United States District Court, N.D. Illinois
January 13, 2004.
George Mitchell, Plaintiff
Joy Shiffermiller, Defendant
The opinion of the court was delivered by: JAMES HOLDERMAN, District Judge
MEMORANDUM OPINION AND ORDER
On July 9, 2003, pro se plaintiff George Mitchell ("Mitchell") filed a
one-count complaint against defendant Joy Shiffermiller ("Shiffermiller")
alleging legal malpractice. On December 2, 2003, Shiffermiller moved,
pursuant to Federal Rule of Civil Procedure 12(b)(2), to dismiss
Mitchell's complaint for lack of personal jurisdiction. For the following
reasons, Shiffermiller's motion to dismiss is granted.
While living and working in Nebraska, Mitchell claimed that his
employer, Union Pacific Railroad ("UPR"), discriminated against him.
After filing a complaint with the Nebraska Equal Opportunity Commission
on January 7, 1997, Mitchell was discharged from his employment with UPR
on January 15, 1997, and moved to Chicago, Illinois. On December 4, 1998,
an Illinois resident, entered into a contingency fee agreement with
Shiffermiller, a licensed Nebraska attorney.
After Mitchell received a right to sue letter, on July 29, 1999,
Shiffermiller, on behalf of Mitchell, filed an employment discrimination
lawsuit against UPR in the United States District Court for the District
of Nebraska. During the course of the litigation, Shiffermiller mailed to
Mitchell in Illinois copies of court papers related to his litigation
against UPR. In addition, on at least eleven occasions, Shiffermiller
e-mailed Mitchell in Illinois requesting or providing information. From
January 29, 2001, to February 1, 2001, Mitchell's case against UPR was
tried to a jury in Nebraska, and Mitchell lost.
After the trial, Shiffermiller sought payment from Mitchell in Illinois
for mediation and trial expenses, and Mitchell paid these expenses.
Shiffermiller filed a post-trial motion for a new trial, which was
denied. Mitchell requested that Shiffermiller file an appeal, but
Shiffermiller declined, so Mitchell filed his own appeal with the United
States Court of Appeals for the Eighth Circuit. The Eighth Circuit
affirmed the trial court, and the United States Supreme Court denied
Mitchell's petition for writ of certiorari,
In this court, Mitchell alleges that Shiffermiller's quality of
representation was below that of a lawyer with ordinary training and
skill in the practice of law and that he was prejudiced by
Shiffermiller's inadequate representation. Specifically, Mitchell claims
that Shiffermiller did not: bring certain information to the trial
court's attention, including that Shiffermiller did not have proper
training and that the collective bargaining agreement required the
employer to make certain disclosures (Compl. ¶ 2); take depositions
or interrogatories of certain witnesses (Compl. ¶ 3); enter
transcripts of disciplinary hearings into evidence at trial (Compl.
¶ 3); adequately prepare for trial
(Compl. ¶ 3); request the recording of the voir dire;
examination (Compl. ¶ 4); present medical evidence to the jury
(Compl. ¶ 5); include all possible theories of relief (Compl. ¶
5); disclose that she sat on the same professional panel as the trial
judge (Compl. ¶ 6); introduce necessary evidence at trial (Compl.
¶ 7); accurately assess or compute the amount of Mitchell's damages
(Compl. ¶ 7); or present issues on appeal when requested by Mitchell
(Compl. ¶ 8). In sum, all of Mitchell's allegations center on
Shiffermiller pre-trial, trial, and post-trial conduct in Nebraska.
This court, sitting in Illinois, has personal jurisdiction over
Shiffermiller in this diversity action only if an Illinois state court
would have jurisdiction over her. RAR, Inc. v. Turner Diesel
Ltd., 107 F.3d 1272, 1275 (7th Cir. 1997). Mitchell has the bur den
of making a prima facie showing of personal jurisdiction. Id.
at 1276. In determining whether Mitchell has met this burden, this court
must examine three distinct issues; (1) state statutory law, (2) state
constitutional law, and (3) federal constitutional law. Id
Mitchell must satisfy each of these, and if any one is lacking, this
court does not have personal jurisdiction over Shiffermiller. As the
Seventh Circuit has explained, however, "[b]ecause the Illinois [long
arm] statute authorizes personal jurisdiction to the constitutional
limits, the three inquiries . . . collapse into two constitutional
inquiries-one state and one federal." Id. Each will be
I. Illinois Constitution
As the Seventh Circuit has recognized, "Illinois courts have given
little guidance as to how state due process protection differs from
federal protection in the context of personal jurisdiction." Id
The Illinois Supreme Court has held that "[j]urisdiction is to be
asserted only when it is fair, just, and reasonable to require a
nonresident defendant to defend an action in Illinois, considering the
quality and nature of the defendant's acts which occur in Illinois
or which affect interests located in Illinois." Rollins v.
Ellwood. 141 Ill.2d 244, 275, 565 N.E.2d 1302; 1316 (1990),
Mitchell, in his response to Shiffermiller's motion to dismiss, does
not address this state constitutional limitation on personal
jurisdiction. Much of the discussion below, with respect to the United
States Constitution, applies here. It seems to this court to be unfair,
unjust, and unreasonable to require Shiffermiller, a Nebraska attorney,
to defend a legal malpractice action in this court when all of the
alleged acts of malpractice took place, in Nebraska, while none occurred
in Illinois, and Shiffermiller had a few isolated, ancillary
communications with Mitchell in Illinois. However, because personal
jurisdiction jurisprudence under the Illinois Constitution has not been
greatly developed, this court will also address the federal
II. United States Constitution
Most clearly, Mitchell fails to make a prima facie showing that this
court's exercise of personal jurisdiction over Shiffermiller would not
violate the United States Constitution's Fourteenth Amendment Due Process
Clause. Under the due process clause, a defendant must have "certain
minimum contacts with [the forum state] such that the maintenance of the
suit does not offend `traditional notions of fair play and substantial
justice,'" International Shoe Co. v. Washington,
326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463
(1940)). In specific jurisdiction cases like the one at hand,*fn1 where
this suit must arise out of or relate to Shiffermiller's contacts with
Illinois, this court must determine whether the defendant has
"`purposefully established minimum contacts within [Illinois]'" and
"whether, by traditional standards, those contacts would make personal
jurisdiction reasonable and fair under the circumstances." RAR,
Inc., 107 F.3d at 1277
(quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462,
476-77 (1985)). Thus, this court must analyze: (1) relatedness, (2)
purposeful availment, and (3) reasonableness. All three are lacking here.
As the Seventh Circuit has stated, "specific jurisdiction requires that
the suit `arise out of or `be related to' [the defendant's] minimum
contacts with the forum state. [This court] cannot simply aggregate all
of a defendant's contacts with a state no matter show dissimilar in terms
of geography, time, or substance as evidence of the
constitutionally-required minimum contacts." Id. Here,
Shiffermiller's only contacts with Illinois consist of an unspecified
number of letters and phone calls to Mitchell, at least eleven e-mails to
Mitchell, and requests for payments of legal fees and expenses over
approximately two-and-a-half years. Even liberally construing Mitchell's
pro se complaint, it is clear that his claim in this court for legal
malpractice does not arise out of or relate to Shiffermiller's contacts
with Illinois. Nowhere does Mitchell allege that any of Shiffermiller's
contacts with Illinois constituted legal malpractice or that
Shiffermiller did anything wrong in Illinois.
In a similar case, where out-of-state attorneys mailed a letter and
phoned a New Hampshire resident recommending that the plaintiff accept a
settlement that the plaintiff alleged was too low due to the attorneys'
malpractice, the First Circuit found that it would be "illogical to
conclude that those isolated recommendations constituted the negligent
conduct that caused the Florida injury and thus were in-forum acts
sufficient to establish specific personal jurisdiction in New
Hampshire." Sawtelle v. Farrell. 70 F.3d 1381.1390 (1st Cir.
1995). As in Sawtelle, all of Mitchell's allegations of
malpractice on the part of Shiffermiller took place in Nebraska, either
during the pre-trial, trial, or appellate phases of the Nebraska
litigation. Shiffermiller's contacts with Illinois were ancillary
to the allegedly negligent activities which took place entirely in
Nebraska. Like in Coté v. Wadel, 796 F.2d 981 (7th Cir.
1986), all of the wrongs of which Mitchell complains occurred in
Nebraska, and none of Shiffermiller's contacts with Mitchell in Illinois
is alleged to have been unlawful. In addition, as in Coté v.
Wadel."[t]he handful of letters and phone calls that passed between
[Mitchell] and [Shiffermiller] is not enough to close the gap."
Id, at 984.
The Seventh Circuit, in BAR, Inc., endorsed the First
Circuit's position as to the "related to" prong explained in
Sawtelle, thereby rejecting the Colorado Supreme Court's
expansive view of personal jurisdiction taken in the cases to which
Mitchell cites, Keefe v. Kirschenbaum & Kirschenbaum, P.C.,
40 P.3d 1267 (Colo. 2002). and Scheuer v. Dist. Court.
684 F.2d 249 (Colo. 1984). RAR, Inc., 107 F.3d at 1278. Like in
RAR, Inc. and Sawtelle. Mitchell's suit is related to
Shiffermiller's contacts with Illinois in a sense because Shiffermiller
never would have handled Mitchell's employment discrimination case in
Nebraska had she never entered into an attorney-client relationship with
Mitchell, an Illinois resident. However, as the Seventh Circuit made
clear in RAR, Inc., using such a loose causal connection
between a suit and a defendant's forum contacts as the basis for personal
jurisdiction does not comport with fair play and substantial justice.
Id, As the court put it, "specific jurisdiction is not
appropriate `merely because a plaintiffs cause of action arose out of the
general relationship between the parties; rather, the action must
directly arise out of the specific contacts between the
defendant and the forum state,'" Id. (emphasis in original)
(quoting Sawtelle. 70 F.3d at 1389).
The bottom line is that Mitchell's claim for legal malpractice did not
arise directly out of, nor was it related to, Shiffermiller's ancillary
contacts with Illinois. Shiffermiller's limited and sporadic contacts
with Mitchell in Illinois have nothing to do with Mitchell's malpractice
claim. The fact that
Mitchell lived in Illinois when the fee agreement, was signed is
insufficient to confer personal jurisdiction over Shiffermiller.
B. Purposeful Availment
"Crucial to the minimum contacts analysis is showing that the defendant
`should reasonably anticipate being haled into court [in the forum
State],' because the defendant has `purposefully avail[ed] itself of the
privilege of conducing activities' there." Id. at 1277
(citations omitted). Mitchell argues that because he was an Illinois
resident at the time of the parties' fee agreement Shiffermiller
purposefully availed herself to Illinois and should have reasonably
anticipated being haled into court here. The contacts between
Shiffermiller and Mitchell were limited over a period of more than two
years. Although Mitchell lived in Illinois during the course of
Shiffermiller's representation of him, everything centered on Nebraska:
Mitchell previously lived and worked there; Mitchell was allegedly
discriminated against there; Mitchell was fired from an employer there;
Shiffermiller worked there; the attorney-client relationship was formed
there; the litigation took place there; and any alleged malpractice
occurred there. Further, no evidence exists in the record to suggest that
Shiffermiller solicited or sought out Mitchell in Illinois. This court
finds that it was not foreseeable to Shiffermiller that she would be
haled into court in Illinois. As the First Circuit said, "The mere
existence of an attorney-client relationship, unaccompanied by other
sufficient contacts with the forum, does not confer personal jurisdiction
over the non-resident in the forum state; more is required."
Sawtelle, 70 F.3d at 1392. Here, as in Sawtelle,
Shiffermiller's only connection with Illinois was Mitchell's residence
here. The ancillary letters, phone calls, and e-mails are not sufficient.
Third, in balancing the factors relevant to this case discussed in
World-Wide Volkswagen Corp. v. Woodson. 444 U.S. 286, 292
(1980), Shiffermiller would be burdened to have to appear in this court.
She is a licensed Nebraska attorney and does not have any continuing or
near permanent relationships with any person or business which requires
here to be present in Illinois. (Shiffermiller Aff. ¶¶ 3-4.) Clearly,
Mitchell's choice of this forum is entitled to a degree deference, and it
would be more convenient for him if his claim was litigated here.
However, although Illinois has some interest in adjudicating this
dispute, the most efficient resolution of this dispute would occur in
Nebraska. While Illinois has an interest in protecting its residents from
malpractice, its interest is much less when the malpractice occurs out of
state. Nebraska, on the other hand, has significant interests, as the
alleged underlying discrimination occurred there, the alleged malpractice
took place there, the attorney-client relationship was formed there, and
Shiffermiller is licensed to practice law there. Nebraska clearly has a
strong public policy interest in regulating its attorneys' conduct.
Consequently, this court finds that it is not reasonable to exercise
personal jurisdiction over Shiffermiller here in Illinois.
Mitchell's claim of waiver is without merit Shiffermiller had no
obligation to negotiate a forum selection clause and has a right to
defend herself against the claim of legal malpractice which Mitchell has
Because plaintiff Mitchell has failed to make a prima facie showing of
this court's personal jurisdiction over Shiffermiller, defendant
Shiffermiller's motion to dismiss for lack of personal jurisdiction is