Central States Dev. v. Friedgut ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/16/2022 08:04 AM CST
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CENTRAL STATES DEV. V. FRIEDGUT
Cite as 312 Neb. 909Central States Development, LLC, and
Saint James Apartment Partners, LLC,
appellants, v. Elizabeth Friedgut
and DLA Piper, LLP, appellees.
___ N.W.2d ___
Filed November 18, 2022. No. S-21-818.
1. Motions to Dismiss: Jurisdiction: Pleadings: Evidence. When a trial
court relies solely on pleadings and supporting affidavits in ruling on a
motion to dismiss for want of personal jurisdiction, the plaintiff need
only make a prima facie showing of jurisdiction to survive the motion.
However, if the court holds an evidentiary hearing on the issue or
decides the matter after trial, then the plaintiff bears the burden of dem-
onstrating personal jurisdiction by a preponderance of the evidence.
2. Jurisdiction: Appeal and Error. An appellate court examines the ques-
tion 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, second, whether
minimum contacts exist between the defendant and the forum state for
personal jurisdiction over the defendant without offending due process.
6. Jurisdiction: States: Legislature: Intent. It was the intention of the
Legislature to provide for the broadest allowable jurisdiction over non-
residents under Nebraska’s long-arm statute.
7. Due Process: Jurisdiction: States. When a state construes its long-
arm statute to confer jurisdiction to the fullest extent constitutionally
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CENTRAL STATES DEV. V. FRIEDGUT
Cite as 312 Neb. 909permitted, the inquiry collapses into the single question of whether
jurisdiction comports with due process.
8. Jurisdiction: States. To constitute sufficient minimum contacts, a
defendant’s conduct and connection with the forum state must be such
that he or she should reasonably anticipate being haled into court there.
9. ____: ____. 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.
10. Jurisdiction. General personal jurisdiction arises where a defendant’s
affiliations with a state are so continuous and systematic as to render the
defendant essentially at home in the forum state.
11. Jurisdiction: Words and Phrases. Specific personal jurisdiction
requires that a claim arise out of or relate to the defendant’s contacts
with the forum.
12. ____: ____. For specific personal jurisdiction, there must be a substan-
tial connection between the defendant’s contacts with the forum state
and the operative facts of the litigation.
13. ____: ____. Specific personal jurisdiction is confined to adjudication of
issues deriving from, or connected with, the very controversy that estab-
lishes jurisdiction.
14. Jurisdiction: States: Contracts. The existence of a contract with a
party in a forum state does not, in and of itself, provide the necessary
contacts for personal jurisdiction.
Appeal from the District Court for Douglas County: Marlon
A. Polk, Judge. Affirmed.
Richard P. McGowan, of McGowan Law Firm, P.C., L.L.O.,
for appellants.
Joseph S. Daly and Mary M. Schott, of Evans & Dixon,
L.L.C., and Martin J. O’Hara, of Much Shelist, P.C., pro hac
vice, for appellees.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Funke, J.
INTRODUCTION
Central States Development, LLC (Central States), and Saint
James Apartment Partners (SJ Apartment) appeal the dismissal
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CENTRAL STATES DEV. V. FRIEDGUT
Cite as 312 Neb. 909of their complaint against Elizabeth Friedgut and the law firm
of DLA Piper, LLP.
Friedgut, as an employee of DLA Piper, represented Central
States and SJ Apartment in a dispute with the U.S. Department
of Housing and Urban Development (HUD). Central States
and SJ Apartment sued Friedgut and DLA Piper in connection
with that representation, alleging legal malpractice. The district
court found Friedgut and DLA Piper did not have the requisite
minimum contacts with Nebraska for the court to have personal
jurisdiction. Central States and SJ Apartment appeal. For the
reasons set forth herein, we affirm.
BACKGROUND
Central States is a limited liability company operating in
Nebraska and elsewhere. Its activities include developing and
managing low- and moderate-income housing. Central States
owns and operates apartment complexes that contract with
HUD. HUD provides funds to Central States through “Housing
Assistance Payment” (HAP) contracts that amount to all or a
significant portion of a tenant’s rent. Resultingly, a specific
complex’s primary source of revenue can consist of these pay-
ments by HUD rather than payments by tenants.
SJ Apartment is a Nebraska limited liability company. At
all relevant times, Central States was the managing member
of SJ Apartment and John Foley was the sole manager of
Central States. Foley created SJ Apartment to acquire and
develop an Omaha, Nebraska, apartment complex known as St.
James Manor.
The prior owner of St. James Manor operated the complex
in connection with a HAP contract. Central States and SJ
Apartment applied for and were awarded tax credits from the
Nebraska Investment Finance Authority to buy and develop
St. James Manor. As part of the project, the prior owner
assigned its interest in its HAP contracts for the property to
SJ Apartment.
Foley solicited Friedgut’s legal representation in order to
obtain HUD’s approval of the HAP assignment. Friedgut’s
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CENTRAL STATES DEV. V. FRIEDGUT
Cite as 312 Neb. 909practice focused on federal law, and she had experience work-
ing as legal counsel at HUD and with HAP contracts. Central
States had a preexisting relationship with Friedgut insofar as
it had initially retained her after its Missouri-based mortgage
lender recommended it seek her services on an issue involving
another property. Foley initially contacted Friedgut for assist­
ance with a HUD-related issue involving a property in Iowa.
He did so by calling her office in Chicago, Illinois.
Friedgut is a resident of Illinois and a former employee of
DLA Piper’s office in Chicago, Illinois. Central States and SJ
Apartment’s allegations concern Friedgut’s representation of
them while she was an employee of DLA Piper. Friedgut has
never been licensed to practice law in Nebraska, has never been
admitted pro hac vice in Nebraska, and has never appeared in
any Nebraska court. Friedgut stated in her affidavit that she
represented Central States and SJ Apartment without setting
foot in Nebraska in relation to them or St. James Manor.
The director of operations for the office of general counsel
at DLA Piper stated in his affidavit that DLA Piper was orga-
nized in Maryland and that its principal place of business is
in Maryland. It does not have a Nebraska office, nor does it
own or lease property in Nebraska, have a registered agent in
Nebraska, have any employees or partners living in Nebraska,
or have any attorneys with an active license to practice law in
Nebraska. DLA Piper has a website that is generally accessible
but that is not directed at Nebraska or Nebraska residents.
HUD is a federal agency, and HAP is a federal program.
Friedgut communicated with Foley regarding HUD issues
involving properties in Nebraska, Kansas, Iowa, and Colorado.
She communicated with HUD on Foley’s behalf in connec-
tion with St. James Manor and other properties outside of
Nebraska. Her affidavit provides that she communicated with
HUD exclusively through HUD’s regional office in Kansas
City, Kansas, and headquarters in Washington, D.C. Friedgut
has no recollection of communicating with HUD’s local
office in Omaha on behalf of Central States or SJ Apartment.
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CENTRAL STATES DEV. V. FRIEDGUT
Cite as 312 Neb. 909The Kansas City office was her primary point of contact with
HUD. Friedgut was not involved in Central States and SJ
Apartment’s acquisition of St. James Manor or the award of
tax credits by the Nebraska Investment Finance Authority.
She maintains that her involvement relating to each of Central
States’ properties was specific to issues with HUD. Foley did,
at some point, have Nebraska counsel, and Friedgut’s affidavit
provides that Foley “increasingly relied on his Nebraska coun-
sel” in 2019.
Friedgut and DLA Piper regularly billed Central States and
SJ Apartment for Friedgut’s services by mailing invoices to
Foley in Omaha, and Foley made payments on those invoices.
Foley’s affidavit provides that Friedgut communicated with
him orally and in writing, participating in “dozens” of phone
calls with him while he was in Omaha. Friedgut also partici-
pated in phone calls with other Nebraska-based parties in her
representation of Central States and SJ Apartment, including
the property manager and employees of St. James Manor, the
prior owner of St. James Manor, and other counsel. She did not
interact with Nebraska state officials or tenants of St. James
Manor. Friedgut and DLA Piper never sent Foley an engage-
ment letter or written services agreement, suggested a need for
independent counsel, or otherwise expressly disavowed per-
sonal jurisdiction in Nebraska.
Friedgut was representing Central States and SJ Apartment
when HUD indicated that it would not approve the prior
owner’s assignment of its HAP contract. Central States and
SJ Apartment allege that HUD’s unwillingness to approve the
HAP assignment was “arbitrary and capricious,” “completely
irrational,” and “contrary to HUD policy goals.” Despite that,
Central States and SJ Apartment allege that Friedgut did not
seek reconsideration of the decision, a further meeting, or any
appeal; when Foley asked about appeal, Friedgut responded
she was unaware of any such process even though an appeal
process was available; and no timely appeal was brought.
Central States and SJ Apartment further allege that because
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CENTRAL STATES DEV. V. FRIEDGUT
Cite as 312 Neb. 909the HAP assignment was not approved, SJ Apartment was
unable to receive any meaningful rental income through HUD
payments or otherwise and filed for bankruptcy protection;
SJ Apartment sued HUD through Nebraska counsel and con-
vinced HUD to retroactively approve the HAP assignment;
and by that time, retroactive approval was futile because SJ
Apartment had already lost St. James Manor to foreclosure in
bankruptcy proceedings.
In December 2020, Central States and SJ Apartment filed a
complaint in the district court for Douglas County, Nebraska,
against Friedgut and DLA Piper alleging legal malpractice.
Friedgut and DLA Piper subsequently moved to dismiss, argu-
ing a lack of personal jurisdiction over themselves in the State
of Nebraska.
The district court held a hearing to address the jurisdictional
issue, and evidence was received. At the hearing, Friedgut and
DLA Piper emphasized that Friedgut did not initiate or solicit
contact with Foley to commence the parties’ relationship.
Friedgut and DLA Piper argued that Friedgut’s representation
of Central States and SJ Apartment exclusively concerned fed-
eral law and HUD. Friedgut and DLA Piper maintained that
the location of St. James Manor was not determinative.
At the hearing, the district court compared the case to
Yeransian v. Willkie Farr 1 in explaining its conclusion that
Friedgut and DLA Piper “[had] not purposefully availed them-
selves to the jurisdiction of Nebraska and would not expect
to be haled into court [in the state].” The district court found
it important that Foley initially reached out to Friedgut in
Chicago to solicit her services.
The district court dismissed Central States and SJ
Apartment’s complaint on September 13, 2021. This appeal
followed. Before the Court of Appeals addressed the appeal,
we moved it to our docket. 2
1
Yeransian v. Willkie Farr, 305 Neb. 693, 942 N.W.2d 226 (2020).
2
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020).
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CENTRAL STATES DEV. V. FRIEDGUT
Cite as 312 Neb. 909ASSIGNMENT OF ERROR
Central States and SJ Apartment assign, restated, that the
district court erred in finding that the court lacked personal
jurisdiction over Friedgut and DLA Piper.
STANDARD OF REVIEW
[1] When a trial court relies solely on pleadings and sup-
porting affidavits in ruling on a motion to dismiss for want
of personal jurisdiction, the plaintiff need only make a prima
facie showing of jurisdiction to survive the motion. 3 However,
if the court holds an evidentiary hearing on the issue or decides
the matter after trial, then the plaintiff bears the burden of
demonstrating personal jurisdiction by a preponderance of
the evidence. 4
[2,3] An appellate court examines the question of whether
the nonmoving party has established a prima facie case of per-
sonal jurisdiction de novo. 5 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. 6
ANALYSIS
[4,5] Because the district court’s hearing was on the issue
of personal jurisdiction and the evidence received was limited
to affidavits with accompanying exhibits, we review de novo
the legal question of whether a prima facie case of personal
jurisdiction has been established. 7 Personal jurisdiction is the
power of a tribunal to subject and bind a particular entity to
its decisions. 8 The Due Process Clause of the 14th Amendment
to the U.S. Constitution bars a court from exercising personal
3
RFD-TV v. WildOpenWest Finance, 288 Neb. 318, 849 N.W.2d 107 (2014).
4
Id.5
Yeransian, supra note 1.
6
RFD-TV, supra note 3.
7
See id.
8
See Yeransian, supra note 1.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CENTRAL STATES DEV. V. FRIEDGUT
Cite as 312 Neb. 909jurisdiction over an out-of-state defendant, served with process
outside the state, unless that defendant has sufficient ties to the
forum state. 9 Thus, before a court can exercise personal juris-
diction over a nonresident defendant, the court must determine,
first, whether the state’s long-arm statute is satisfied and, sec-
ond, whether minimum contacts exist between the defendant
and the forum state for the court to exercise personal jurisdic-
tion over the defendant without offending due process. 10 When
contested, the burden of proving a forum court has personal
jurisdiction falls on the plaintiffs. 11
[6,7] Nebraska’s long-arm statute extends its courts’ juris-
diction over a person who falls into one of the categories
enumerated under the statute or who has “any other contact
with or maintains any other relation to this state to afford a
basis for the exercise of personal jurisdiction consistent with
the Constitution of the United States.” 12 It was the intention of
the Legislature to provide for the broadest allowable jurisdic-
tion over nonresidents under Nebraska’s long-arm statute. 13
When, like here, a state construes its long-arm statute to
confer jurisdiction to the fullest extent constitutionally permit-
ted, the inquiry collapses into the single question of whether
jurisdiction comports with due process. 14 Therefore, the issue
is whether Friedgut and DLA Piper had sufficient minimum
contacts with Nebraska so that the exercise of personal juris-
diction would not offend traditional notions of fair play and
substantial justice. 15
9
Hand Cut Steaks Acquisitions v. Lone Star Steakhouse, 298 Neb. 705, 905
N.W.2d 644 (2018).
10
Yeransian, supra note 1.
11
See Nimmer v. Giga Entertainment Media, 298 Neb. 630, 905 N.W.2d 523(2018).
12
See Neb. Rev. Stat. § 25-536 (Reissue 2016).
13
Yeransian, supra note 1.
14
Id.15
See id.- 917 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CENTRAL STATES DEV. V. FRIEDGUT
Cite as 312 Neb. 909Minimum Contacts
[8-11] To constitute sufficient minimum contacts, a defend­
ant’s conduct and connection with the forum state must be
such that he or she should reasonably anticipate being haled
into court there. 16 In other words, a Nebraska court’s ability
to impose liability should be predictable to the parties before
the court based on their own actions. 17 A court exercises two
types of personal jurisdiction depending upon the facts and
circumstances of the case: general personal jurisdiction or spe-
cific personal jurisdiction. 18 General personal jurisdiction arises
where a defendant’s affiliations with a state are so continuous
and systematic as to render the defendant essentially at home
in the forum state. 19 Specific personal jurisdiction, by contrast,
requires that a claim arise out of or relate to the defendant’s con-
tacts with the forum. 20 Friedgut and DLA Piper do not appear to
have “continuous and systematic” connections with Nebraska;
nor are they “essentially at home” in the state. Rather, Central
States and SJ Apartment maintain that the district court had spe-
cific personal jurisdiction over Friedgut and DLA Piper.
Specific Personal Jurisdiction
[12,13] Where a defendant’s contacts with the forum state
are insufficient to exercise general personal jurisdiction, spe-
cific personal jurisdiction is available if the claim arises out
of or sufficiently relates to the defendant’s contacts with
the forum in a way that creates a substantial connection
between the defendant’s connections to the forum state and the
16
Id.17
See, e.g., World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100
S. Ct. 559, 62 L. Ed. 2d 490 (1980) (“[t]he Due Process Clause . . . gives a
degree of predictability to the legal system that allows potential defendants
to structure their primary conduct with some minimum assurance as to
where that conduct will and will not render them liable to suit”).
18
Yeransian, supra note 1.
19
Id.20
Id.- 918 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CENTRAL STATES DEV. V. FRIEDGUT
Cite as 312 Neb. 909operative facts of the litigation. 21 Naturally, then, specific per-
sonal jurisdiction is confined to adjudication of issues deriving
from, or connected with, the very controversy that establishes
jurisdiction. 22 Purposeful availment is essential to any finding
of personal jurisdiction. 23 Accordingly, here, we must consider
the quality and type of Friedgut’s and DLA Piper’s activities
and determine whether their actions create substantial connec-
tions with Nebraska, resulting in their purposeful availment of
Nebraska’s benefits, protections, and laws.
[14] Central States and SJ Apartment correctly argue that
physical presence in the forum state is not always necessary
to establish personal jurisdiction. In Williams v. Gould, Inc., 24
we explained: “Despite lack of physical presence in the state
where a contract is to be performed, a nonresident defendant,
who purposefully directs activities toward a forum state’s resi-
dents, through such contract, may be constitutionally subjected
to suit in the state where the contract is to be performed.”
Pointing to Williams, Central States and SJ Apartment con-
tend that Friedgut and DLA Piper purposefully availed them-
selves of the privileges of conducting activity in Nebraska by
entering into an attorney-client relationship with “Nebraska
entities” for which they billed their services. 25 However, the
existence of a contract with a party in a forum state does not,
in and of itself, provide the necessary contacts for personal
jurisdiction. 26
In Williams, an out-of-state physician contacted a lead refin-
ery and proposed terms for a contract engaging his serv­
ices as a long-term consultant regarding lead poisoning. 27 We
21
See id.22
Id.23
Id.24
Williams v. Gould, Inc., 232 Neb. 862, 879, 443 N.W.2d 577, 588 (1989).
25
Brief for appellant at 11.
26
Yeransian, supra note 1.
27
See Williams, supra note 24.
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CENTRAL STATES DEV. V. FRIEDGUT
Cite as 312 Neb. 909c­ oncluded that under the facts and circumstances, a Nebraska
court’s exercise of specific personal jurisdiction over the physi-
cian was appropriate. 28 In examining similar cases from other
jurisdictions, we found that it was the defendant’s purposeful
act of soliciting patients from the forum state which provided
the necessary foreseeability of being haled into court in the
forum state and allowed personal jurisdiction to attach. 29 We
emphasized, however, that the residence and activities of a
physician’s patient cannot, unilaterally, supply the minimum
contacts necessary for due process. 30
Here, the parties agree that Foley reached out to Friedgut
at her Chicago office after a third party recommended her.
Friedgut represented Nebraska entities, but she did not solicit
Nebraska residents or entities as clients. Neither, in this case,
did DLA Piper. The district court noted this point when distin-
guishing the case from Williams.
[In] determining whether our courts have jurisdiction over
a plaintiff’s current or former out-of-state attorney, and inso-
far as it informs our “purposeful availment” analysis, we may
consider which party’s actions effectively initiated an attorney-
client relationship. 31 Pointedly, a Nebraska-based client will
not provide a sufficient basis for specific personal jurisdic-
tion over a nonresident attorney absent the solicitation of
Nebraska-based clients or something else linking the attorney
to the state. 32
Outside of Nebraska, “case law overflows on the point
that providing out-of-state legal representation is not enough
28
See id.29
See id.30
See id.31
Cf. Williams, supra note 24, 232 Neb. at 881, 443 N.W.2d at 589 (“when
a health care provider, such as a physician or hospital, purposefully directs
activities toward a resident of the forum state, the provider is subject
to the personal jurisdiction of courts in the state where the health care
recipient resides”).
32
See Yeransian, supra note 1.
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CENTRAL STATES DEV. V. FRIEDGUT
Cite as 312 Neb. 909to subject an out-of-state lawyer or law firm to the personal
jurisdiction of the state in which a client resides.” 33 Other
jurisdictions generally support the proposition that a non-
resident attorney providing expertise specific to federal law or
another state’s law is not subject to a state’s jurisdiction solely
based on a client’s or third party’s residency and activities in
the forum state. 34 As noted by Friedgut and DLA Piper, the
plaintiff cannot be the only link between the defendant and
the forum. 35 Rather, it is the defendant’s conduct that must
form the necessary connection with the forum State that is the
basis for its jurisdiction over the defendant. 36
In a case factually similar to the matter before us, the
Indiana Supreme Court rejected an argument that specific per-
sonal jurisdiction should attach. 37 In Boyer v. Smith, employers
brought claims, including malicious prosecution and abuse of
process, against a Kentucky-based attorney. 38 The ­employers’
33
Cape v. von Maur, 932 F. Supp. 124, 128 (D. Md. 1996) (citing Sher v.
Johnson, 911 F.2d 1357 (9th Cir. 1990); Austad Co. v. Pennie & Edmonds,
823 F.2d 223 (8th Cir. 1987); Kowalski v. Doherty, Wallace, Pillsbury &
Murphy, 787 F.2d 7 (1st Cir. 1986); and Mayes v. Leipziger, 674 F.2d 178(2d Cir. 1982)).
34
See, e.g., Companion Property and Cas. Ins. Co. v. Palermo, 723 F.3d 557(5th Cir. 2013); Boyer v. Smith, 42 N.E.3d 505 (Ind. 2015); Fulbright &
Jaworski v. Eighth Jud. Dist., 131 Nev. 30, 342 P.3d 997 (2015); Cerberus
Partners v. Gadsby & Hannah, LLP, 836 A.2d 1113 (R.I. 2003). See, also,
Sawtelle v. Farrell, 70 F.3d 1381 (1st Cir. 1995); Porter v. Berall, 142 F.
Supp. 2d 1145 (W.D. Mo. 2001), affirmed 293 F.3d 1073 (8th Cir. 2002);
Ex parte Dill, Dill, Carr, Stonbraker, 866 So. 2d 519 (Ala. 2003).
35
See Walden v. Fiore, 571 U.S. 277, 134 S. Ct. 1115, 188 L. Ed. 2d 12(2014).
36
See id. See, also, Helicopteros Nacionales de Colombia v. Hall, 466
U.S. 408, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984) (unilateral activity
of another person not appropriate consideration in determining whether
defendant has sufficient contacts with forum to justify assertion of
jurisdiction).
37
See Boyer, supra note 34.
38
See id.
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Cite as 312 Neb. 909suit was filed in Indiana and related to the attorney’s repre-
sentation of a former employee in a federal employment dis-
crimination lawsuit. 39 In the underlying matter, the attorney
had requested and received a notice of right to sue from the
Indianapolis, Indiana, office of the U.S. Equal Employment
Opportunity Commission (EEOC), a federal agency, after her
client’s pro se claim was transferred from the Ohio EEOC
office. 40 The attorney then filed the lawsuit in a Kentucky
federal district court. 41 The employers argued that the attorney
had subjected herself to Indiana jurisdiction by communicating
with the Indiana EEOC, corresponding with and sending docu-
ments to the employers’ Indiana attorney, and representing her
client at a deposition in Indiana. 42 But the Indiana Supreme
Court disagreed, finding the attorney’s contacts with Indiana
far too minimal to warrant specific personal jurisdiction. 43 In
so holding, the Indiana Supreme Court noted that the attor-
ney had never practiced law in Indiana, had never sought or
obtained a license to practice law in Indiana, and was not solic-
iting business in Indiana. 44
The Eighth Circuit Court of Appeals conducted a com-
parable analysis in Austad Co. v. Pennie & Edmonds. 45 In
Austad Co., a South Dakota business sued a New York-based
law firm, alleging legal malpractice and breach of fiduciary
duty. 46 The claim was based on the firm’s representation of
39
See id.40
See id.41
See id. See, also, Boyer v. Smith, 24 N.E.3d 435 (Ind. App. 2014), vacated
37 N.E.3d 960 (Ind. 2015), and affirmed in part and in part vacated 42
N.E.3d 505 (Ind. 2015).
42
Id.43
Id.44
Id.45
Austad Co., supra note 33.
46
Id.
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Cite as 312 Neb. 909the business in patent litigation in Maryland. 47 The firm’s
contacts with South Dakota included numerous phone calls
into the state, monthly bills mailed into the state, checks paid
by a South Dakota bank, and a 3-day visit to South Dakota by
agents of the firm to inspect documents. 48 The Eighth Circuit
found these contacts insufficient to establish that the firm
purposefully availed itself of the benefits of South Dakota
law. 49 In affirming the district court’s dismissal of the claim,
the Eighth Circuit noted, among other factors, that the firm
did not maintain an office, advertise, or solicit business in
South Dakota. 50
Central States and SJ Apartment emphasize that St. James
Manor is in Nebraska and that “the damage to the Nebraska
clients occurred in Nebraska, when they lost their Nebraska
development project to foreclosure in Nebraska.” 51 This same
“effects of misconduct” approach has been rejected by other
courts. 52 Further, as the U.S. Supreme Court held in Walden 53:
[A]n injury is jurisdictionally relevant only insofar as it
shows that the defendant has formed a contact with the
forum State. The proper question is not where the plain-
tiff experienced a particular injury or effect but whether
the defendant’s conduct connects him to the forum in a
meaningful way.
47
Id.48
Id.49
Id.50
Id.51
Brief for appellant at 11.
52
See, e.g., Sawtelle v. Farrell, 70 F.3d 1381 (1st Cir. 1995) (legal
malpractice); Federal Deposit Ins. Corp. v. Malmo, 939 F.2d 535 (8th
Cir. 1991) (legal malpractice); Wright v. Yackley, 459 F.2d 287 (9th Cir.
1972) (medical malpractice); Poole v. Sasson, 122 F. Supp. 2d 556 (E.D.
Pa. 2000) (accountant malpractice); State ex rel. Sperandio v. Clymer, 581
S.W.2d 377 (Mo. 1979) (medical malpractice).
53
Walden, supra note 35, 571 U.S. at 290.
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CENTRAL STATES DEV. V. FRIEDGUT
Cite as 312 Neb. 909We are not persuaded that the location of St. James Manor
provided Friedgut and DLA Piper with a meaningful connec-
tion to Nebraska when the legal benefit their clients sought was
a contract with a federal agency and through a federal program,
under which St. James Manor could just as well have been in
another state. We are also not persuaded that the Nebraska-
specific injuries alleged by Central States and SJ Apartment,
including the loss of St. James Manor, provided Friedgut and
DLA Piper a meaningful connection to Nebraska.
Central States and SJ Apartment have not met their burden
of demonstrating that a Nebraska court can constitutionally
exercise specific personal jurisdiction over Friedgut and DLA
Piper. The facts show that Foley reached out to Friedgut at
her Chicago office, hoping she could help Central States and
SJ Apartment navigate a dispute with a federal agency and
facilitate approval of a contract through a federal program.
Further, Friedgut performed all of her work from Illinois, she
was never licensed to practice law in Nebraska, she never trav-
eled to Nebraska for the case, she never filed suit in Nebraska,
and she never provided in-court representation in Nebraska.
Additionally, neither Friedgut nor DLA Piper had offices in
Nebraska or ever advertised in or solicited any business from
Nebraska. This informs a finding that Friedgut and DLA Piper
did not purposefully avail themselves of the privilege of trans-
acting business in Nebraska. Further, it appears that Friedgut’s
representation was specific to HUD and federal law; as such,
we are unconvinced that she and DLA Piper reasonably antici-
pated being haled into a Nebraska court in connection with
this representation.
Central States and SJ Apartment further argue that Friedgut
and DLA Piper should have anticipated being haled into a
Nebraska court because, as a sophisticated attorney and an
international law firm, they could easily have provided Central
States and SJ Apartment with an engagement letter expressly
disavowing Nebraska jurisdiction. We are not persuaded that
the sophistication of legal professionals contorts the applicable
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312 Nebraska Reports
CENTRAL STATES DEV. V. FRIEDGUT
Cite as 312 Neb. 909analysis in such a way, and we are unwilling to impose the
high standard suggested.
Finally, Foley’s affidavit maintains that Friedgut’s represen-
tation of Central States and SJ Apartment “went beyond mere
HUD matters.” Without more, however, conclusory statements
such as these provide an insufficient basis for an exercise of
specific personal jurisdiction. Due process requires more than
the attenuated contacts before us. 54
CONCLUSION
The district court did not err in dismissing Central States
and SJ Apartment’s complaint for lack of personal jurisdiction.
Affirmed.
Miller-Lerman, J., participating on briefs.
54
See Walden, supra note 35.