Filing 60-4, Davis Aff. ¶ 2.) Rental
Butler is a web-based service that connects individuals with vacation rentals located
outside the United States. Rental Butler has relationships with owners and management
companies for properties in Antigua, Grenada, Barbados, and St. Martin, among
others. (Filing 15-1, Tarter Aff. ¶¶ 11, 12.)

In the course of planning the Davis family’s vacation, Rental Butler exchanged
at least 55 emails and 5 telephone calls with Davis, his significant other, and his
family—who were all located in Nebraska. (Filing 60-4, Davis Aff. ¶¶ 2-4; Filing 15-1,
Tarter Aff. ¶ 14.) In these emails and telephone conversations, Rental Butler made
representations regarding Davis’s accommodations and what he should expect while
on his family vacation. These representations essentially indicated Davis was
purchasing, and would receive, a luxury experience at the “Belle Etoile” property in
St. Martin, including access to a full-time private chef who would prepare meals of
Davis’s choice; pre-stocked food provisions of Davis’s choice; a concierge to aid in
transportation and complete other duties; an on-site, full-time property manager to
assist Davis and his guests during the trip; and exercise and spa equipment, including
a hot tub. (Filing 3, Amended Complaint ¶ 9; Filing 60-4, Davis Aff. ¶¶ 8-11.)
On August 12, 2013, Davis selected the Belle Etoile property in St. Martin and
asked Rental Butler to reserve the property for his vacation. (Filing 15-1, Tarter Aff.
¶ 15.) Defendant Edward Wachs (a resident of Illinois) owned the property, and
defendant Carimo Real Estate & Villa Rentals (a French company) was the property
manager. (Filing 19-2 ¶¶ 17, 26.)1
Rental Butler sent Davis a booking form, which included the terms and
conditions of the agreement. (Filing 15-1, Tarter Aff. ¶ 16.) On August 13, 2013,
Davis wired half of the balance of the rental ($24,890) from Nebraska to Rental Butler

1

Carimo rents its properties either directly or through entities like Rental Butler.
(Filing 19-2 ¶¶ 17, 26.) In 2011, Wachs contracted with Carimo to advertise and
market the property for rental, and in 2012 the parties executed an exclusive rental
agreement that gave Carimo the exclusive ability to advertise and market the property
for rent. (Filing 19-1 ¶¶ 11, 21 & Ex. A; Filing 19-2 ¶ 22 & Ex. A.) When Carimo
rents Wachs’ property, it collects the money and pays Wachs anywhere between 70
and 90 percent of the money generated from the booking. (Filing 19-1, Ex. A; Filing
19-2, Ex. A & Ex. G, No. 11.)
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in Canada and, in turn, Rental Butler sent Davis a booking confirmation via email
containing the details of the rental and the statement of accounts. (Filing 15-1, Tarter
Aff. ¶¶ 17, 18; Filing 60-4, Davis Aff. ¶¶ 7, 13.) The reservation confirmation and
statement of accounts provided that “Sending payment constitutes acceptance and
agreement to the following terms . . . .,” two of which were that “[a]ll efforts will be
made in the event of service disruption to readily remedy problems through
arbitration” and the “[r]ental agreement is subject to the laws of Ontario, Canada where
[Rental Butler] is registered with the Travel Industry Council of Ontario.” (Filing 15-2,
at CM/ECF pp. 2, 4.) On September 30, 2014, Davis wired the remaining balance
($24,890) to Rental Butler’s bank in Canada. (Filing 15-1, Tarter Aff. ¶ 22.)
Davis alleges that, contrary to Rental Butler’s representations, he and his family
did not receive a “full-time private chef”; the “meals he had requested”; the “food
provisions” he wanted; a “concierge”; a “villa manager”; and “typical exercise
equipment.” Further, Davis claims that the defendants “provided [him] with a cold hot
tub” and a property “overrun with the . . . caretaker’s unrestrained dogs.” (Filing 3,
Amended Complaint ¶ 15(a)-(g).)
Davis filed this lawsuit for breach of contract and for fraudulent or negligent
misrepresentation against Rental Butler, Carimo, and Wachs. (Filing 3, Amended
Complaint.) Davis claims damages in the amount of $110,868, consisting of $49,780
in rental costs, $4,000 for food, and $57,088 for transportation to the property. (Filing
3, Amended Complaint at CM/ECF p. 10.)
II. DISCUSSION
To survive a motion to dismiss for lack of personal jurisdiction, the plaintiff
must make a prima facie showing of personal jurisdiction over the defendant.
Fastpath, Inc. v. Arbela Tech. Corp., 760 F.3d 816, 820 (8th Cir. 2014). “A plaintiff’s
prima facie showing must be tested, not by the pleadings alone, but by affidavits and
exhibits supporting or opposing the motion.” Id. (internal quotation marks and citations
3

omitted). To determine whether a plaintiff has asserted a prima facie case, the court
views the evidence in the light most favorable to the plaintiff and resolves all factual
conflicts in the plaintiff’s favor. Id.
Analyzing personal jurisdiction2 is a two-step process. First, the court must
determine whether the forum state’s long-arm statute has been satisfied. Second, the
court must decide whether exercising jurisdiction comports with the requirements of
due process. Because Nebraska has construed its long-arm statute to permit jurisdiction
to the limits of due process, it is only necessary to decide “whether the exercise of
personal jurisdiction over [the defendants] violates due process.” Stanton v. St. Jude
Medical, Inc., 340 F.3d 690, 693 (8th Cir. 2003).
Due process requires that the defendant have sufficient minimum contacts with
the forum state such that “maintenance of the suit does not offend traditional notions
of fair play and substantial justice” and a non-resident defendant “should reasonably

2

The Supreme Court has recognized two types of personal jurisdiction—
general and specific. Daimier AG v. Bauman, 134 S. Ct. 746, 754, 761 (2014)
(specific jurisdiction is at issue when a suit arises out of or relates to the defendant’s
contacts with the forum; general jurisdiction involves determining whether a
defendant foreign corporation’s affiliations with the forum are “so continuous and
systematic as to render it essentially at home in the forum State,” like the place of
incorporation or principal place of business (internal quotation marks and citations
omitted)). While Plaintiff’s initial brief in opposition to the pending motions to
dismiss requested permission to perform jurisdictional discovery because, among
other reasons, “it is conceivable that Rental Butler has contacts with Nebraska
sufficient to establish general jurisdiction,” (Filing 20 at CM/ECF p. 11), Plaintiff’s
brief submitted post-discovery does not make a general-jurisdiction argument. (Filing
59.) “When a cause of action arises out of or is related to a defendant’s contacts with
the forum state, the exercise of personal jurisdiction is one of specific jurisdiction.”
Epps v. Steward Info. Svs. Corp., 327 F.3d 642, 648 (8th Cir. 2003) (citing
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984);
Burlington Indus., Inc. v. Maples Indus., Inc., 97 F.3d 1100, 1103 (8th Cir.1996)).
4

anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 292, 297 (1980) (internal quotation marks and citations omitted);
Fastpath, Inc., 760 F.3d at 820. “Minimum contacts is based on the notion that ‘those
who live or operate primarily outside a State have a due process right not to be
subjected to judgment in its courts as a general matter.’” Fastpath, Inc., 760 F.3d at
820 (quoting J. McIntyre Mach., Ltd. v. Nicastro, 131 S. Ct. 2780, 2787 (2011)).
“Sufficient minimum contacts requires 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.’” Id. at 821 (quoting J. McIntyre,
131 S. Ct. at 2787). “The purposeful availment requirement ensures that a defendant
will not be haled into a jurisdiction solely as the result of random, fortuitous, or
attenuated contacts or of the unilateral activity of another party or a third person.” Id.
(internal quotation marks and citations omitted). “For a State to exercise jurisdiction
consistent with due process, the defendant’s suit-related conduct must create a
substantial connection with the forum State. This means that the relationship must
arise out of contacts that the defendant himself creates with the forum State.” Id.
(internal quotation marks and citations omitted).
To determine the sufficiency of a non-resident defendant’s contacts with the
forum state, the Eighth Circuit Court of Appeals uses a five-factor test: “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. We give
significant weight to the first three factors.” Id. (internal quotation marks and citations
omitted).
A. Defendant Rental Butler
Rental Butler is a citizen of Canada, and its principal place of business is in
Ontario, Canada. Rental Butler is incorporated under the laws of the province of
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Ontario and is registered with the Travel Industry Council of Ontario. Rental Butler
does not own real property or bank accounts in the State of Nebraska, is not registered
to do business in Nebraska, and has no registered agent in Nebraska. Rental Butler
does not have any offices or employees in Nebraska. In neither the booking
confirmation and statement of accounts, nor in the parties’ email and telephone
communication, did Rental Butler consent to be subjected to the Nebraska courts. No
agent or representative of Rental Butler traveled to Nebraska to conduct business with
Davis, or for any other reason. Rental Butler does not, and never has, directed sales,
marketing, or advertising to Nebraska and has never contracted to provide services or
goods in Nebraska. Rental Butler has booked thousands of vacations for customers
from around the world, and Davis is Rental Butler’s only customer from Nebraska.
(Filing 15-1, Tarter Aff. ¶¶ 2-10, 28-29; Filing 60-2, Ex. B, Rental Butler’s Resp. to
Pl.’s Interrog. No. 15.)
Rental Butler operates a website, www.rentalbutler.com, which provides general
information regarding rental properties. Visitors to the site cannot book a reservation
or purchase any services through the site; rather, interested visitors must call or email
Rental Butler in Canada to do so. (Filing 28-1, Second Tarter Aff. ¶ 3.) Rental Butler
does not actively market its website, but instead relies on customer inquiries and leads
from third-parties. (Filing 60-2, Ex. B, Rental Butler’s Resp. to Pl.’s Interrog. No. 15.)
Although Rental Butler exchanged emails with Henry Davis, who signed his
emails with his work address at Greater Omaha Packing, Inc., in Omaha, Nebraska,
Rental Butler was unaware of Davis’s personal address and residence before, during,
and after booking. (Filing 28-1, Second Tarter Aff. ¶¶ 6-10.) At Rental Butler,
“[a]ddress information is only collected when a prospective customer submits the
billing address for their credit card. . . . Unless a customer provides Rental Butler with
their credit card billing address, Rental Butler would not be aware and/or collect their
physical address. However, [Davis] failed or refused to provide his address despite
being asked multiple times. Most customers use a credit card to pay their deposit;
however, some like [Davis], pay using wire transfer. Because address information is
6

not required for customers to contact Rental Butler, the company would not be aware
of residency of prospective customers . . . .” (Filing 60-2, Ex. B, Rental Butler’s Resp.
to Pl.’s Interrog. No. 8.)
Rental Butler does not advertise using mail, email, fax, or telephone; rather, it
emails a newsletter to past customers and individuals who have provided their email
address to Rental Butler. Independent third-party companies that generate leads
through their own methods sell Rental Butler potential leads, for which Rental Butler
typically pays a fixed sum. (Filing 60-2, Ex. B, Rental Butler’s Resp. to Pl.’s Interrog.
No. 15.)
Based on this evidence, taken in the light most favorable to the plaintiff, I
conclude that defendant Rental Butler, a Canadian company with no connection to
Nebraska, has not taken purposeful or deliberate action aimed at Nebraska or its
residents that creates a substantial connection with Nebraska such that Rental Butler
can fairly be characterized as having invoked the benefits and protections of this state’s
laws. Hanson v. Denckla, 357 U.S. 235, 253 (1958). Specifically, this court’s exercise
of jurisdiction in this case would violate due process because (1) Rental Butler does
not have minimum contacts with Nebraska and (2) maintaining the suit in Nebraska
will offend traditional notions of fair play and substantial justice. See World-Wide
Volkswagon Corp., 444 U.S. at 291-92.
1. The Factors
The nature, quality, and quantity of Rental Butler’s contacts with Nebraska are
insufficient to support the exercise of personal jurisdiction over it. Davis has presented
evidence of 55 emails and 5 telephone calls between Davis’s family and Rental Butler
regarding a one-time vacation rental outside the United States. The only reason Rental
Butler began corresponding with Davis and his family was because Davis initiated the
contact. There is no evidence of Rental Butler’s intent to generally serve the Nebraska

7

market—to the contrary, this was a one-time sale to one Nebraska customer initiated
by that customer.
Davis cannot be “‘the only link between the defendant and the forum. To find
otherwise would ‘improperly attribute[] a plaintiff’s forum connections to the
defendant and make[] those connections decisive in the jurisdictional analysis.’”
Fastpath, Inc., 760 F.3d at 823 (quoting Walden, 134 S. Ct. at 1125). See also
Fastpath, Inc., 760 F.3d at 820, 823 (quoting Walden, 134 S. Ct. at 1121, 1122) (“‘our
minimum contacts analysis looks to the defendant’s contacts with the forum State
itself, not the defendant’s contacts with persons who reside there’”; “‘the relationship
must arise out of contacts that the defendant himself creates with the forum State”);
Scullin Steel Co. v. Nat’l Ry. Utilization Corp., 676 F.2d 309, 313 (8th Cir. 1982)
(“Merely entering into a contract with a forum resident does not provide the requisite
contacts between a nonresident defendant and the forum state.”) (internal quotation
marks, parentheses, and citation omitted); Gray v. Lewis & Clark Expeditions, Inc., 12
F. Supp. 2d 993 (D. Neb. 1998) (Nebraska could not exercise personal jurisdiction
over nonresident corporation for injuries incurred during Wyoming river-rafting trip
where corporation advertised in national publications, maintained an 800 number, and
accepted plaintiff’s reservation and credit card number over the telephone during a call
plaintiff initiated; “this lone contact initiated by [the plaintiff] must be characterized
as an isolated one that does not show purposeful availment of the Nebraska market”).
Davis’s causes of action are related to Rental Butler’s email and telephone
contact with Davis and his family only in the sense that Davis’s breach of contract and
misrepresentation claims are predicated on promises made during the parties’ pre-trip
communications. However, because the causes of action accrued in St. Martin when
the Davis family actually experienced sub-par amenities at the rental property, Davis’s
claims cannot be characterized as arising out of the act of emailing or speaking on the
telephone—that is, any alleged breach of the parties’ agreement occurred outside
Nebraska. Gray, 12 F. Supp. 2d at 998 (Nebraska plaintiffs’ negligence action for
injuries occurring on river rafting trip did not arise out of plaintiffs placing telephone
8

reservation with defendant Wyoming rafting company; defendant’s duty arose when
plaintiffs boarded rafts, “not when one of them picked up a phone hundreds of miles
distant and days earlier”).
While Nebraska obviously has an interest in providing its residents with a
forum, that interest “cannot make up for the absence of minimum contacts.” Fastpath,
Inc., 760 F.3d at 824 (internal quotation marks and citation omitted). “The same is
true of the last factor—party convenience. That [Nebraska] may be a more convenient
forum for [Davis] does not mean that [Nebraska] courts have personal jurisdiction over
[Rental Butler].” Id.
2. Emails, Telephone Calls & Website
Plaintiff Davis argues that Rental Butler availed itself of this court’s jurisdiction
when it “continually communicated with Davis and his family, made
misrepresentations directed at a Nebraska resident, made misrepresentations [a]ffecting
only those located in Nebraska, and maintained an interactive website which could be
accessed in Nebraska.” (Filing 59, Pl.’s Br. at CM/ECF p. 5; Filing 20, Pl.’s Br. at
CM/ECF pp. 4-5.) Davis maintains that during the course of vacation planning and
booking, Rental Butler exchanged approximately 55 emails with Davis and his family,
who were located in Nebraska, and participated in at least 5 telephone calls with
Davis’ companion, Dawn Busenbark. (Filing 59, Pl.’s Br. at CM/ECF p. 6.)
“Although letters and faxes may be used to support the exercise of personal
jurisdiction, they do not themselves establish jurisdiction.” Fastpath, Inc., 760 F.3d at
824 (defendant’s emails and phone calls to plaintiff in Iowa insufficient to establish
personal jurisdiction) (internal quotation marks and citation omitted). “However,
frequent communications, when taken together with some other action directed toward
the forum state, may help establish sufficient minimum contacts.” Venteicher v.
Smyrna Air Ctr., Inc., No. 8:09CV272, 2009 WL 3254498, at *4 (D. Neb. Oct. 8,
2009) (citing Northwest Airlines, Inc. v. Astraea Aviation Servs. Inc ., 111 F.3d 1386,
9

1390 (8th Cir. 1997)) (emphasis added) (multiple emails and phone calls between
Tennessee corporation and Nebraska resident established personal jurisdiction in
Nebraska when Tennessee corporation advertised aircraft for sale on its website,
negotiated purchase knowing buyer was located in Nebraska, physically delivered
aircraft to Nebraska for inspection after which parties closed on purchase and
exchanged money; noting that “the most basic obligations of the contract were to be
performed and actually were performed in Nebraska” and “[t]he contract contemplated
results in Nebraska, and each party’s performance took place in Nebraska”).
In the absence of other activity directed at the Nebraska forum at large, Rental
Butler’s emails and telephone calls with Davis and his family cannot establish personal
jurisdiction in Nebraska. See Eagle Tech. v. Expander Americas, Inc., 783 F.3d 1131,
1137 (8th Cir. 2015) (“telephone calls, written communications, and even wire-transfers
to and from a forum state do not create sufficient contacts to comport with due process
such that a foreign corporation could reasonably anticipate being haled into court
there” (internal quotation marks and citation omitted)); Viasystems, Inc. v. EBM-Papst
St. Georgen GmbH & Co., KG, 646 F.3d 589, 594 (8th Cir. 2011) (no personal
jurisdiction where non-resident defendant’s contacts consisted of scattered emails,
phone calls, and a wire-transfer of money to forum state); Burlington Indus. v. Maples
Indus., 97 F.3d 1100, 1103 (8th Cir. 1996) (100 telephone calls by defendant to
plaintiff were “insufficient, alone, to confer personal jurisdiction” (citation omitted));
Digi-Tel Holdings, Inc. v. Proteq Telecomms. (PTE), Ltd., 89 F.3d 519, 523 (8th Cir.
1996) (affirming district court’s dismissal for lack of personal jurisdiction where
non-resident defendant’s contacts with forum state consisted of numerous faxes and
letters, several phone calls in connection with the contract in dispute, and
choice-of-law provision).
Davis also submits that this court has personal jurisdiction over Rental Butler
“due to the level of interactivity of its website”—specifically, the website’s “live chat”
feature that allows Rental Butler’s representatives to talk with potential customers over
its website, an information-collection page that allows potential customers to input his
10

or her contact information, and a feature that allows customers to input their flight
arrival information. (Filing 59, Pl.’s Br. at CM/ECF pp. 11-13.)
When analyzing whether a website can provide sufficient contacts for specific
personal jurisdiction, the Eighth Circuit Court of Appeals looks to the “Zippo test,”
which is a “‘sliding scale’ to measure the likelihood of personal jurisdiction.” Johnson
v. Arden, 614 F.3d 785, 796 (8th Cir. 2010) (quoting Zippo Mfg. Co. v. Zippo Dot Com,
Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997)).
“At one end of the spectrum are situations where a defendant clearly does
business over the Internet. If the defendant enters into contracts with
residents of a foreign jurisdiction that involve the knowing and repeated
transmission of computer files over the Internet, personal jurisdiction is
proper. At the opposite end are situations where a defendant has simply
posted information on an Internet Web site which is accessible to users
in foreign jurisdictions. A passive Web site that does little more than
make information available to those who are interested in it is not
grounds for the exercise [of] personal jurisdiction. The middle ground is
occupied by interactive Web sites where a user can exchange information
with the host computer. In these cases, the exercise of jurisdiction is
determined by examining the level of interactivity and commercial nature
of the exchange of information that occurs on the Web site.”
Lakin v. Prudential Sec., Inc., 348 F.3d 704, 710-11 (8th Cir. 2003) (quoting Zippo, 952
F. Supp. at 1124).
First, there is no evidence that all of the features Davis characterizes as
“interactive” were available on Rental Butler’s website at the time Davis negotiated
and booked his reservation and stayed in St. Martin; even if those features were
available, there is no evidence Davis used them.3 Most importantly for minimum-

3

See Filing 60-2, Rental Butler’s Resp. to Pl.’s Interrogs. No. 3 (“Plaintiff did
not use live chat, nor is Rental Butler aware of anyone from Nebraska using chat.”),
No. 4 (“Plaintiff contacted Rental Butler via telephone and did not use the website to
11

contacts purposes, there is no evidence whatsoever that Rental Butler’s website was
deliberately directed at Nebraskans, and therefore no showing that Rental Butler
purposefully availed itself of the Nebraska market. Fastpath, Inc., 760 F.3d at 824
(“While [the defendant’s] website and public webinar may have been accessed by
plaintiff in Iowa and may have reached potential Iowa customers, nothing suggests that
[the defendant’s] marketing efforts were actively, exclusively, or even predominantly
targeted at Iowa customers. Instead, [the defendant’s] contacts with Iowa were merely
incidental and did not constitute a deliberate and substantial connection with the state
such that [the defendant] could reasonably anticipate being haled into court there.”)
(internal quotation marks and citations omitted).
Second, there is no evidence that Rental Butler conducts business through its
website with Nebraska residents—or residents of any state—by transmitting computer
files back and forth through its website. Rather, the evidence establishes that Rental
Butler’s website displays general information regarding rental properties, but visitors
to the site cannot book reservations or purchase services through the site; instead,
interested visitors must call or email Rental Butler in Canada. “[A] website’s capacity
to receive a message from a viewer does not make the website more than passive.
Courts have held that a website is still considered passive and insufficient to confer
jurisdiction where, as here, the only purported exchange of information available on
the website is a direct link allowing a user to contact the seller and does not allow for
any part of a transaction to occur online.” Nebraska Mach. Co. v. Erickson Prods.,
Inc., No. 8:14CV91, 2014 WL 6980258, at *5 (D. Neb. Dec. 8, 2014) (internal
quotation marks and citations omitted).

submit his information.”), No. 5 (“an individual cannot submit a reservation through
the website. . . . Rental Butler’s website did not have the form or capability to collect
a customer’s reservation information until the Spring of 2014, i.e., well after Plaintiff
booked and completed his vacation.”).
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Because Rental Butler’s passive website does little more than make information
available to—and receive emails and telephone calls from—those who are interested
in island property rentals, Rental Butler’s website is not grounds for the exercise of
personal jurisdiction.
3. Place of Contracting
Plaintiff Davis also asserts that Rental Butler has minimum contacts with
Nebraska because the reservation confirmation and statement of accounts from Rental
Butler to Davis provided that “[s]ending payment constitutes acceptance and
agreement,” and Davis performed his obligation under the contract when he wired
payment from Nebraska to Rental Butler in Canada. (Filing 20, Pl.’s Br. at CM/ECF
p. 6; Filing 59, Pl.’s Br. at CM/ECF pp. 8-9; Filing 60-5 at CM/ECF p. 2.)
Because “[p]ersonal jurisdiction . . . does not turn on mechanical tests or on
conceptualistic theories of the place of contracting or of performance,” the location in
which Davis completed his obligations under the contract is irrelevant to the personaljurisdiction inquiry. Fastpath, Inc., 760 F.3d at 821 & 824 n.4 (stating that “even if
the contract had been formed in [the forum state] . . . that would not vest [the forum’s]
courts with personal jurisdiction over [the defendant] in this case”) (internal quotation
marks and citations omitted).
4. Effects of Tortious Activity Felt in Nebraska
Finally, Davis argues that under the “Calder effects test,”4 personal jurisdiction
exists “when a defendant’s tortious actions are directed at residents of the forum state
where the brunt of the harm is felt.” (Filing 59, Pl.’s Br. at CM/ECF pp. 10-11.) Here,
Davis asserts, Rental Butler’s misrepresentations were purposely directed at him, a
Nebraska resident, and Davis felt the monetary loss from this transaction in Nebraska.
4

See Calder v. Jones, 465 U.S. 783, 789-90 (1984).
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“Due process allows a state to assert personal jurisdiction over a defendant
based on the in-state effects of defendants’ extraterritorial tortious acts only if those
acts (1) were intentional, (2) were uniquely or expressly aimed at the forum state, and
(3) caused harm, the brunt of which was suffered—and which the defendant knew was
likely to be suffered—in the forum state.” Viasystems, Inc., 646 F.3d at 594 (internal
quotation marks, alterations, and citations omitted). This test “allows the assertion of
personal jurisdiction over non-resident defendants whose acts are performed for the
very purpose of having their consequences felt in the forum state.” Johnson v. Arden,
614 F.3d 785, 796 (8th Cir. 2010).
The “effects test” does not establish personal jurisdiction in this case because
there is no evidence that Rental Butler’s purported misrepresentations have a
relationship to Nebraska, were aimed at Nebraska, and were intended to cause injury
in Nebraska. Further, any harm resulting from the allegedly disappointing chef,
missing groceries, unruly dogs, and cold hot tub was suffered in St. Martin, not in
Nebraska. Fastpath, Inc., 760 F.3d at 822 (in case where defendant had no employees
or offices in Iowa, never traveled to Iowa to execute agreement, and allegedly
breached contract outside Iowa, fact that Iowa company felt defendant’s breach “does
not mean that an Iowa court has jurisdiction over the non-resident defendant consistent
with due process”).
5. Conclusion
Because Davis has failed to make a prima facie showing of minimum contacts
between nonresident defendant Rental Butler and Nebraska, the forum state, this court
may not exercise personal jurisdiction over Rental Butler. See Eagle Tech. v.
Expander Americas, Inc., 783 F.3d 1131, 1136-37 (8th Cir. 2015) (Swedish corporation
did not have sufficient contacts with state of Missouri to justify exercise of personal
jurisdiction when Swedish corporation had business relationship with consulting
company in Missouri, but was not licensed to do business in Missouri, did not
advertise or send employees to Missouri, and no money was received or sent to the
14

state); Dairy Farmers of America, Inc. v. Bassett & Walker Intern., Inc., 702 F.3d 472
(8th Cir. 2012) (affirming dismissal for lack of personal jurisdiction when defendant
Canadian commodities broker had business relationship with Missouri cooperative
resulting in 80 transactions totaling $5 million and parties communicated by phone,
email, and fax regarding delivery and billing, but Canadian corporation was not
qualified to do business in Missouri forum; had no agent for service of process, offices,
property, bank accounts, telephone listings, or employees in Missouri; did not
advertise or promote its business in Missouri; and no employee ever entered the state);
Austad Co. v. Pennie & Edmonds, 823 F.2d 223, 226-27 (8th Cir. 1987) (although New
York law firm visited client in South Dakota to review documents, placed telephone
calls to client in South Dakota, sent bills to client and received payment from South
Dakota bank, New York law firm did not have sufficient minimum contacts with South
Dakota because firm did not maintain office there, attorneys did not reside or hold law
license there, firm did not advertise or solicit business in South Dakota, firm did not
“actively seek out” South Dakota client, and actions giving rise to lawsuit took place
outside of South Dakota).
B. Defendants Carimo and Wachs
Davis asserts two theories of personal jurisdiction over defendants Carimo and
Wachs: (1) agency and (2) Carimo’s independent contacts with Nebraska. Davis first
argues that Rental Butler’s contacts with Nebraska are imputed to Carimo and Wachs
because an agency relationship existed between Rental Butler and Carimo and a subagency relationship existed between Rental Butler and Wachs. (Filing 31, Pl.’s Br. at
CM/ECF pp. 7-13; Filing 59, Pl.’s Br. at CM/ECF pp. 2, 19-22, 24-27; Filing 31, Pl.’s
Br. at CM/ECF pp. 8-12.) Alternatively, Davis contends that this court has jurisdiction
over Carimo by virtue of Carimo’s independent contacts with Nebraska. (Filing 59,
Pl.’s Br. at CM/ECF pp. 22-23.)

15

1. Agency
Davis argues that “Rental Butler’s contacts with Nebraska are imputed to
Carimo” because “Rental Butler acted as Carimo’s agent when it rented the [p]roperty
to Davis.” (Filing 59, Pl.’s Br. at CM/ECF pp. 22, 25.) Further, Davis continues,
Carimo was Wachs’s agent for purposes of renting Wachs’s property, so “Rental
Butler’s contacts with Nebraska are therefore imputed to Wachs.” (Id. at CM/ECF p.
26.)
“Agency relationships . . . may be relevant to the existence of specific
jurisdiction.” Daimier AG, 134 S. Ct. at 759 n.13 (emphasis in original). However,
even assuming an agency relationship exists between the defendants, and as discussed
in detail above, Rental Butler does not have sufficient minimum contacts with
Nebraska to “impute” to Carimo and Wachs.
2. Carimo’s Contacts
Finally, Davis argues that Carimo’s contacts with Nebraska support exercising
personal jurisdiction over it.
Carimo is a French company with its headquarters and only office in St. Martin.
Carimo rents, manages, and sells real estate only in St. Martin. Carimo does not have
a registered agent in Nebraska, nor is it registered to do business in Nebraska. Carimo
does not own, rent, or lease property in Nebraska; does not own personal property in
Nebraska; does not have any bank accounts in Nebraska; does not pay taxes to any
governmental agency in Nebraska; and does not have any employees in Nebraska.
Carimo does not, and never has, directed its sales or marketing efforts at Nebraska.
(Filing 19-2, Decl. Nick Guezen.)
Carimo does not advertise in Nebraska; rather, it provides information about its
rentals in brochures that it distributes only on the island of St. Martin. Carimo also
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maintains a website that provides information about its rentals. Customers cannot book
reservations through Carimo’s website, and no sales are conducted through it. Carimo
rents its properties directly or through third-party wholesalers, and the vast majority
of Carimo’s sales are obtained as a result of third-party wholesalers approaching
Carimo about securing rental properties. Carimo does not maintain records of its
renters’ primary residence. (Id.)
Rental Butler contacted Carimo about renting the St. Martin property for Davis
and his family from December 29, 2013, through January 5, 2014. Rental Butler
earned $8,200 for this rental, paid via wire transfer by Henry Davis. Rental Butler then
paid Carimo for its share of the booking amount. Except for receipt of the summons
in this lawsuit and what Davis may have viewed on its website, Carimo has had no
communications with Davis, nor has Carimo contracted with Davis. (Id.)
In short, Carimo’s contacts with Nebraska are even fewer than Rental Butler’s
contacts and, for the reasons discussed above with regard to Rental Butler, are not
sufficient for this court to exercise personal jurisdiction over it consistent with the
requirements of due process.
Accordingly,
IT IS ORDERED:
1.
The defendants’ motions to dismiss (Filings 13 & 17) based on lack of
personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2) are granted;
2.
Judgment will be entered by separate document dismissing this case
without prejudice.
DATED this 17th day of July, 2015.

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BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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