Steven M. Johnson, PC v. Drake

Filing 21

Memorandum Opinion and Order...deft's motion to dismiss for lack of personal jurisdiction is granted and that all claims of action asserted by pltf Steven M Johnson, against deft William Drake is dismissed for lack of in persona jurisdiction. (Ordered by Judge John McBryde on 11/25/2014) (wrb)

BY---;c:;:::::;----

Plaintiff,

vs.
WILLIAM DRAKE,
Defendant.

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NO. 4:14-CV-611-A

MEMORANDUM OPINION
and
ORDER
Came on for consideration in the above action the combined
motions of defendant, William Drake, to dismiss for lack of
personal jurisdiction, lack of subject matter jurisdiction, and
improper venue, or alternatively, to transfer venue.

Plaintiff,

Steven M. Johnson, PC, d/b/a The Johnson Law Firm, filed a
response, and defendant filed a reply.

Having considered all of

the parties' filings, plaintiff's first amended original
complaint, as well as the applicable legal authorities, the court
concludes that this action should be dismissed because of the
failure of plaintiff to establish the court's in personam
jurisdiction over defendant.'

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Although a federal court normally resolves doubts about its jurisdiction over subject matter
before addressing personal jurisdiction, the United States Supreme Court has recognized that "there is no
unyielding jurisdictional hierarchy." Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 578 (1999).
Because in personam jurisdiction is so clearly absent here, the court will resolve that issue first.

I.

Nature of Litigation
Plaintiff alleged that subject matter jurisdiction exists by
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reason of diversity of citizenship pursuant to 28 U.S.C.

§

1332(a) (1) because the amount in controversy exceeds the sum or
value of $75,000, exclusive of interests and costs, and is
between citizens of different states.

Specifically, the amended_

complaint alleged that plaintiff is a citizen of Texas and
defendant is a citizen of Minnesota.

Although the amended

complaint discussed the basis of plaintiff's contention
concerning the amount in controversy, and also gave the reasons
plaintiff contended that venue was proper in the Northern
District of Texas, no specific statement of the court's in
personam jurisdiction is found in the amended complaint.
As to the factual allegations of the amended complaint,
plaintiff contended that defendant previously had a defective
product surgically implanted into his body, which defendant
claimed caused him personal injuries.

On or about January 24,

2012, plaintiff and defendant entered into a written contract
titled "Attorney Representation Agreement" ("Contract") . '

'The amended complaint refers to the Attorney Representation Agreement as the "Contract."
consistency, the court will do likewise.

2

Fo~

The Contract provided for a contingent fee of forty percent
of all sums recovered on defendant's claims, plus all costs and
expenses advanced by plaintiff, and, a lien on defendant's claims,
proceeds, or judgments recovered in connection therewith.

The

Contract included a Texas choice-of-law provision, and provided
that all disputes between plaintiff and defendant arising out of
the Contract would be resolved through arbitration in Fort Worth,
Texas.

On or about November 30, 2012, defendant sent written

notice to plaintiff terminating plaintiff's representation under
the Contract.
Plaintiff's amended complaint included an application to
compel arbitration, and alternative request for a declaratory
judgment that plaintiff is entitled to recover forty percent of
all sums recovered on defendant's claims related to the defective
product.
II.

Grounds of Defendant's Motion
In his motion, defendant first asserted that this action
should be dismissed because the court lacks personal jurisdiction
over him.

Defendant additionally argued that subject matter

jurisdiction is lacking because this action is not ripe for
adjudication, and because plaintiff cannot establish the
requisite amount in controversy.

Finally, defendant maintained
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that this action should be dismissed because venue is not proper
in this district, or, if not dismissed, the action should be
transferred to the Northern District of Ohio where the multi--------:-;--:--~--::-:-~~:-------::---:------=-:-::--:--:---:-::-----:---::--;--­

district litigation panel has consolidated all cases involving

the alleged defective product that is the subject of defendant's
underlying claim.
III.

Analysis
A.

Law Applicable to Personal Jurisdiction
When a nonresident defendant presents a motion to dismiss

for lack of personal jurisdiction, the plaintiff bears the burden
of establishing that in personam jurisdiction exists.

Wilson v.

Belin, 20 F.3d 644, 648 (5th Cir. 1994); Stuart v. Spademan, 772
F.2d 1185, 1192 (5th Cir. 1985).

The plaintiff need not,

however, establish personal jurisdiction by a preponderance of
the evidence; at this stage,' prima facie evidence of personal
jurisdiction is sufficient.

WNS, Inc. v. Farrow, 884 F.2d 200,

203 (5th Cir. 1989); Wyatt v. Kaplan, 686 F.2d 276, 280 (5th
1982).

Cir~

The court may resolve a jurisdictional issue by reviewing

pleadings, affidavits, exhibits, any part of the record, and any
combination thereof.

Command-Aire Corp. v. Ontario Mech. Sales &

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Eventually, plaintiff must prove by a preponderance of the evidence that jurisdiction exists.
See DeMelo v. Toche Marine, Inc., 711 F.2d 1260, 1271 n.12 (5th Cir. 1983).

4

Serv., Inc.,

963 F.2d 90, 95 (5th Cir. 1992),

Allegations of the

plaintiff's complaint are taken as true except to the extent that
they are contradicted by defendant's affidavits.
at 282-83 n.13
683 n.3

Wyatt, 686 F.2d

(citing Black v. Acme Mkts., Inc., 564 F.2d 681,

(5th Cir. 1977)).

Any genuine, material conflicts

between the facts established by the parties' affidavits and
other evidence are resolved in favor of plaintiff for the
purposes of determining whether a prima facie case exists.

Jones

v. Petty-Ray Geophysical Geosource, Inc., 954 F.2d 1061, 1067
(5th Cir. 1992); Bullion v. Gillespie, 895 F.2d 213, 217 (5th
Cir. 1990).
In a diversity action, personal jurisdiction over a
nonresident may be exercised if (1) the nonresident defendant is
amenable to service of process under the law of a forum state,
and (2) the exercise of jurisdiction under state law comports
with the due process clause of the Fourteenth Amendment.

Wilson,

20 F.3d at 646-47; Thompson v. Chrysler Motors Corp., 755 F.2d
1162, 1166 (5th Cir. 1985)

(quoting Smith v. DeWalt Prods. Corp.,

743 F.2d 277, 278 (5th Cir. 1984)).

Since the Texas long-arm

statute has been interpreted as extending to the limits of due
process,• the only inquiry is whether the exercise of

' See. e.g., Guardian Royal Exchange Assurance Ltd. v. English China Clays. P.L.C., 815
S.W.2d 223,226 (Tex. 1991); Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex. 1990).

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jurisdiction over the nonresident defendant would be
constitutionally permissible.

Bullion, 895 F.2d at 216; Stuart,

772 F.2d at 1189.
For due process to be satisfied,

(1) the nonresident

defendant must have "minimum contacts" with the forum state
resulting from an affirmative act on the defendant's part, and
(2) the contacts must be such that the exercise of jurisdiction
over the person of the defendant does not offend "traditional
notions of fair play and substantial justice."
Washington, 326 U.S. 310, 316 (1945)

Int'l Shoe Co. v.

(quoting Milliken v. Meyer,

311 u. s . 4 57' 4 6 3 ( 194 0) ) .
The minimum contacts prong of the due process requirement
can be satisfied by a finding of either "specific" or "general"
jurisdiction over the nonresident defendant.
at 216.

Bullion, 895 F.2d

For specific jurisdiction to exist, the foreign

defendant must purposefully do some act or consummate some
transaction in the forum state and the cause of action must arise
from or be connected with such act or transaction.
Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985).

Burger King

Even if the

controversy does not arise out of or relate to the nonresident
defendant's purposeful contacts with the forum, general
jurisdiction may be exercised when the nonresident defendant's
contacts with the forum are sufficiently continuous and
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systematic as to support the reasonable exercise of jurisdiction.
See, e.g., Helicopteros Nacionales de Colombia, S.A. v. Hall, 466
U.S. 408, 416 (1984); Perkins v. Benguet Consol. Mining Co., 342,
U.S. 437 (1952).

When general jurisdiction is asserted, the

minimum contacts analysis is more demanding and requires a
showing of substantial activities within the forum state.

Jones,

954 F.2d at 1068.
The second prong of the due process analysis is whether
exercise of jurisdiction over the nonresident defendant would
comport with traditional notions of fair play and substantial
justice.

International Shoe, 326 U.S. at 316.

Once the

plaintiff establishes the existence of minimum contacts, the
defendant then has the burden to show that the assertion of
jurisdiction does not offend traditional notions of fair play and
substantial justice.

Asahi Metal Indus. Co. v. Superior Court,

480 U.S. 102, 113 (1987)

(citing World-Wide Volkswagen Corp. v.

Woodson, 444 U.S. 286, 292 (1980)).
B.

Evidence Presented by the Parties on the In Personam Issue
1.

Jurisdictional Facts in Defendant's Declaration

Defendant is a resident of the state of Minnesota, where he
has lived for thirty-nine years.

Defendant has never lived or

conducted business in the state of Texas, and, aside from an
airport layover of a few hours, has never been to Texas.
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The underlying claim for which plaintiff is seeking fees
concerns a Johnson & Johnson DePuy ASR hip replacement implanted
in defendant in a hospital in Woodbury, Minnesota.

In late 2011,

defendant was watching television in his home in Minnesota and
saw an advertisement for a lawsuit involving that same product.
Defendant's wife, Andrea Drake ("Andrea"), called the number and
gave defendant's information.

Defendant did not know where the

law firm he called was located.
Soon thereafter defendant received an information packet
from plaintiff.

Defendant was under the impression that

plaintiff was the sole or primary attorney handling the class
action against Johnson & Johnson, and that plaintiff was the only
attorney who could represent defendant in that litigation.

Over

the course of the next few weeks defendant received several

call~

from plaintiff; plaintiff eventually told defendant it was urgent
that defendant sign and return the papers plaintiff sent him, as
the time to bring a complaint was running out.

Plaintiff signed

the Contract 5 in January 2012, in Minnesota, and returned the
document to plaintiff via United States mail.
Several weeks after defendant signed the Contract someone

'Defendant's declaration states that he signed the "complaint." However, consistent with
plaintiffs affidavit and the record in this action, it appears this is a misstatement, and that defendant was
referring to the Contract.

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from plaintiff's law firm called defendant asking about
defendant's original surgery.

Thereafter, defendant made a

number of calls to plaintiff, but received little response, and
received few updates regarding his case.

Defendant was unhappy

with the lack of updates and with the representation provided by
plaintiff, and was also dissatisfied with the methods plaintiff
used to gain his business.

Defendant learned that plaintiff was

not the only attorney handling DePuy ASR claims, and decided he '
wanted a local attorney.

Accordingly, on or around November 29,

2012, defendant terminated the Contract with plaintiff, and sent
written correspondence to that effect through his new counsel.
Defendant's hip was not revised at the time he terminated
the Contract.

As of the date defendant signed the declaration,

there has been no final settlement in his case, and he has
received no recovery as a result of the litigation.
2.

Jurisdictional Facts in Plaintiff's Affidavit

In September 2010, after defendant contacted plaintiff in
Texas regarding the DePuy ASR litigation, plaintiff sent a packet
of information to defendant.

In October 2010, defendant mailed

to plaintiff in Fort Worth copies of documents defendant had
received from DePuy's agent concerning his claims.
replied by mail.

Plaintiff

On October 18 and November 3, 2010, plaintiff

telephoned defendant concerning defendant's possible claims and
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physical condition.

On November 12, December 9, and December 17,

2010, plaintiff mailed updated information to defendant.
On November 23, 2010, plaintiff phoned defendant for a
follow-up conversation but had to schedule another follow-up
call.

On December 21, 2010, and January 4 and 17, 2011,

plaintiff initiated telephone conversations with Andrea and/or
defendant.

Plaintiff mailed additional information to defendant'

on May 9 and June 6, 2011, and contacted defendant by phone on
July 22, 2011, concerning the packet plaintiff sent him.

On

January 19, 2012, plaintiff mailed a request for updated
information to defendant.

Defendant mailed his packet, including

the signed Contract, back to plaintiff's office in Texas around
January 24, 2012.
On March 9, 2012, plaintiff mailed a confirmation of receipt
of the packet to defendant.

Plaintiff telephoned defendant on

April 26, 2012, and October 26, 2012, and had telephone contact
with Andrea on November 27, 2012, regarding updates on
defendant's case.
On November 28, 2012, Andrea telephoned plaintiff and
advised that defendant was scheduled for a revision on December
17, 2012, and that they were considering moving their case to a
local attorney friend.

On December 5, 2012, .defendant called

plaintiff and advised that he had decided to use a local
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attorney.

On December 6, 2012, plaintiff received a letter from·

defendant's new counsel, terminating plaintiff's representation.
C.

Application of the Law to the Facts of This Action

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Plaintiff is contending that the court

general jurisdiction over defendant.

~as

both specific and

However, plaintiff has

failed to make the required showing as to either.
The court begins with a discussion of well-settled
principles concerning the minimum contacts
jurisdiction.

It

a~d

specific

is well established that "[t] he unilateral

activities of those who claim some relationship with a
nonresident defendant cannot satisfy the requirement of contact
with the forum State."
1147 (5th Cir. 1985).

Patterson v. Dietze, .Inc., 764 F.2d 1145,
Likewise, "merely contracting with a

resident of the forum state is insufficient to subject the
nonresident to the forum's jurisdiction."

Holt Oil & Gas Corp.

v. Harvey, 801 F. 2d 773, 778 (5th Cir. 1986) . (citing Colwell
Realty Invs. v. Triple T Inns, 785 F.2d 1330, 1334 (5th Cir.
1986)); stuart, 772 F.2d at 1192-93.
The exchange of communications between a resident and
nonresident while developing a contract and the fact that a
contract exists between the nonresident defendant and a resident
of the forum state are also insufficient to establish the
necessary minimum contacts.

See,
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Holt, 801 F.2d at 778 (no

specific jurisdiction over nonresident defendant who entered into
a contract with a Texas resident, sent an agreement and checks to
Texas, and engaged in extensive telephonic and written
communication with the plaintiff in Texas); Hydrokinetics, Inc.
v. Alaska Mech., Inc., 700 F.2d 1026, 1029 (5th Cir. 1983)
(exchange of communications between Texas and Alaska in the
development of a contract insufficient to establish specific
jurisdiction); Stuart, 772 F.2d at 1192-94 (finding no specific
jurisdiction where nonresident defendant contracted with Texas
residents, directed letters and phone calls to Texas, and shipped
prototypes and products to Texas).
Application of the foregoing authorities to the facts now
before the court make clear that plaintiff has failed to
establish specific jurisdiction.

The only contacts alleged

between defendant and Texas occurred during the period of time
plaintiff was attempting to secure a representation agreement
with defendant, and a few after defendant signed the Contract.
All of defendant's contacts with Texas fall within the type that
the Fifth Circuit has held insufficient to establish specific
jurisdiction, and are even less than those in the abovereferenced cases where specific jurisdiction was found lacking.
In support of his contention that

speci~ic

jurisdiction

exists, plaintiff argued that defendant "purposefully consummated
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the Contract in Texas, and Plaintiff's claim arises directly from
Defendant's breach of that Contract."

Pl.'s Br. at 14.

However,

defendant in his declaration maintained that he signed the
Contract in Minnesota, and plaintiff has adduced no controverting
evidence.

Indeed, plaintiff's affidavit is consistent with

defendant's contentions, as he averred that defendant mailed the·
signed Contract from Minnesota to Texas.

Nor does plaintiff

explain how defendant purportedly breached the Contract, as it is
undisputed that defendant has not yet received any settlement
funds as a result of his participation in the DePuy litigation,
so there is no fee to receive.

And if plaintiff is contending

that defendant breached the Contract by terminating the
representation, he has directed the court to no provision therein
prohibiting or in any way restricting defendant from doing so.
Plaintiff fares no better in attempting to show general
jurisdiction, bearing in mind that the contacts necessary to
establish general jurisdiction must be substantially greater than
those necessary for specific jurisdiction.

Plaintiff summarizes·

the nature of defendant's contacts supporting general
jurisdiction as follows:
During the sixteen (16) months prior to contracting
with Plaintiff, beginning in September of 2010,
Defendant had eighteen (18) contacts with Plaintiff's
law firm, nine (9) by phone, and nine (9) by U.S. mail.
Between September 28, 2010 and January 19, 2012,
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Plaintiff sent at least eight documents.to Defendant on
Plaintiff's law firm letterhead identifying the law
firm as located in Ft. Worth, Texas. As early as
October 8, 2010, Defendant mailed information to
Plaintiff properly addressed to Plaintiff's address in
Ft.
Pl.'s App. at 7.

As an initial matter, it is undisputed that

plaintiff, through his television advertisement, reached out to
defendant in Minnesota.

This is not a case where defendant

initiated contact with plaintiff in Texas as a result of
defendant's desire to pursue litigation in Texas.

And nothing in

plaintiff's affidavit contradicts defendant's assertion that he
was unaware of plaintiff's location when Andrea made the first
phone call to plaintiff.

From defendant's perspective, he could

have been calling anywhere in the United States, rather than
purposefully reaching out to Texas.

That plaintiff happened to

reside in Texas does not support in personam jurisdiction.

Holt,

801 F.3d at 778.
Nor do the raw numbers cited above give the full picture of
defendant's purported contacts: of the eighteen contacts
plaintiff alleged occurred between he and defendant, plaintiff
appears to have originated all but a very few.

Plaintiff cannot

rely on his own contacts with defendant to establish the contacts
necessary for personal jurisdiction.

Plaintiff's contacts with

defendant do not show that defendant had continuous and

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systematic contact with the forum state.

In any event,

plaintiff's focus on the number of contacts misses the point: the
court is to be concerned not with the number of contacts, but
instead with the quality and nature of the activity pertaining to
the forum state.

stuart, 772 F.2d at 1194.

The quality and

nature of defendant's contacts here are minimal, at best, and do
not support the exercise of general jurisdiction over defendant.
Plaintiff also focuses on the Texas choice-of-law provision
in the Contract as supporting general jurisdiction.

However, the

Supreme Court noted that, although relevant, 'a choice-of-law
provision "standing alone" would be insufficient to confer
personal jurisdiction.

Burger King, 471 U.S. at 482.

The Court

in Burger King found that the choice-of-law provision supported
the exercise of in personam jurisdiction in conjunction with the
numerous, substantive contacts with the forum initiated by the
nonresident defendant, including the extensive negotiations
between the parties, as well as the "20-year interdependent
relationship" established by the parties' contract.
Nothing of the sort is alleged here.

It is undisputed that

defendant was seeking an attorney to represent him in conjunction
with a possibly defective hip implant; there was no prior
relationship between the parties, no long-term "interdependent"
relationship anticipated, and no other deliberate affiliations
15

with Texas on the part of defendant as would cause him to
reasonably anticipate being haled into a Texas court.

Nor was

anything in the Contract, including the choice-of-law and
arbitration provisions, the result of arms-length negotiations
between equally-situated parties, or any negotiations whatsoever.
All of the foregoing leads to but one conclusion: plaintiff'
has failed to show that defendant had sufficient contacts with
Texas to establish the court's in personam jurisdiction over
defendant.

Accordingly, the court is

dismis~ing

this action for

lack of personal jurisdiction.

* * * *
The court has considered the remaining grounds raised in the
combined motions, and finds that they appear,meritorious.
However, given the court's disposition of this action as
discussed above, the court finds it unnecessary to further
address those grounds in this memorandum opinion and order.
IV.

Order·
For the reasons given above,
The court ORDERS that defendant's motion to dismiss for lack
of personal jurisdiction be, and is hereby, granted, and that all
claims and causes of action asserte~ by plaintiff, Steven M.
Johnson, PC, d/b/a The Johnson Law Firm, against defendant,
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William Drake, be, and are hereby, dismissed for lack of in
personam jurisdiction.
SIGNED November 25, 2014.

JO~}T"'
uy~ d

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