Nimmer v. Giga Entertainment Media , 298 Neb. 630 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/09/2018 08:15 AM CST
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
NIMMER v. GIGA ENTERTAINMENT MEDIA
Cite as 298 Neb. 630
John C. Nimmer, appellant, v.
Giga Entertainment Media, Inc., appellee.
___ N.W.2d ___
Filed January 12, 2018. No. S-17-070.
1. Judgments: Appeal and Error. When a jurisdictional question does
not involve a factual dispute, the issue is a matter of law. An appel-
late court reviews questions of law independently of the lower court’s
conclusion.
2. Jurisdiction: Rules of the Supreme Court: Pleadings: Appeal and
Error. When reviewing an order dismissing a party from a case for
lack of personal jurisdiction under Neb. Ct. R. Pldg. § 6-1112(b)(2), an
appellate court examines the question of whether the nonmoving party
has established a prima facie case of personal jurisdiction de novo.
3. Motions to Dismiss: Appeal and Error. In reviewing the grant of a
motion to dismiss, an appellate court must look at the facts in the light
most favorable to the nonmoving party and resolve all factual conflicts
in favor of that party.
4. Jurisdiction: Words and Phrases. Personal jurisdiction is the power of
a tribunal to subject and bind a particular entity to its decisions.
5. Due Process: Jurisdiction: States. Before a court can exercise personal
jurisdiction over a nonresident defendant, the court must determine,
first, whether the long-arm statute is satisfied and, if the long-arm stat-
ute is satisfied, second, whether minimum contacts exist between the
defendant and the forum state for personal jurisdiction over the defend­
ant without offending due process.
6. Constitutional Law: Jurisdiction: States. Nebraska’s long-arm statute,
Neb. Rev. Stat. § 25-536 (Reissue 2016), extends Nebraska’s jurisdiction
over nonresidents having any contact with or maintaining any relation to
this state as far as the U.S. Constitution permits.
7. Due Process: Jurisdiction: States. If the long-arm statute has been
satisfied, a court must then determine whether minimum contacts exist
between the defendant and the forum state for personal jurisdiction over
the defendant without offending due process.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
NIMMER v. GIGA ENTERTAINMENT MEDIA
Cite as 298 Neb. 630
8. ____: ____: ____. The benchmark for determining if the exercise of per-
sonal jurisdiction satisfies due process is whether the defendant’s mini-
mum contacts with the forum state are such that the defendant should
reasonably anticipate being haled into court there.
9. ____: ____: ____. Due process for personal jurisdiction over a nonresi-
dent defendant requires that the defendant’s minimum contacts with the
forum state be such that maintenance of the suit does not offend tradi-
tional notions of fair play and substantial justice.
10. Due Process: Jurisdiction: States: Appeal and Error. In analyzing
personal jurisdiction, an appellate court considers the quality and type of
the defendant’s activities to decide whether the defendant has the neces-
sary minimum contacts with the forum state to satisfy due process.
11. Jurisdiction: States. Whether a forum state court has personal jurisdic-
tion over a nonresident defendant depends on whether the defendant’s
actions created substantial connections with the forum state, resulting
in the defendant’s purposeful availment of the forum state’s benefits
and protections.
12. ____: ____. The purposeful availment requirement ensures that a
defend­ant will not be haled into a jurisdiction solely as a result of ran-
dom, fortuitous, or attenuated contacts, or of the unilateral activity of
another party or a third person. Jurisdiction is proper, however, where
the contacts proximately result from actions by the defendant himself or
herself that create a substantial connection with the forum state.
13. ____: ____. A court exercises two types of personal jurisdiction depend-
ing upon the facts and circumstances of the case: general personal juris-
diction or specific personal jurisdiction.
14. ____: ____. To satisfy general personal jurisdiction, the plaintiff’s claim
does not have to arise directly out of the defendant’s contacts with the
forum state if the defendant has engaged in continuous and systematic
general business contacts with the forum state.
15. ____: ____. If the defendant’s contacts are neither substantial nor con-
tinuous and systematic, but the cause of action arises out of or is related
to the defendant’s contact with the forum, a court may assert specific
jurisdiction over the defendant, depending on the quality and nature of
such contact.
Appeal from the District Court for Sarpy County: David K.
A rterburn, Judge. Affirmed as modified.
John C. Nimmer, of Nimmer Law Office, pro se.
Clarence E. Mock, of Johnson & Mock, P.C., L.L.O., for
appellee.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
NIMMER v. GIGA ENTERTAINMENT MEDIA
Cite as 298 Neb. 630
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Heavican, C.J.
I. INTRODUCTION
John C. Nimmer, a licensed attorney, began providing legal
representation for Digital Broadcasting Corporation (DBC) in
1995. In 2012, DBC merged with Giga Entertainment Media,
Inc. (GEM), whereby GEM became the surviving corporation.
DBC shareholders received a single share of GEM in exchange
for each share owned in DBC.
In 2015, Nimmer withdrew from representation of DBC.
Upon resigning from representation, Nimmer made a demand
on GEM for cash legal fees and a repurchase of DBC common
shares. After the parties failed to reach a settlement, Nimmer,
acting pro se, filed a claim of breach of contract against
GEM. GEM filed a motion to dismiss for lack of personal
jurisdiction.
Following a hearing, the trial court granted GEM’s motion
to dismiss for lack of personal jurisdiction and dismissed
Nimmer’s complaint with leave to amend the complaint.
Nimmer filed an amended complaint that included additional
claims for tortious conversion and a violation of Nebraska’s
Uniform Deceptive Trade Practices Act.1 GEM filed a second
motion to dismiss for lack of personal jurisdiction. The district
court granted GEM’s motion to dismiss for lack of personal
jurisdiction and dismissed Nimmer’s complaint with prejudice.
Nimmer appeals. We affirm as modified.
II. BACKGROUND
1. Factual Background
Nimmer stated in his affidavit that he has provided legal
services to DBC and its affiliates since April 1995, in exchange
for DBC common shares and cash compensation. DBC was
1
See Neb. Rev. Stat. §§ 87-301 to 87-306 (Reissue 2014 & Cum. Supp.
2016).
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NIMMER v. GIGA ENTERTAINMENT MEDIA
Cite as 298 Neb. 630
a Delaware corporation with its home offices formerly in
Nassau County, New York, and is now dissolved. According to
Nimmer, he provided legal services to “Sky Cable, LLC,” one
of DBC’s affiliates that is now a dissolved Nevada business
entity, with its former home office in Omaha, Nebraska.
Nimmer attached extensive documentation to his affidavit
regarding any contact he had with DBC and GEM in addition
to any document referencing both DBC and GEM. Among
those documents is a June 24, 2008, letter that Nimmer sent to
Gary Nerlinger, chairman of DBC, confirming the understand-
ing that the agreement for the performance of legal services
to DBC
shall be governed by, and construed and enforced in
accordance with, the laws of the State of Nebraska.
[DBC] hereby irrevocably submits to the jurisdiction of
any federal or state courts of the State of Nebraska for
purpose of any suit, action, or other proceeding arising
out of this letter Agreement.
Nerlinger signed the letter as accepted.
Also attached to Nimmer’s affidavit are the minutes for a
June 1, 2012, DBC board of directors telephonic meeting in
which DBC’s board of directors approved a statutory merger
of DBC’s assets with GEM. Nimmer averred in his affidavit
that “[a]fter GEM’s creation in May 2012 by DBC[, Nimmer]
continued to e-mail itemized billing statements for overlapping
DBC and GEM legal work to the same persons addressed to
‘DBC and Affiliates’.” On August 30, Charles Noska, GEM’s
vice president of logistic integration, sent an email from a
GEM email account to “DBC and now [GEM] Investors,”
informing them that “[DBC] has been transformed formally
into . . . GEM.” The email also included an attached “copy
of the GEM Business Plan.” On September 26, Noska sent
another email concerning the GEM business plan, with the
subject line “GEM (formerly DBC) Index for Substantiating
Articles and Research.”
Lawrence W. Silver, vice president of GEM, stated
in his affidavit that GEM is a Nevada corporation with its
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
NIMMER v. GIGA ENTERTAINMENT MEDIA
Cite as 298 Neb. 630
principal place of business in New York. GEM has no offices
in Nebraska; owns no property in Nebraska; generates no rev-
enue in Nebraska; maintains no corporate records in Nebraska;
and has no employees, officers, or directors in Nebraska. Silver
also stated that since GEM’s formation in 2012, there has not
been a single instance in which a GEM employee, officer,
or director traveled to Nebraska on company business or has
otherwise been in Nebraska for any purpose relating in any
way to GEM’s business activities. GEM has not contracted to
supply goods or services in Nebraska, nor registered with the
Secretary of State to do business in Nebraska.
On April 1, 2015, GEM mailed a letter to DBC sharehold-
ers, directing them to surrender their DBC shares in order to
be issued shares in GEM. The process set forth in the letter
required DBC shareholders to send their certificates to GEM.
DBC notified shareholders that “[t]he DBC certificates will be
copied, recorded and forwarded to legal counsel, . . . Nimmer[,]
by our administrative division.”
On July 8, 2015, Nimmer emailed Noska to inform him
that he, Nimmer, refused to surrender his DBC certificates.
On November 12, Nimmer withdrew from his representation
of DBC.
In an email dated November 15, 2015, GEM’s outside coun-
sel, Abram Pafford, stated:
[I]f you want to send proposed stipulation language stat-
ing that GEM agrees to Nebraska as a forum for any
litigation between itself and Nimmer Law Office, and that
GEM agrees it is responsible for any legal fee invoices
determined by a court to be owed by DBC to Nimmer
Law Office, I will send it to the company and probably
recommend that the Board agree to it.
My recommendation would be based on my under-
standing that without regard to corporate form, there have
at least been verbal agreements and a course of dealing
between GEM and Nimmer Law Office whereby GEM
agreed to assume responsibility for the unpaid balance of
legal fees owed by DBC to Nimmer Law Office.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
NIMMER v. GIGA ENTERTAINMENT MEDIA
Cite as 298 Neb. 630
In an email from Pafford to Nimmer later that same day,
Pafford stated:
Since you cannot be bothered with proposing stipula-
tion language, and since you ignored my email indicating
that I was authorized to act for the company on the lim-
ited issue of appropriate stipulation language, here is the
language I would propose:
“The Parties stipulate that Nebraska is the proper venue
for this litigation, and that the Nebraska courts can prop-
erly exercise personal jurisdiction over GEM.”
In a November 17 email, Pafford stated that “[GEM] has
offered a stipulation that would cover the issues of Nebraska
venue and successor liability for your legal fees in a straight-
forward manner. . . . If you choose to file suit without respond-
ing to the proposed stipulation that is up to you . . . .”
After the parties failed to reach a settlement, Nimmer, acting
pro se, filed claims of breach of contract for failing to repur-
chase Nimmer’s 584,500 DBC common shares and sought the
value of those shares based upon a share price at the time of
the merger.
2. Procedural Background
On October 28, 2016, Nimmer filed a verified amended
complaint. In his amended complaint, Nimmer alleged that
GEM is the successor of DBC and that thus, DBC’s actions
are ascribable to GEM for purposes of personal jurisdiction,
because (1) Nimmer’s monthly billing statements for legal
representation were addressed to “‘DBC and Affiliates’” and
later to “‘GEM/DBC and Affiliates’” and sent to the same
persons; (2) DBC stated to Nimmer that it would merge with
GEM and that GEM would automatically acquire DBC’s assets
and would remain responsible for DBC’s financial obligations;
(3) GEM changed plans to instead cause a share-for-share
exchange, after which DBC would be dissolved; (4) the April
1, 2015, letter from GEM to DBC shareholders requested
DBC shareholders to surrender DBC stock certificates to GEM
which would be forwarded to Nimmer as GEM’s legal counsel;
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
NIMMER v. GIGA ENTERTAINMENT MEDIA
Cite as 298 Neb. 630
(5) Nimmer demanded cash legal fees and DBC common
shares upon resigning from further representation of GEM, and
GEM agreed to a payment plan of legal fees but Nimmer has
not agreed to a share repurchase plan; (6) GEM’s legal coun-
sel stipulated to a Nebraska venue in an email to Nimmer; (7)
both entities have been under common control because there
is substantial overlap among DBC’s former owners, manage-
ment, attorneys, accountants, agents, and consultants and those
in GEM; (8) GEM has admitted that it is DBC’s successor in
interest in (a) early GEM shareholder updates sent to DBC
shareholders by Noska, “an officer/director of both DBC and
GEM, on behalf of GEM from a GEM e-mail account e-mailed
DBC shareholders,” and once referred to “‘DBC and now
[GEM] Investors,’” and once stated in the subject line “‘[GEM]
(formerly DBC) Sept 26 2012 update,’” (b) an April 1, 2015,
email sent by GEM to DBC shareholders requiring that they
exchange DBC shares for GEM shares, and (c) a November 13,
2015, screenshot of GEM’s website in which GEM describes
its beginnings as involving “digital wireless television systems
and FCC bandwidth licenses,” which is what DBC and its
affiliates had done and not what GEM did; (9) Nerlinger con-
trolled both DBC and GEM by (a) recommending all officer
and board member candidates to Silver, who then appointed
those candidates, (b) directing the current GEM “initial public
offering” process, (c) directing significant changes to DBC’s
and GEM’s business models, (d) directing day-to-day opera-
tions, (e) attending and directing board of directors meetings,
(f) conducting conference calls for investors, (g) negotiating
and consummating contracts that were signed by other officers
and directors, (h) receiving substantial equity ownership, (i)
claiming in agreements disclosed in litigation that he is the
founder of GEM, (j) “‘cherry pick[ing]’” which GEM share-
holders received updates about GEM, (k) serving as Nimmer’s
primary point of contact for legal representation of DBC and
GEM, and (l) routinely exceeding his scope as a consultant to
GEM; (10) Nimmer provided legal representation to one of
DBC’s affiliates, Sky Cable, which had its former home offices
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
NIMMER v. GIGA ENTERTAINMENT MEDIA
Cite as 298 Neb. 630
in Omaha commencing in 1995 until Sky Cable’s dissolution;
(11) for the duration of Nimmer’s representation of DBC and
GEM, DBC and GEM have issued and sold their own securities
and have substantially overlapping management as is apparent
from their public filings; (12) a February 5, 2002, fee agree-
ment between Nimmer and DBC provided that “‘venue for
all fee matters will continue to be conferred specifically upon
Nebraska’”; (13) the February 5, 2002, and June 24, 2008, fee
agreements between Nimmer and DBC provided that venue
was proper in Nebraska and that the laws of Nebraska applied;
(14) DBC expressly admitted in previous litigation that while
it was a Delaware corporation with its home offices in New
York, it conducts business in Nebraska; (15) Nimmer provided
litigation and nonlitigation services for DBC in Nebraska; and
(16) Nerlinger made several trips to Nebraska related to legal
services provided by Nimmer.
Nimmer also contended that GEM’s actions, standing alone,
confer personal jurisdiction, because (1) GEM’s retention of
Nimmer as legal counsel from May 2012 until November
2015 constituted sufficient minimum contacts; (2) GEM’s
legal counsel stipulated to a Nebraska venue in response to
Nimmer’s demands for cash payment for legal fees; and (3)
Nimmer’s claims of tortious conversion and violation of the
Uniform Deceptive Trade Practices Act constitute tortious acts
by GEM that are intentional, directed at Nebraska, and know-
ingly cause harm to Nimmer in Nebraska, thereby constituting
sufficient specific minimum contacts with Nebraska.
On January 12, 2017, the district court granted GEM’s
motion to dismiss, finding that the court lacked personal
jurisdiction over GEM.2 The court noted that the “factual
allegations on which [Nimmer] relies include contacts from
15 to 20 years ago, a forum selection clause from a 2008
fee agreement between [Nimmer] and DBC, and the fact that
[Nimmer] had provided legal services to GEM,” and that such
2
See Neb. Ct. R. Pldg. § 6-1112(b)(2). See, generally, § 6-1112(b).
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NIMMER v. GIGA ENTERTAINMENT MEDIA
Cite as 298 Neb. 630
was insufficient to constitute the requisite minimum contacts
between GEM and Nebraska. Nimmer appeals.
III. ASSIGNMENTS OF ERROR
Nimmer assigns, restated, that the trial court erred in (1)
finding that Nebraska did not have personal jurisdiction over
GEM and (2) dismissing Nimmer’s complaint with prejudice.
IV. STANDARD OF REVIEW
[1,2] When a jurisdictional question does not involve a fac-
tual dispute, the issue is a matter of law. An appellate court
reviews questions of law independently of the lower court’s
conclusion.3 When reviewing an order dismissing a party from
a case for lack of personal jurisdiction under § 6-1112(b)(2),
an appellate court examines the question of whether the non-
moving party has established a prima facie case of personal
jurisdiction de novo.4
[3] In reviewing the grant of a motion to dismiss, an appel-
late court must look at the facts in the light most favorable to
the nonmoving party and resolve all factual conflicts in favor
of that party.5
V. ANALYSIS
[4,5] Nimmer argues that the district court erred in find-
ing that the court lacked personal jurisdiction over GEM.
Personal jurisdiction is the power of a tribunal to subject and
bind a particular entity to its decisions.6 Before a court can
exercise personal jurisdiction over a nonresident defendant,
the court must determine, first, whether the long-arm statute
is satisfied and, if the long-arm statute is satisfied, second,
whether minimum contacts exist between the defendant and
3
S.L. v. Steven L., 274 Neb. 646, 742 N.W.2d 734 (2007).
4
VKGS v. Planet Bingo, 285 Neb. 599, 828 N.W.2d 168 (2013).
5
RFD-TV v. WildOpenWest Finance, 288 Neb. 318, 849 N.W.2d 107 (2014).
6
In re Petition of SID No. 1, 270 Neb. 856, 708 N.W.2d 809 (2006).
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NIMMER v. GIGA ENTERTAINMENT MEDIA
Cite as 298 Neb. 630
the forum state for personal jurisdiction over the defendant
without offending due process.7
On appeal, Nimmer makes three primary arguments regard-
ing personal jurisdiction. Nimmer first argues that specific per-
sonal jurisdiction exists over GEM because of GEM’s tortious
conversion and the Uniform Deceptive Trade Practices Act
claims. Nimmer also argues that general personal jurisdic-
tion exists over GEM because of Nimmer’s provision of legal
advice to GEM. Alternatively, Nimmer argues that general
personal jurisdiction exists over GEM due to the actions of
GEM’s “alter ego predecessor DBC.”8
1. Long-A rm Statute
[6] Nebraska’s long-arm statute, Neb. Rev. Stat. § 25-536
(Reissue 2016), extends Nebraska’s jurisdiction over nonresi-
dents having any contact with or maintaining any relation to
this state as far as the U.S. Constitution permits.9 Therefore, the
issue is whether GEM had sufficient contacts with Nebraska so
that the exercise of personal jurisdiction would not offend fed-
eral principles of due process.10
2. Minimum Contacts
[7-9] If the long-arm statute has been satisfied, a court must
then determine whether minimum contacts exist between the
defendant and the forum state for personal jurisdiction over
the defendant without offending due process.11 The bench-
mark for determining if the exercise of personal jurisdiction
satisfies due process is whether the defendant’s minimum
contacts with the forum state are such that the defendant
should reasonably anticipate being haled into court there.12
7
S.L. v. Steven L., supra note 3.
8
Brief for appellant at 14.
9
VKGS v. Planet Bingo, supra note 4.
10
See Erickson v. U-Haul Internat., 274 Neb. 236, 738 N.W.2d 453 (2007).
11
Id.
12
Id.
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NIMMER v. GIGA ENTERTAINMENT MEDIA
Cite as 298 Neb. 630
Due process for personal jurisdiction over a nonresident
defendant requires that the defendant’s minimum contacts
with the forum state be such that “‘maintenance of the suit
does not offend “traditional notions of fair play and substan-
tial justice.”’”13
[10-12] In analyzing personal jurisdiction, we consider the
quality and type of the defendant’s activities to decide whether
the defendant has the necessary minimum contacts with the
forum state to satisfy due process.14 Whether a forum state
court has personal jurisdiction over a nonresident defendant
depends on whether the defendant’s actions created substantial
connections with the forum state, resulting in the defendant’s
purposeful availment of the forum state’s benefits and pro-
tections.15 The “purposeful availment” requirement “‘ensures
that a defendant will not be haled into a jurisdiction solely as
a result of “random,” “fortuitous,” or “attenuated” contacts
. . . or of the “unilateral activity of another party or a third
person.”’”16 Jurisdiction is proper, however, where the con-
tacts proximately result from actions by the defendant himself
or herself that create a “‘“substantial connection”’” with the
forum state.17
[13-15] A court exercises two types of personal jurisdiction
depending upon the facts and circumstances of the case: gen-
eral personal jurisdiction or specific personal jurisdiction.18 To
satisfy general personal jurisdiction, the plaintiff’s claim does
not have to arise directly out of the defendant’s contacts with
the forum state if the defendant has engaged in “‘“continuous
and systematic general business contacts”’” with the forum
13
Quality Pork Internat. v. Rupari Food Servs., 267 Neb. 474, 481, 675
N.W.2d 642, 649 (2004), quoting Internat. Shoe Co. v. Washington, 326
U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945).
14
S.L. v. Steven L., supra note 3.
15
Erickson v. U-Haul Internat., supra note 10.
16
S.L. v. Steven L., supra note 3, 274 Neb. at 653, 742 N.W.2d at 741.
17
Id.
18
Erickson v. U-Haul Internat., supra note 10.
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state.19 If the defendant’s contacts are neither substantial nor
continuous and systematic, but the cause of action arises out of
or is related to the defendant’s contact with the forum, a court
may assert specific jurisdiction over the defendant, depending
on the quality and nature of such contact.20
(a) Specific Personal Jurisdiction Over GEM
Nimmer first argues that because his claims of tortious con-
version and violation of the Uniform Deceptive Trade Practices
Act are intentional torts, specific personal jurisdiction over
GEM exists. GEM contends that Nimmer has cited no authority
to support his assertions, nor does GEM have any meaningful
contacts with Nebraska; thus, GEM is not subject to specific
personal jurisdiction.
Nimmer cites to Neb. Rev. Stat. § 8-1112 (Reissue 2012),
which states:
Registering as a broker-dealer, issuer-dealer, agent,
investment adviser, or investment adviser representative
under the Securities Act of Nebraska or directly or indi-
rectly offering a security or investment adviser services in
this state shall constitute sufficient contact with this state
for the exercise of personal jurisdiction over such a per-
son in any action which arises under the act.
Nimmer relies heavily on Abdouch v. Lopez.21 In Abdouch,
the plaintiff filed suit against an out-of-state defendant and
his company because the defendant attempted to sell a book
through his company’s website, which the plaintiff contended
was a violation of her privacy rights. To determine whether
specific personal jurisdiction in Nebraska existed over the
company based on the online advertisement for the book,
this court, in Abdouch, applied the test set forth by the U.S.
Supreme Court in Calder v. Jones 22:
19
Id. at 249, 738 N.W.2d at 464.
20
S.L. v. Steven L., supra note 3.
21
Abdouch v. Lopez, 285 Neb. 718, 829 N.W.2d 662 (2013).
22
Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984).
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“‘[A] defendant’s tortious acts can serve as a source
of personal jurisdiction only where the plaintiff makes
a prima facie showing that the defendant’s 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].’”23
This court then quoted the Eighth Circuit Court, which
held that it “‘construe[s] the Calder effects test narrowly, and
hold[s] that, absent additional contacts, mere effects in the
forum state are insufficient to confer personal jurisdiction.’”24
We accordingly held that the plaintiff failed to prove that
Nebraska residents were targeted with the advertisement,
because the advertisement did not “expressly direct its offer
of sale to Nebraska.”25 We further explained that “the men-
tion of Nebraska here is incidental and was not included for
the purposes of having the consequences felt in Nebraska.”26
Furthermore, in response to the plaintiff’s contention that she
had a representative contact the defendant with her objec-
tion to his commercial use of her name and identity in his
advertisement, this court emphasized that “‘“it is essential in
each case that there be some act by which the defendant pur-
posefully avails itself of the privilege of conducting activities
within the forum State, thus invoking the benefits and protec-
tions of its laws.”’”27
In RFD-TV v. WildOpenWest Finance,28 we addressed per-
sonal jurisdiction based on the enforceability of the arbitra-
tion clause in a contract. RFD-TV, LLC (RFD), a Nebraska
23
Abdouch v. Lopez, supra note 21, 285 Neb. at 731, 829 N.W.2d at 674.
24
Id. at 732, 829 N.W.2d at 675.
25
Id. at 733, 829 N.W.2d at 675.
26
Id.
27
Id. at 734, 829 N.W.2d at 676 (emphasis in original), quoting Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174, 85 L. Ed. 2d 528
(1985).
28
RFD-TV v. WildOpenWest Finance, supra note 5.
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corporation, entered into an agreement with Sunflower
Broadband Corporation (Sunflower) in which the par-
ties agreed, among other things, to arbitration in Nebraska.
Knology, Inc., a television provider, purchased the assets of
Sunflower. Knology then became a wholly owned subsidiary of
WOW! Cable (WOW). We found that RFD had “failed to make
a prima facie case that [WOW and Knology] were subject to
the arbitration clause.”29 We explained that WOW and Knology
“were not signatories to the Sunflower Agreement” and that
they “did not expressly assume the agreement when they
purchased Sunflower’s assets.”30 Furthermore, we addressed
whether Nebraska had personal jurisdiction over WOW and
Knology. We stated:
Parties who reach out beyond one state and create
continuing relationships and obligations with citizens of
another state are subject to regulation and sanctions in
the other state for the consequences of their activities.
Mail and telephone communications sent by a defendant
into a forum may count toward the minimum contacts
that support jurisdiction, but, as we noted in Kugler Co.
v. Growth Products Ltd., [265 Neb. 505, 658 N.W.2d
40 (2003),] the existence of a contract with a party in a
forum state or the mere use of interstate facilities, such
as telephones and mail, does not, in and of itself, provide
the necessary contacts for personal jurisdiction. In Kugler
Co., we said we would also look at the prior negotiations
between the parties and the contemplated consequences of
their dealings.31
Accordingly, we held that while WOW and Knology paid
licensing fees to a party in Nebraska, occasionally used tele-
phone, email, and mail to discuss and pay invoices from RFD
over the course of 2 years, actual business dealings between
RFD and WOW and Knology were “extremely limited,”
29
Id. at 327, 849 N.W.2d at 115.
30
Id.
31
Id. at 328, 849 N.W.2d at 115-16.
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because WOW and Knology “paid to provide services based on
terms negotiated by other parties.”32 Therefore, we dismissed
the complaint for lack of personal jurisdiction.
Nimmer contends that GEM’s tortious conversion and viola-
tion of the Uniform Deceptive Trade Practices Act were both a
result of DBC’s decision to do a share-for-share exchange with
GEM rather than the initially agreed-upon statutory merger.
Nimmer argues that this alleged deception gave shareholders,
who had received the DBC shares on a tax-deferred basis,
two unappealing options upon exchange: pay taxes on GEM
shares or receive substitute GEM shares with lesser rights.
Nimmer alleges that the tortious conversion and violation
of the Uniform Deceptive Trade Practices Act were tortious
acts by GEM that were intentional and directed at Nimmer
in Nebraska, thereby constituting sufficient specific minimum
contacts with Nebraska. Nimmer directs us to an April 1, 2015,
“Dear Shareholder” letter from GEM and a June 4, 2015, email
from GEM requesting Nimmer to sign the restricted stock
award agreement as support for his contention that the contacts
were directed at Nebraska.
We disagree that Abdouch is helpful to Nimmer’s position.
In Abdouch, we construed the Calder effects test33 narrowly.
In determining whether the plaintiff sufficiently alleged that
the defendant’s tortious acts were “‘“uniquely or expressly
aimed”’ at the forum state,” this court found that the plaintiff
did not make a prima facie showing, because she had failed
to demonstrate “an intent to target and focus on Nebraska
residents.”34 We find similarly here.
The April 1, 2015, letter was a generic email letter sent to
all shareholders. As in Abdouch, Nimmer failed to demonstrate
that GEM “had an intent to target and focus on Nebraska
residents” with this generic email letter. Furthermore, this
email letter indicates merely that GEM used Nimmer as
32
Id. at 328, 849 N.W.2d at 116.
33
See Calder v. Jones, supra note 22.
34
Abdouch v. Lopez, supra note 21, 285 Neb. at 734, 829 N.W.2d at 675-76.
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legal counsel and sent Nimmer a generic shareholder letter.
Similar to the parties in RFD-TV, paying fees to a party in
Nebraska, “occasionally us[ing] telephone, e-mail, and mail to
discuss and pay invoices from RFD over the course of” sev-
eral years is not sufficient when actual business dealings are
“extremely limited.”35
Nimmer has provided no other proof of his business deal-
ings with GEM to supplement this correspondence, nor has
Nimmer demonstrated how any tortious consequences of this
letter were felt in Nebraska. In Nimmer’s fee arrangement let-
ters with DBC, he explains that he has a New York satellite
office from which he also transacts business as a New York
licensed attorney. Therefore, as in Abdouch, any impact upon
Nimmer as a resident of Nebraska was “incidental.”36 This
letter provides no basis in finding that GEM “‘“purposefully
avail[ed] itself of the privilege of conducting activities”’”
within Nebraska.37
We turn next to the June 4, 2015, email. We find that this
email also does not serve as a basis for recovery for either
tort claim. In contrast, we observe that this thread of emails
provides a basis to find that GEM disclosed the change from
a statutory merger to a share-for-share exchange and that
Nimmer simply declined to sign the restricted stock agreement
after being requested to do so. Therefore, Nimmer has failed
to plead facts that demonstrate the cause of action for the
tortious claims arising out of or related to GEM’s June 4 email
to Nimmer.
Finally, Nimmer does not explain how § 8-1112 is appli-
cable to his claims. Nimmer merely states in his propositions
of law that the offering of securities constitutes sufficient
minimum contacts. He has not indicated that GEM is a regis-
tered broker-dealer in Nebraska or that GEM has “directly or
35
See RFD-TV v. WildOpenWest Finance, supra note 5, 288 Neb. at 328, 849
N.W.2d at 116.
36
See Abdouch v. Lopez, supra note 21, 285 Neb. at 733, 829 N.W.2d at 675.
37
Id. at 734, 829 N.W.2d at 676 (emphasis omitted).
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indirectly offer[ed] a security or investment adviser services”
in Nebraska.38 Nimmer has not established specific personal
jurisdiction over GEM based solely based on tortious conduct
directed at Nebraska.
(b) Continued Retention of Nimmer
Nimmer next argues that GEM’s continued retention of
Nimmer for “transactional legal work from his Nebraska office
constitutes sufficient minimum contacts with Nebraska to con-
fer personal jurisdiction over GEM.”39 GEM argues that it “has
never done business in Nebraska and has never had any mean-
ingful operational or jurisdictional contacts of any kind within
the state.”40
In Burger King Corp. v. Rudzewicz,41 a leading case on the
issue of personal jurisdiction, the U.S. Supreme Court held
that an individual’s contract with an out-of-state party alone
cannot “automatically establish sufficient minimum contacts
in the other party’s home forum.”42 Instead, the Court stated
that courts must look at “prior negotiations and contemplated
future consequences, along with the terms of the contract and
the parties’ actual course of dealing” to determine whether the
defendant purposefully established minimum contacts within
the forum.43
Under this test, then, we must look to the terms of the con-
tract and the parties’ “actual course of dealing” to determine
whether the defendant purposefully established minimum con-
tacts within the forum.44 In determining whether the legal serv­
ices established minimum contacts in the forum, we analyze
38
See § 8-1112.
39
Brief for appellant at 16.
40
Brief for appellee at 13.
41
Burger King Corp. v. Rudzewicz, supra note 27.
42
Id., 471 U.S. at 478.
43
Id., 471 U.S. at 479.
44
See id.
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the “prior negotiations and contemplated future consequences”
of the relationship of the two parties.45
Thompson Hine, LLP v. Taieb,46 is relevant to this inquiry.
In this case, the D.C. Circuit Court held that Washington,
D.C., did not have personal jurisdiction over a Florida resi-
dent who retained lawyers in an Ohio law firm’s Washington,
D.C., office to represent him in a matter pending in Oregon.
The court reasoned that “[a] non-resident’s mere retention of a
D.C.-based service provider, absent any other deliberate con-
tact with the forum—demonstrated either by the terms of the
contract itself or by the non-resident’s actual dealings with the
District—cannot qualify as a ‘minimum contact.’”47
Nimmer is correct that while a contract alone does not
establish minimum contacts, the establishment of a continuing
relationship with obligations to the instate party could. But
no contract between Nimmer and GEM exists in the record.
Instead, Nimmer implies a contract by stating that GEM
retained and utilized him for legal services from May 2012
until November 2015, and thereafter settled Nimmer’s cash
claim for legal fees.
Nimmer asserts in his amended complaint and brief that he
represented GEM “from GEM’s inception on May 12, 2012
without interruption until November 12, 2015.” Nimmer fur-
ther argues on appeal that his legal representation of GEM was
composed of “legal advice, transactional work, securities law
compliance, and legal advice regarding litigation.”48 It appears
from Nimmer’s amended complaint that he advised GEM on
the disclosures for GEM’s filings from 2013 through 2015.
It also appears that Nimmer acted as legal counsel for GEM
in anticipation of the statutory merger based on the “Dear
Shareholder” letter, which states that Nimmer would receive
45
See id.
46
Thompson Hine, LLP v. Taieb, 734 F.3d 1187 (D.C. Cir. 2013).
47
Id. at 1194.
48
Brief for appellant at 12.
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and record the DBC certificates. But, it is unclear from the
record whether Nimmer performed this service, because he
later emailed GEM stating that he did not receive any certifi-
cates. It is also unclear whether this service was for GEM or
DBC. Thus, we are not persuaded that Nimmer has met his
burden to show that any contract between himself and GEM
was sufficient to support a finding of personal jurisdiction.
In this type of personal jurisdiction inquiry, courts also
consider the timeframe of the alleged contacts. In Johnson v.
Woodcock,49 the Eighth Circuit held that “‘[m]inimum con-
tacts must exist either at the time the cause of action arose,
the time the suit was filed, or within a reasonable period of
time immediately prior to the filing of the lawsuit,’” and
found that the contacts in that case, which occurred in the
1960’s to 1980’s, were not within a reasonable timeframe.
The court additionally found that occasional correspondence
between the parties was too attenuated to support a finding of
personal jurisdiction.
Nimmer claims that he provided representation for Sky
Cable, an affiliate of DBC located in Omaha. But by Nimmer’s
own admission, that representation occurred over 20 years
ago and did not involve GEM. We conclude that the contacts
between the forum state and Sky Cable are not within a rea-
sonable timeframe of the current allegations and thus are not
supportive of a finding of personal jurisdiction.
Nimmer has not shown that a substantial relationship
existed between GEM and the forum state based on the legal
services Nimmer provided to GEM. We agree with GEM that
Nimmer has not provided any details as to whether his legal
work for GEM pertained to disputes involving Nebraska,
issues arising under Nebraska law, or any connection beyond
the Nebraska location of one of his offices. As such, Nimmer
provides no basis for an understanding of any services ren-
dered to GEM in Nebraska. None of these contacts are such
that GEM should reasonably anticipate being haled into
49
Johnson v. Woodcock, 444 F.3d 953, 956 (8th Cir. 2006).
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court in Nebraska. We find Nimmer’s argument to be with-
out merit.
(c) General Personal Jurisdiction Over
GEM—DBC’s Alter Ego
Nimmer contends that “it is proper to ascribe the actions of
[GEM’s] alter ego predecessor DBC to GEM for general juris-
diction minimum contacts analysis.”50 In addition to the exten-
sive list of reasons in Nimmer’s amended complaint that GEM
is DBC’s predecessor, Nimmer contends in his brief that GEM
is DBC’s alter ego because (1) GEM was a creation of DBC for
purposes of reincorporation in Delaware and a name change;
(2) the ownership and management of GEM is the same as
those of the former DBC, primarily through Nerlinger’s sole
control of each; and (3) GEM has made numerous admissions
to DBC and GEM shareholders, and others, that GEM is a
mere continuation of DBC.
Nimmer cites several cases to illustrate that courts have
found successor corporations liable for the actions of a parent
corporation based on the theories of corporate successor liabil-
ity and contractual successor liability.51 Nimmer contends that
this court should apply those theories when ascribing minimum
contacts for personal jurisdiction.
In support of Nimmer’s argument for application of con-
tractual successor liability to personal jurisdiction, Nimmer
cites the Delaware Superior Court unpublished case Universal
Capital Mgmt., Inc. v. Micco World, Inc.52 In that case, the
plaintiff entered into two contracts with a corporation which
later merged into the defendant corporation. The two contracts
stated that they were binding on the parties and their respective
50
Brief for appellant at 16.
51
See, Pallas Shipping Agency, Ltd. v. Duris, 461 U.S. 529, 103 S. Ct. 1991,
76 L. Ed. 2d 120 (1983); Earl v. Priority Key Servs., 232 Neb. 584, 441
N.W.2d 610 (1989).
52
Universal Capital Mgmt., Inc. v. Micco World, Inc., No. 10C-07-039 RRC,
2011 WL 2347612 (Del. Super. June 2, 2011) (unpublished opinion).
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successors. The court acknowledged that the corporate merger
alone was insufficient to establish personal jurisdiction.53 But
the court looked at the defendant corporation’s conduct and
found that because it continued to operate under the terms of
the contracts, personal jurisdiction existed.
Nimmer also cites Clune v. Alimak AB,54 in which the
Eighth Circuit found in a wrongful death action that personal
jurisdiction existed over a parent corporation of a subsidiary
that distributed a defective product. The court held that the
contacts of the parent company and subsidiary were sufficient
to establish minimum contacts in the forum state. The court
emphasized that the parent company was a shell corporation
that had no employees or products to sell.55 We find that nei-
ther of these cases are persuasive under the facts of this case.
Contrary to Nimmer’s assertion, Universal Capital Mgmt.,
Inc. does not support the proposition that similar to successor
contractual liability, a predecessor’s contacts may be ascribed
to its successor for personal jurisdiction. Instead, the court
made clear that for purposes of personal jurisdiction, the court
must analyze the contacts of the defendant corporation “in its
own right,” and whether it “continued to operate under the
terms of the two contracts,” causing injury in the forum state.56
Furthermore, unlike in Clune, DBC is not the parent corpora-
tion of GEM, nor is GEM a shell company for purposes of
DBC’s liability. Therefore, the analysis in Clune is not relevant
under these facts.
Instead, we find Ashby v. State,57 to be persuasive. In Ashby,
we refused to extend a coconspirator liability theory to mini-
mum contacts for purposes of establishing personal jurisdic-
tion. We declined to reach the issue, noting:
53
Id.
54
Clune v. Alimak AB, 233 F.3d 538 (8th Cir. 2000).
55
Id.
56
Universal Capital Mgmt., Inc. v. Micco World, Inc., supra note 52, 2011
WL 2347612 at *5.
57
Ashby v. State, 279 Neb. 509, 779 N.W.2d 343 (2010).
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Due process for personal jurisdiction over a nonresident
defendant requires that the plaintiff allege specific acts
by the defendant which establish that the defendant had
the necessary minimum contacts before a Nebraska court
can exercise jurisdiction over a person. Without minimum
contacts, a Nebraska court cannot exercise jurisdiction
over [the defendant] without violating his right to due
process. The difficulty with establishing personal jurisdic-
tion based on an alleged conspiracy is that it merges the
jurisdiction issue with the merits of the case.58
We do not revisit this decision. As such, we decline Nimmer’s
invitation to incorporate successor liability and contractual suc-
cessor liability for minimum contacts for purposes of personal
jurisdiction under these facts.
Finally, we reject Nimmer’s assertion that GEM’s legal
counsel stipulated to Nebraska venue. In support of this con-
tention, Nimmer relies on emails sent to him from Pafford.
These emails include discussions for a proposed settlement
upon Nimmer’s withdrawal from legal representation. There is
no indication that Nimmer accepted this offer. That the dispute
was not settled prior to trial provides a basis for this court to
find that Nimmer did not accept GEM’s proposed settlement.
As established above, accepting Nimmer’s allegations as true
and reviewing the record in a light most favorable to Nimmer,
we find that Nimmer’s amended complaint and general allega-
tions failed to show that GEM made substantial connections
with Nebraska resulting in GEM’s purposeful availment of
Nebraska’s benefits and protections. Nimmer’s assignment of
error is without merit.
(d) Whether District Court Erred in
Dismissing Nimmer’s Complaint
With Prejudice
Nimmer argues that the district court erred in dismissing
his complaint with prejudice. GEM argues that a dismissal
58
Id. at 532, 779 N.W.2d at 360-61.
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with prejudice was appropriate because “Nimmer was given a
chance to amend his complaint, and after full briefing on this
amended complaint, the district court entered its order of dis-
missal with prejudice.”59
In support of his argument, Nimmer cites RFD-TV v.
WildOpenWest Finance,60 in which RFD asserted that the
district court erred in dismissing the case with prejudice.
We stated:
There is no statutory grant of judicial discretion to
decide whether to dismiss with or without prejudice on a
motion to dismiss for lack of personal jurisdiction. Thus,
we find this issue to be a question of law. The Eighth
Circuit has said that “a dismissal with prejudice oper-
ates as a rejection of the plaintiff’s claims on the merits
and res judicata precludes further litigation.” However,
the Full Faith and Credit Clause of the U.S. Constitution
requires a court to recognize a judgment from another
jurisdiction only if the court rendering the judgment had
jurisdiction over the subject matter and parties. Thus, a
dismissal for lack of personal jurisdiction, even a dis-
missal with prejudice, should not prevent RFD from pur-
suing its claims in an appropriate forum.
On the other hand, a dismissal with prejudice would
preclude RFD from filing a second suit with the same
claims in a Nebraska court. . . . However, as noted by
the Eighth Circuit in Pohlmann v. Bil-Jax, Inc., [176 F.3d
1110 (8th Cir. 1999),] because personal jurisdiction is
determined at the time a suit is commenced, it is possible
that due to future events, this legal situation could change.
Although it seems unlikely under the facts of this case, if,
for example, appellees were to relocate to Nebraska, then
personal jurisdiction over appellees in a subsequent suit
could be proper in this state.
59
Brief for appellee at 27.
60
RFD-TV v. WildOpenWest Finance, supra note 5.
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We also note that in this case, both parties agreed in
briefs and in arguments before this court that the dis-
missal should have been without prejudice.61
For these reasons, we reversed the district court’s opinion and
modified the order to a dismissal without prejudice.
We agree that generally a trial court’s dismissal of a claim
for lack of personal jurisdiction must be without prejudice.
This follows from the premise that a court lacking jurisdiction
cannot adjudicate the merits of a claim.62 Here, as in RFD-TV,
it is possible that personal jurisdiction could be found in a
subsequent lawsuit. But that does not mean that a dismissal
for lack of jurisdiction can never have preclusive effect. If
a subsequent suit presented no different circumstances, the
same result would necessarily follow. Thus, in that sense, the
dismissal could be described as “with prejudice.” Generally
speaking, it is better to adhere to the articulation of a dismissal
without prejudice. For this reason, we find that the district
court erred in dismissing the case with prejudice and its order
is modified to a dismissal without prejudice.
VI. CONCLUSION
For the foregoing reasons, the decision of the district court
is affirmed as modified.
A ffirmed as modified.
Wright, J., not participating in the decision.
61
Id. at 329-30, 849 N.W.2d at 116-17.
62
Cf. 20 Am. Jur. 2d Courts § 53 (2015).