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Jenkins v. Burkey

United States District Court, S.D. Illinois

June 14, 2017

SCOTT JENKINS and RHONDA STEPHANIE ALEXANDROPOULOS, Plaintiffs,
v.
BRUCE BURKEY, TAYLOR LAW FIRM PC, JOICE BASS, JENNIFER HOSTETLER and LEWIS ROCA ROTHGERBER LLP, Defendant.

          MEMORANDUM AND ORDER

          J. PHIL GILBERT DISTRICT JUDGE

         This matter comes before the Court on three motions to dismiss for lack of personal jurisdiction filed by defendants Jennifer Hostetler (Doc. 15), Lewis Roca Rothgerber LLP (n/k/a Lewis Roca Rothgerber Christie LLP; “LRRC”) (Doc. 36); and Joice Bass (Doc. 39). LRRC also seeks dismissal for insufficient service of process. Plaintiff Scott Jenkins has responded to the motions (Docs. 32, 46 & 47). Plaintiff Rhonda Alexandropoulos has not responded to the motions, so under Local Rule 7.1(c) the Court finds she has admitted they have merit.

         Jenkins originally filed this lawsuit in the United States District Court for the Eastern District of Missouri, which described this litigation as follows:

This litigation arises from a prior lawsuit plaintiff Jenkins filed against his daughters in Nevada to regain control of a family-owned company in Nevada (the “Nevada Lawsuit”). In that lawsuit, Jenkins' daughters retained defendants Bass and Hostetler of the Nevada law firm Lewis Roca Rothgerber Christie LLP as their attorneys. In addition, plaintiff Jenkins' daughters retained defendant Burkey of the Taylor Law Firm, P.C. in Illinois.
* * *
Plaintiffs have now brought a variety of claims against the named attorneys and law firms, which all relate to the defendants' work representing their clients opposite plaintiff Jenkins in the Nevada Lawsuit. These claims include intentional infliction of emotional distress, negligent infliction of emotional distress, intentional interference with a prospective economic advantage, defamation, negligent supervision, and breach of contract. Plaintiffs have also alleged that defendants committed fraud, fraudulent misrepresentation, conspiracy, theft, the unauthorized practice of law, illegal possession of personal credit file information, violating the Illinois Consumer Fraud and Deceptive Business Practice Act, blackmail, extortion, coercion, mail fraud, and sending threatening communications by mail. Plaintiffs also allege that defendants Bass and Hostetler illegally filed or threatened to file lis pendens in Illinois and Missouri.

         The Eastern District of Missouri court dismissed the action for lack of personal jurisdiction over the defendants. Jenkins and Alexandropoulos have filed a very similar suit in this Court. Bass, Hostetler and LRRC now ask the Court to dismiss the plaintiffs' claims against them because they lack sufficient contacts with the state of Illinois to be brought into court here. LRRC also complains that it was not served properly.

         I. Personal Jurisdiction

         When personal jurisdiction is challenged under Federal Rule of Civil Procedure 12(b)(2), the plaintiff bears the burden of establishing personal jurisdiction over a defendant. Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003). If there are material facts in dispute regarding the Court's jurisdiction over a defendant, the Court must hold an evidentiary hearing at which the plaintiff must establish jurisdiction by a preponderance of the evidence. Id. (citing Hyatt Int'l Corp. v. Coco, 302 F.3d 707, 713 (7th Cir. 2002)). Alternatively, the Court may decide the motion to dismiss without a hearing based on the submitted written materials so long as it resolves all factual disputes in the plaintiff's favor. Purdue Research, 338 F.3d at 782 (citing RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1276 (7th Cir. 1997)). If the Court consults only the written materials, the plaintiff need only make a prima facie showing of personal jurisdiction. Purdue Research, 338 F.3d at 782 (citing Hyatt, 302 F.3d at 713). In this case, the Court consults only the written materials to determine whether Jenkins has made a prima facie showing of personal jurisdiction.

         A federal court sitting in diversity looks to the personal jurisdiction law of the state in which the court sits to determine if it has jurisdiction. Hyatt, 302 F.3d at 713(citing Dehmlow v. Austin Fireworks, 963 F.2d 941, 945 (7th Cir. 1992)). Thus, this Court applies Illinois law. Under Illinois law, a court has personal jurisdiction over a defendant if an Illinois statute grants personal jurisdiction and if the exercise of personal jurisdiction is permissible under the Illinois and United States constitutions. RAR, 107 F.3d at 1276; Wilson v. Humphreys (Cayman), Ltd., 916 F.2d 1239 (7th Cir. 1990).

         1. Illinois Statutory Law

         Under Illinois law, the long-arm statute permits personal jurisdiction over a party to the extent allowed under the due process provisions of the Illinois and United States constitutions. 735 ILCS 5/2-209(c); Hyatt Int'l Corp. v. Coco, 302 F.3d 707, 714 (7th Cir. 2002); Central States, Se. & Sw. Areas Pension Fund v. Reimer Express World Corp., 230 F.3d 934, 940 (7th Cir. 2000). Therefore, whether the Court has jurisdiction over a defendant depends on whether such jurisdiction is permitted by federal and state constitutional standards.

         2. Illinois Constitutional Law

         The Illinois Constitution's due process guarantee, Ill. Const. art. I, § 2, permits the assertion of personal jurisdiction “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, 565 N.E.2d 1302, 1316 (Ill. 1990). When interpreting these principles, a court may look to the construction and application of the federal due process clause. Id. In fact, the Seventh Circuit Court of Appeals has suggested that there is no operative difference between Illinois and federal due process limits on the exercise of personal jurisdiction. Hyatt Int'l Corp. v. Coco, 302 F.3d 707, 715 (7th Cir. 2002) (citing RAR, Inc. v. Turner Diesel Ltd., 107 F.3d 1272, 1276 (7th Cir. 1997)). The Court sees nothing in this case indicating that in the situation presented the federal and state standards should reach a different result. Therefore, if the contacts between the defendants and Illinois are sufficient to satisfy the requirements of federal due process, then the requirements of both the Illinois long-arm statute and the Illinois Constitution have also been met, and no other inquiry is necessary.

         3. Federal Constitutional Law

         The Due Process Clause of the Fourteenth Amendment limits when a state may assert personal jurisdiction over nonresident individuals and corporations. See Pennoyer v. Neff, 95 U.S. 714, 733), overruled on other grounds by Shaffer v. Heitner, 433 U.S. 186 (1977). Under federal due process standards, a court can have personal jurisdiction over a defendant only if the defendant has “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)). The defendant must have “purposely established minimum contacts with the forum state such that he or she ‘should reasonably anticipate being haled into court' there.” Tamburo v. Dworkin, 601 F.3d 693, 701 (7th Cir. 2010) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985)).

         What this standard means in a particular case depends on whether the plaintiff asserts “general” or “specific” jurisdiction. Specific, or case-linked, jurisdiction refers to jurisdiction over a defendant in a suit arising out of or in connection with the defendant's purposeful contacts with the forum. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 923-24 (2011); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 nn. 8, 9 (1984). General, or all-purpose, jurisdiction, on the other hand, may exist even in suits that do not arise out of or relate to the defendant's contacts so long as the defendant has “continuous and systematic” contacts with the forum state. Goodyear, 564 U.S. at 924; Helicopteros Nacionales, 466 U.S. at 416. No party in this case seriously contends the Court has general jurisdiction over Bass, Hostetler or LRRC; the issue is whether specific jurisdiction exists.

         The specific jurisdiction inquiry “focuses on the relationship among the defendant, the forum, and the litigation.” Walden v. Fiore, 134 S.Ct. 1115, 1121 (2014) (internal quotations omitted). First, there must be “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253 (1958); accord Goodyear, 564 U.S. at 924. Second, the lawsuit must arise out of or be related to the defendant's contact with the forum. Goodyear, 564 U.S. at 923-24; Helicopteros Nacionales, 466 U.S. at 414 n. 8.

         In a case like this asserting a defendant committed an intentional tort, the constitutional requirements supporting specific jurisdiction are satisfied “only when the defendant expressly aims its actions at the state with the knowledge that they would cause harm to the plaintiff there.” Mobile Anesthesiologists Chi., LLC v. Anesthesia Assocs. of Houston Metroplex, P.A., 623 F.3d 440, 445 (7th Cir. 2010). The defendant must have known that the effects would be felt by the plaintiff in the forum state. Tamburo v. Dworkin, 601 F.3d 693, 703 (7th Cir. 2010). “‘[E]xpress aiming' remains the crucial requirement when a plaintiff seeks to establish personal jurisdiction” over a defendant accused of an intentional tort. Mobile Anesthesiologists, 623 F.3d at 445-46. This requirement “ensure[s] that an out-of-state defendant is not bound to appear to account for merely random, fortuitous, or attenuated contacts with the forum state.” Tamburo, 601 F.3d at 702 (internal quotations omitted).

         For example, in Calder v. Jones, 465 U.S. 783, 789-90 (1984), the Supreme Court held that a California court had personal jurisdiction over out-of-state defendants because they “wrote and . . . edited an article that they knew would have a potentially devastating impact upon [the plaintiff]. And they knew that the brunt of that injury would be felt by respondent in the State [of California] in which she lives and works and in which the [publication containing the article] has its largest circulation.” Similarly, in Tamburo, the Court of Appeals for the Seventh Circuit held that a federal court in Illinois had personal jurisdiction over foreign defendants under Calder's test because “although they acted from points outside the forum state, these defendants ...


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