Jerry Deloney v. William Hallack, Jr. ( 2018 )


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  •                United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 17-3170
    ___________________________
    Jerry Deloney; Peggy Deloney
    lllllllllllllllllllllPlaintiffs - Appellants
    v.
    Dennis Chase; Chasemaster Corporation
    lllllllllllllllllllllDefendants
    William H. Hallack, Jr.
    lllllllllllllllllllllDefendant - Appellee
    Ronald Novack, Jr.; Juli Anne Novack
    lllllllllllllllllllllDefendants
    ____________
    Appeal from United States District Court
    for the Western District of Arkansas - Texarkana
    ____________
    Submitted: September 24, 2018
    Filed: December 4, 2018
    [Unpublished]
    ____________
    Before SMITH, Chief Judge, MELLOY and STRAS, Circuit Judges.
    ____________
    PER CURIAM.
    Jerry and Peggy Deloney appeal the district court’s1 grant of defendant William
    Hallack, Jr.’s motion to dismiss the Deloneys’ claims against Hallack without
    prejudice for lack of personal jurisdiction. We affirm.
    I. Background
    The Deloneys, residents of Arkansas, received $460,738.00 in December 2010
    from the United States Department of Agriculture (USDA) in an administrative civil
    rights action alleging racial discrimination by the USDA. The Deloneys filed the
    action pro se, but they later hired Dennis Chase, a resident of Louisiana, to represent
    them as a non-lawyer advocate. The USDA requires that all award funds be wired to
    an escrow account for dispersal to the claimants. As a result, near the conclusion of
    the civil rights action, Chase contacted Hallack, an attorney, and requested that
    Hallack undertake limited representation of Chase’s claimants and place any funds
    awarded from Chase’s USDA case in Hallack’s escrow account. Hallack resides in
    Louisiana and is not licensed to practice law in Arkansas. Hallack issued an
    engagement letter to Chase on October 26, 2010. The letter was addressed only to
    Chase and provided:
    I enjoyed meeting you on October 26, 2010, concerning my firm’s
    representation of your principal claimants against the [USDA]. I have
    completed a conflict of interest search and determined that there are no
    conflicts at this time, so I can accept this matter. I will be doing the
    following to represent your principal claimants:
    1)     Reviewing and revising settlement documents
    2)     Assisting principal claimants in execution of
    settlement documents
    1
    The Honorable Susan O. Hickey, United States District Judge for the Western
    District of Arkansas.
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    3)     Escrowing and disbursing settlement proceeds
    My firm’s engagement is limited to the aforementioned services
    in connection with settlement of your principal claimants’ claims against
    the [USDA] arising out of civil rights discrimination.
    My firm’s fees are based on the amount of time required to
    provide the services needed to complete your principal claimants’
    settlements; and will be charged at the rate of $150.00 per hour.
    Please keep me informed as this matter progresses. In the
    meantime, if you have any questions, please call. Thank you for
    choosing my firm to represent your principal claimants in this matter.
    Pls.’ Opp’n to Def. William Hallack, Jr.’s Mot. to Dismiss, Ex. B–Letter of
    Engagement, at 1, Deloney v. Chase, No. 15-cv-4104 (W.D. Ark. Mar. 3, 2016), ECF
    No. 14-2.
    While the engagement letter provides for reviewing and executing settlement
    documents, Hallack maintains that his only work with Chase involved holding the
    funds in escrow. The Deloneys do not dispute this assertion. Hallack contends that
    he did not know the identity of any “principal claimants” at the time the engagement
    letter was issued.
    The Deloneys allege that in August 2011, Chase defrauded them of $110,000
    from the settlement funds under the guise of an investment opportunity. The Deloneys
    claim that Hallack disbursed the $110,000 to Chase without performing any
    investigation concerning the circumstances or propriety of the disbursal.
    The Deloneys sought to recover the settlement funds by filing suit against
    Chase and Hallack in the Circuit Court of Little River County, Arkansas. Hallack
    moved to dismiss, arguing that the state circuit court lacked personal jurisdiction over
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    him. In a hearing on the motion to dismiss, the state circuit court stated its intent to
    grant the motion to dismiss. Prior to issuance of an order of dismissal, the Deloneys
    non-suited their case. Thereafter, the Deloneys re-filed their claims in federal district
    court. The Deloneys’ complaint alleged breach of contract, promissory estoppel,
    unjust enrichment, conversion, breach of fiduciary duty, and fraud claims against
    Chase. The Deloneys alleged legal malpractice and breach of fiduciary duty against
    Hallack. The Deloneys asserted that the federal court had jurisdiction to hear the
    action pursuant to 28 U.S.C. § 1332 because the amount in controversy exceeds
    $75,000 and is between citizens of different states.
    Hallack moved to dismiss, reasserting the arguments made in his motion before
    the state circuit court. He asserted that the Deloneys’ complaint failed to state facts
    supporting an exercise of personal jurisdiction over him. Specifically, Hallack
    claimed that he has no relevant contacts with the State of Arkansas and that any legal
    work related to the Deloneys’ funds occurred in Louisiana. Hallack averred that his
    personal contact with the Deloneys consisted of a few phone calls and e-mails.
    Further, Hallack maintained that the funds at issue were held in escrow in Louisiana
    and that any distribution of those funds was made by Hallack in Louisiana. Finally,
    Hallack stated that he performed no substantive legal work outside of Louisiana.
    The Deloneys did not dispute Hallack’s recitation of the facts. Instead, they
    argued that Hallack’s agreement to hold their funds in escrow, as evidenced by the
    October 2010 engagement letter, amounts to a continuing relationship or obligation
    with Arkansas citizens that confers personal jurisdiction.
    The district court granted Hallack’s motion to dismiss. It concluded that the
    Deloneys failed to show that Hallack has sufficient contacts with the State of
    Arkansas to establish personal jurisdiction because Hallack’s engagement letter and
    later contacts with the Deloneys did not rise to the level of a continuing relationship
    or obligation with Arkansas citizens. The court acknowledged the engagement letter’s
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    reference to the “principal claimants,” but it noted that Hallack never spoke to the
    Deloneys about his legal services prior to the agreement to hold the funds in escrow.
    The court pointed to Hallack’s evidence that he did not know the identity of the
    “principal claimants” that Chase represented at the time Hallack sent the engagement
    letter. Before he sent the engagement letter, Hallack had communicated only with
    Chase, a Louisiana resident. And, Hallack sent the engagement letter only to Chase.
    The court emphasized that these facts were undisputed. The court acknowledged that
    Hallack later had a small amount of e-mail and phone contact with the Deloneys. But
    no dispute existed that Hallack completed all his work with escrow funds exclusively
    in Louisiana. Based on these facts, the court found that Hallack did not purposefully
    direct any actions toward the forum state. Accordingly, the court dismissed the claims
    against Hallack without prejudice for lack of personal jurisdiction.
    II. Discussion
    On appeal, the Deloneys argue that the district court erred in granting Hallack’s
    motion to dismiss based on lack of personal jurisdiction. They assert that Hallack
    created continuing obligations with them (Arkansas residents) by purposefully
    undertaking to represent Chase’s “principal claimants.” According to the Deloneys,
    Hallack’s failure to learn their identities and location does not absolve him of
    responsibility for his actions.
    “We review personal-jurisdiction issues de novo.” K-V Pharm. Co. v. J. Uriach
    & CIA, S.A., 
    648 F.3d 588
    , 591 (8th Cir. 2011). “When personal jurisdiction is
    challenged by a defendant, the plaintiff bears the burden to show that jurisdiction
    exists.” Fastpath, Inc. v. Arbela Techs. Corp., 
    760 F.3d 816
    , 820 (8th Cir. 2014). To
    defeat a defendant’s motion to dismiss for lack of personal jurisdiction,
    a plaintiff must make a prima facie showing that personal jurisdiction
    exists, which is accomplished by pleading sufficient facts to support a
    reasonable inference that the defendant can be subjected to jurisdiction
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    within the state. Although the evidentiary showing required at the prima
    facie stage is minimal, the showing must be tested, not by the pleadings
    alone, but by the affidavits and exhibits supporting or opposing the
    motion. We must view the evidence in the light most favorable to the
    plaintiff and resolve all factual conflicts in its favor in deciding whether
    the plaintiff made the requisite showing.
    K-V Pharm. 
    Co., 648 F.3d at 591
    –92 (cleaned up).
    “Personal jurisdiction in a diversity case exists ‘only to the extent permitted by
    the long-arm statute of the forum state and by the Due Process Clause.’” 
    Id. at 592
    (quoting Dever v. Hentzen Coatings, Inc., 
    380 F.3d 1070
    , 1073 (8th Cir. 2004)).
    Arkansas’s long-arm statute provides that “[t]he courts of this state shall have
    personal jurisdiction of all persons, and all causes of action or claims for relief, to the
    maximum extent permitted by the due process of law clause of the Fourteenth
    Amendment of the United States Constitution.” Ark. Code Ann. § 16-4-101(B). As
    a result, Arkansas law provides that “the exercise of personal jurisdiction is limited
    only by federal constitutional law.” Yanmar Co. v. Slater, 
    386 S.W.3d 439
    , 443 (Ark.
    2012).
    To comport with due process, “the defendant [must] purposefully establish
    ‘minimum contacts’ in the forum state such that asserting personal jurisdiction and
    maintaining the lawsuit against the defendant does not offend ‘traditional conceptions
    of fair play and substantial justice.’” K-V Pharm. 
    Co., 648 F.3d at 592
    (quoting
    Burger King Corp. v. Rudzewicz, 
    471 U.S. 462
    , 464, 474–77 (1985)). Due process
    requires that the defendant “have engaged in ‘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.’” 
    Id. (quoting Burger
    King 
    Corp., 471 U.S. at 475
    ). “[T]he defendant’s suit-related conduct must create a
    substantial connection with the forum State.” Walden v. Fiore, 
    571 U.S. 277
    , 284
    (2014). The defendant’s relationship with the forum state “must arise out of contacts
    -6-
    that the ‘defendant himself’ creates with the forum State.” 
    Id. (quoting Burger
    King
    
    Corp., 471 U.S. at 745
    ). “[C]ontacts between the plaintiff (or third parties) and the
    forum State” do not “satisfy the defendant-focused ‘minimum contacts’ inquiry.” 
    Id. “The defendant’s
    contacts with the forum must thus be more than ‘random, fortuitous,
    or attenuated,’ and must permit the defendant to ‘reasonably anticipate being haled
    into court there.’” Creative Calling Sols., Inc. v. LF Beauty Ltd., 
    799 F.3d 975
    , 980
    (8th Cir. 2015) (quoting Burger King 
    Corp., 471 U.S. at 474
    –75).
    We have identified five factors a court must consider
    in determining whether sufficient minimum contacts exist for personal
    jurisdiction: (1) the nature and quality of the contacts with the forum
    state; (2) the quantity of the contacts; (3) the relationship of the cause of
    action to the contacts; (4) the interest of the forum state in providing a
    forum for its residents; and (5) the convenience or inconvenience to the
    parties. Although the first three factors are primary factors, and the
    remaining two are secondary factors, we look at all of the factors and the
    totality of the circumstances in deciding whether personal jurisdiction
    exists.
    K-V Pharm. 
    Co., 648 F.3d at 592
    –93 (cleaned up).
    Prior to analyzing “the five factors set forth above, we first turn to the role of
    contracts in the personal-jurisdiction analysis. A contract between a plaintiff and an
    out-of-state defendant is not sufficient in and of itself to establish personal
    jurisdiction over the defendant in the plaintiff’s forum state.” 
    Id. at 593.
    We apply
    a highly realistic approach that recognizes that a contract is ordinarily
    but an intermediate step serving to tie up prior business negotiations
    with future consequences which themselves are the real object of the
    business transaction. It is these factors—prior negotiations and
    contemplated future consequences, along with the terms of the contract
    -7-
    and the parties’ actual course of dealing—that must be evaluated in
    determining whether the defendant purposefully established minimum
    contacts within the forum.
    
    Id. (cleaned up).
    The Supreme Court has explained that
    where the defendant deliberately has engaged in significant activities
    within a State or has created continuing obligations between himself and
    residents of the forum, he manifestly has availed himself of the privilege
    of conducting business there, and because his activities are shielded by
    the benefits and protections of the forum’s laws it is presumptively not
    unreasonable to require him to submit to the burdens of litigation in that
    forum as well.
    Burger King 
    Corp., 471 U.S. at 475
    –76 (cleaned up). But “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 [defendant] could
    ‘reasonably anticipate being haled into court there.’” Eagle Tech. v. Expander
    Americas, Inc., 
    783 F.3d 1131
    , 1137 (8th Cir. 2015) (quoting Viasystems, Inc. v.
    EBM–Papst St. Georgen GmbH & Co., KG, 
    646 F.3d 589
    , 594 (8th Cir. 2011)).
    Applying our five-factor test and relevant case law, we conclude that the
    district court did not err in dismissing the claims against Hallack for lack of personal
    jurisdiction. First, the nature and quality of Hallack’s contacts with Arkansas favor
    Hallack. Hallack resides in Louisiana, is licensed to practice law in Louisiana, and
    is not and has never been licensed to practice law in Arkansas.2 Hallack owns no
    2
    See Marchant v. Peeples, 
    623 S.W.2d 523
    , 525 (Ark. 1981) (“It would strain
    [Arkansas’s long-arm statute] to say that [a Texas attorney] was transacting business
    in Arkansas. He was hired in Texas to work in Texas. He never came to Arkansas and
    -8-
    property in Arkansas, nor does he have a branch office located in Arkansas.
    Additionally, Hallack has no employees in Arkansas and has never engaged in
    advertising legal (or other services) in Arkansas. Hallack never traveled to Arkansas
    or personally conducted activities in Arkansas. He has never been qualified to do
    business in Arkansas or had an agent for service of process in Arkansas.3
    Furthermore, Hallack prepared the engagement letter in Louisiana and
    addressed it to Chase, a Louisiana resident. The engagement letter mentioned only
    “principal claimants” and never referred to the Deloneys or Arkansas specifically.
    The letter was not addressed to the Deloneys. The funds that Hallack held in escrow
    were in Louisiana, not Arkansas. Hallack made distributions of those funds from
    Louisiana, not Arkansas. Hallack’s legal services were rendered in Louisiana, not
    Arkansas. See Eagle 
    Tech., 783 F.3d at 1137
    . Any communication, via telephone or
    e-mail, that Hallack had with the Deloneys occurred while Hallack remained in
    Louisiana. See, e.g., Porter v. Berall, 
    293 F.3d 1073
    , 1076 (8th Cir. 2002) (“Contact
    by phone or mail is insufficient to justify exercise of personal jurisdiction under the
    due process clause.”).
    Second, the quantity of Hallack’s contacts with Arkansas also favors Hallack.
    The Deloneys do not challenge the district court’s characterization that Hallack had
    offered no services here. The negligent act complained of was failing to file a
    pleading in Texas.”).
    3
    See Austad Co. v. Pennie & Edmonds, 
    823 F.2d 223
    , 226 (8th Cir. 1987)
    (“While we do not dispute Austad’s claim that an attorney-client relationship existed
    between Austad and Pennie & Edmonds, we do not believe that Pennie & Edmonds
    had sufficient contacts with South Dakota to confer personal jurisdiction. Pennie &
    Edmonds does not maintain an office in South Dakota nor do any of its attorneys
    reside there or maintain a license to practice law there. Pennie & Edmonds has never
    advertised or solicited business in South Dakota. Further, Pennie & Edmonds did not
    actively seek out Austad as a client.”).
    -9-
    only a small amount of e-mail and phone contact with the Deloneys after sending the
    engagement letter to Chase. As pointed out above, the engagement letter was
    addressed to Chase, not to the Deloneys.
    Third, the relationship of the Deloneys’ cause of action (legal malpractice and
    breach of fiduciary duty) to Hallack’s contacts with Arkansas weighs in Hallack’s
    favor. The Deloneys’ legal action relates to Hallack’s engagement letter with Chase.
    Again, this engagement letter was not addressed to them, nor was it written in
    Arkansas. It was addressed to a Louisiana resident (Chase) in Louisiana.
    Finally, it would be highly inconvenient for Hallack to be haled into court in
    Arkansas given that he was never physically present in Arkansas during the events
    that gave rise to the present suit.
    III. Conclusion
    Accordingly, we affirm the judgment of the district court.
    ______________________________
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