Opinion
No. 4:18-cv-00331-JAJ-CFB
2019-05-09
Glenn GOLDEN and G2 Database Marketing, Inc., Plaintiffs, v. Jonathan A. STEIN, Defendant. Jonathan Stein, dba Law Offices of Jonathan Stein, Counterclaimant, v. Glenn Golden, dba G2 Database Marketing; and G2 Database Marketing, Inc., Counterclaim Defendants. Jonathan Stein, dba Law Offices of Jonathan Stein, Third-Party Claimant, v. White Zuckerman Warsavsky Luna & Hunt, L.L.P.; Aaron & Gianna APC; and Roes 1-100, inclusive, Third-Party Defendants.
Benjamin Granfield Arato, Steven P. Wandro, Alison Florence Kanne, Wandro & Associates, P.C., Des Moines, IA, for Plaintiffs/Counterclaim Defendants G2 Database Marketing, Inc., Glenn Golden. David J. Dutton, Joshua M. Moon, Dutton Daniels Hines Kalkhoff Cook & Swanson PLC, Waterloo, IA, Christopher Daniel Higashi, Pro Hac Vice, John Kass Rubiner, Pro Hac Vice, Freeman Mathis & Gary, LLP, Jonathan Alan Stein, Pro Hac Vice, The Law Offices of Jonathan Stein, Los Angeles, CA, for Defendant/Counterclaimant/Third-Party Claimant Jonathan Alan Stein. Jonathan Alan Stein, Santa Barbara, CA, pro se.
Benjamin Granfield Arato, Steven P. Wandro, Alison Florence Kanne, Wandro & Associates, P.C., Des Moines, IA, for Plaintiffs/Counterclaim Defendants G2 Database Marketing, Inc., Glenn Golden.
David J. Dutton, Joshua M. Moon, Dutton Daniels Hines Kalkhoff Cook & Swanson PLC, Waterloo, IA, Christopher Daniel Higashi, Pro Hac Vice, John Kass Rubiner, Pro Hac Vice, Freeman Mathis & Gary, LLP, Jonathan Alan Stein, Pro Hac Vice, The Law Offices of Jonathan Stein, Los Angeles, CA, for Defendant/Counterclaimant/Third-Party Claimant Jonathan Alan Stein.
Jonathan Alan Stein, Santa Barbara, CA, pro se.
OPINION AND ORDER REGARDING THIRD-PARTY DEFENDANT WHITE ZUCKERMAN'S MOTION TO DISMISS
JOHN A. JARVEY, Chief Judge This case began as a professional malpractice action by the plaintiffs against their former lead counsel in an underlying copyright infringement action. The former lead counsel added counterclaims against the plaintiff and third-party claims against his former co-counsel and an expert witness firm he hired to provide opinions on the plaintiffs' damages in the underlying action. This case is now before the court on the expert witness firm's February 20, 2019, Motion To Dismiss Defendant And Third-Party Complainant Stein's Third-Party Complaint For Lack Of Personal Jurisdiction [Dkt. No. 15]. The former lead counsel filed his Response To Motion To Dismiss By Third Party Defendant White Zuckerman [Dkt. No. 23] on March 21, 2019. The expert witness firm filed its Reply To Stein's Resistance To Motion To Dismiss Third-Party Complaint For Lack of Personal Jurisdiction [Dkt. No. 52] on April 18, 2019. For the reasons stated below, the expert witness firm's Motion To Dismiss is DENIED.
Other motions are also pending in this case. Those motions will be addressed in separate orders.
I. INTRODUCTION
A. Procedural Background
As the synopsis, above, indicates, the procedural background to the motion now before the court is rather convoluted. This action, which the court will call the Malpractice Action, was filed on September 27, 2018, by plaintiffs Glenn Golden and G2 Database Marketing, Inc., a Louisiana resident and a Louisiana corporation, respectively, against defendant Jonathan Stein, an attorney licensed to practice law in California and New York. Unless the circumstances require otherwise, the court will call the plaintiffs in this Malpractice Action collectively Golden. The Malpractice Action arises from Stein's representation of Golden in a copyright infringement action, which the court will call the Underlying Action. The Underlying Action was originally filed in Louisiana, but was eventually transferred to this court, where it became Case No. 4:16-cv-00529.
As pertinent to the motion presently before the court, in this Malpractice Action, Golden alleges that Stein's professional negligence involved, among other things, his conduct toward third-party defendant White Zuckerman Warsavsky Luna & Hunt, L.L.P., (White Zuckerman), a California accounting and litigation services firm, and one of its principals, Barbara Luna, after Stein hired White Zuckerman to provide expert witness opinions on Golden's damages in the Underlying Action. The following are Golden's pertinent allegations:
61. [After firing another expert,] Defendant Stein then retained, on plaintiffs' behalf, an expert named Barbara Luna.
62. Defendant Stein claimed he had a professional relationship with Ms. Luna going back 30 years.
63. Plaintiff paid Ms. Luna $30,000.00, and was billed an additional $57,756.25.
64. The additional $57,756.25 bill was due to defendant Steins' insistence that Ms. Luna redo her expert report.
65. Defendant Stein professionally insulted Ms. Luna, causing her to refuse to testify in the case and ultimately sue him for failing to pay her bill.
66. As a result of Defendant Stein's actions and the timing of such actions, plaintiffs were left without an expert witness who would be able to testify on their behalf with respect to plaintiffs['] damages in [the Underlying Action].
67. Counsel for [the defendants in the Underlying Action] discovered that Ms. Luna was suing defendant Stein and would not be testifying on [Golden's] behalf.
Complaint [Dkt. No. 1], ¶¶ 61-67. In Golden's specifications of professional negligence, Golden alleges that Stein was negligent, in pertinent part, "[i]n failing to act in the best interests of the plaintiff, to wit: by attacking and insulting retained experts, causing said experts to withdraw from the case and jeopardizing plaintiffs' pending legal action and incurring additional and unnecessary fees and expenses." Complaint, Cause of Action – Professional Negligence, ¶ 83(b).
Stein filed his original Answer [Dkt. No. 4] in the Malpractice Action on November 24, 2018, denying Golden's professional negligence claim. On December 8, 2018, Stein filed his Third-Party Complaint [Dkt. No. 5] against third-party defendants White Zuckerman and former co-counsel, Aaron & Gianna. As pertinent here, Stein alleges that Golden is suing him for professional negligence, in part, based on "his oversight of the Damage Expert Report by Third Party Defendant White Zuckerman, which purportedly was not favorable enough." Third-Party Complaint, ¶ 4 (emphasis in the original). Stein also alleges that Golden is suing him for purported wrongful conduct that includes the conduct of White Zuckerman, which has caused him damages for which White Zuckerman should be held responsible. Id. at ¶¶ 15-17. Although White Zuckerman disputes Stein's characterization of Golden's claims against him as those claims relate to White Zuckerman, the court need not address that issue to resolve the present Motion To Dismiss.
Stein asserts seven third-party claims against White Zuckerman. Stein's first three third-party claims assert that White Zuckerman is responsible for damages and other expenditures that Stein may have to pay in this Malpractice Action. Those third-party claims are Stein's First Cause of Action for "Total Indemnity"; Stein's Second Cause of Action for "Equitable Indemnity And Apportionment"; and Stein's Third Cause of Action for "Contribution." Stein also asserts a Fourth Cause of Action for "Declaratory Judgment," seeking declarations relating to his first three causes of action. Stein asserts a Fifth Cause of Action for "Intentional Interference With Contractual Advantage," alleging intentional interference by White Zuckerman with Stein's fee contract with Golden; a Sixth Cause of Action for "Negligent Interference With Contractual Advantage," alleging White Zuckerman's negligent interference with Stein's fee contract with Golden; and a Seventh Cause of Action for "Negligence," alleging breach by White Zuckerman of a duty of care to Stein as to his fee contract with Golden. On December 14, 2018, Stein also filed a First Amended Answer And Counterclaim [Dkt. No. 10] asserting several counterclaims against Golden. White Zuckerman has not filed an Answer to Stein's Third-Party Complaint against it. Instead, on February 20, 2019, White Zuckerman filed the Motion To Dismiss now before the court. In essence, White Zuckerman argues that it is not subject to the personal jurisdiction of this court because it has insufficient minimum contacts with the State of Iowa for this court to exercise personal jurisdiction over it consistent with the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In his response, besides numerous extraneous contentions, Stein acknowledges that this court does not have "general" personal jurisdiction over White Zuckerman, but he contends that the court does have "specific" personal jurisdiction, because White Zuckerman purposely availed itself of the privilege of conducting business in the Southern District of Iowa in order to earn substantial expert fees. He relies on his contract for White Zuckerman's expert services, three file-stamped documents in the Underlying Action, and his assertion that White Zuckerman is being sued in connection with its work as a designated expert in the Underlying Action. In reply, White Zuckerman argues that its sole contact with this forum is its agreement to be an expert witness in the Underlying Action, which is insufficient to establish this court's specific personal jurisdiction over it.
Stein asserts the same seven third-party claims plus one additional claim against Aaron & Gianna.
In addition to the Underlying Action and this Malpractice Action, there are three related cases pending in other courts. One of those actions is a Bankruptcy Action filed in Florida on September 2017, by two of the defendants in the Underlying Action. The second, filed in Los Angeles Superior Court in May 2018, is White Zuckerman's Expert's Fee Action against Stein. Stein has filed cross-claims against White Zuckerman in the Expert's Fee Action that are identical to his third-party claims against White Zuckerman in this Malpractice Action. Stein contends that the Expert's Fee Action has been stayed twice, on January 8, 2019, and again on March 19, 2019, to allow this Malpractice Action to proceed, and White Zuckerman does not argue otherwise. The third action is Stein's Attorney's Fee Action against Golden in Los Angeles Superior Court for failure to pay attorney's fees and third-party costs, including expert fees, due in the Underlying Action.
B. Factual Background
The factual background, here, focuses on the relationship between Stein and White Zuckerman and White Zuckerman's contacts with this forum rather than on facts relating to the Underlying Action or the facts pertinent to Golden's claims against Stein in this Malpractice Action. In the first instance, the pertinent facts are drawn from Stein's Third-Party Complaint. Because the parties have submitted various affidavits and exhibits, however, this factual statement considers those submissions, as well.
In his Third-Party Complaint, Stein alleges the following as to this court's personal jurisdiction over White Zuckerman:
12. This Court has personal jurisdiction over [White Zuckerman]. The Expert Contract specifically envisioned preparation of the Damage Expert Report specifically for the Underlying Action. [White Zuckerman] knew and approved of its appointment as FRCP Rule 26 damage expert in the Underlying Action. And the Damage Expert Report was filed in the Underlying Action and served on all of its parties. The Complaint in this action claims that [Stein] committed professional negligence, in part because of [sic] the Damage Expert Report was purportedly not favorable enough.
Third-Party Complaint, ¶ 12 (emphasis in the original). In contrast, in its Motion To Dismiss and the supporting affidavit by Dr. Luna, White Zuckerman disputes that there is any basis for personal jurisdiction over it in this court. White Zuckerman, through Dr. Luna, avers that it does not market its services in Iowa or solicit business in Iowa; it does not have any offices, employ any employees, maintain any bank accounts, or own any property in Iowa; and it has never contracted to perform services for any Iowa citizen or company. White Zuckerman states that its sole connection with Iowa is that Dr. Luna, as a Senior Partner at White Zuckerman, prepared an expert report on behalf of Golden in the Underlying Action.
White Zuckerman alleges that Dr. Luna was hired in prior California cases by Stein, a California attorney, and that Stein contacted her in June 2017 to prepare an expert report, although Dr. Luna contends that Stein did not mention where the lawsuit was venued. Dr. Luna also avers that Stein represented to her that there was a 95-99 percent chance that the case would settle. Dr. Luna avers that, based on Stein's representations, she did not anticipate testifying by deposition or at trial in the case and understood that it was extremely unlikely that she would ever be asked to travel anywhere for purposes of the Underlying Action. On June 20, 2017, Dr. Luna sent an Accounting Services Retainer Agreement to Stein at his California address. The "place of performance" identified in that Agreement was White Zuckerman's principal place of business in Sherman Oaks, California. Stein signed the Agreement on June 22, 2017.
Stein points out that, at the time White Zuckerman was hired, the Underlying Action had already been pending in this district for approximately eight months. He also points out that, in addition to the fixed fee of $30,000, the Accounting Services Retainer Agreement sets out additional fees for depositions and trial testimony, as well as "portal-to-portal" travel charges, among other matters. Stein argues that these provisions show that White Zuckerman understood that performance in Iowa was anticipated.
Dr. Luna prepared a preliminary draft expert report and a final expert report in the Underlying Action, the latter dated February 15, 2018. White Zuckerman was designated as Golden's damages expert in the Underlying Action on March 1, 2018, and Dr. Luna's expert report was filed the same day. Dr. Luna never testified at a deposition or trial in the Underlying Action. Furthermore, Dr. Luna avers that all her communications with Stein occurred in California and all her communications with Golden were directed to Golden in Louisiana.
II. LEGAL ANALYSIS
A. Standards For Motions To Dismiss For Lack Of Personal Jurisdiction
Rule 12(b)(2) of the Federal Rules of Civil Procedure provides for a pre-answer motion to dismiss for "lack of personal jurisdiction." FED. R. CIV. P. 12(b)(2). As the Eighth Circuit Court of Appeals has explained, when personal jurisdiction is challenged, " ‘the plaintiff bears the burden to show that jurisdiction exists,’ " and "[w]here, as here, ‘no hearing is held on the motion,’ this court views the evidence most favorably to the plaintiff, resolving factual conflicts in the plaintiff's favor." Aly v. Hanzada for Imp. & Exp. Co., Ltd. , 864 F.3d 844, 848 (8th Cir.) ( Fastpath, Inc. v. Arbela Techs. Corp. , 760 F.3d 816, 819 (8th Cir. 2014) ), cert. denied sub nom. Hanzada for Imp. & Exp. Co. v. Aly , ––– U.S. ––––, 138 S. Ct. 203, 199 L.Ed.2d 115 (2017). More specifically,
To survive a motion to dismiss for lack of personal jurisdiction, a plaintiff must plead "sufficient facts to support a reasonable inference that the defendant[ ] can be subjected to jurisdiction within the state." K–V Pharm. Co. v. J. Uriach & CIA, S.A. , 648 F.3d 588, 591–92 (8th Cir. 2011) (alteration in original) (internal
quotation marks omitted). But where ... the parties submit affidavits to bolster their positions on the motion, and the district court relies on the evidence, the motion is in substance one for summary judgment. Radaszewski ex rel. Radaszewski v. Telecom Corp. , 981 F.2d 305, 309–10 (8th Cir. 1992) ; cf. Blair v. Wills , 420 F.3d 823, 826–27 (8th Cir. 2005). The plaintiff bears the burden of proof on the issue of personal jurisdiction, and must establish jurisdiction by a preponderance of the evidence at trial or when the court holds an evidentiary hearing. Dakota Indus., Inc. v. Dakota Sportswear, Inc. , 946 F.2d 1384, 1387 (8th Cir. 1991). At the motion stage, the action should not be dismissed for lack of jurisdiction if the evidence, viewed in the light most favorable to [the claimant], is sufficient to support a conclusion that the exercise of personal jurisdiction over [the defendant] is proper. See Radaszewski ex rel. Radaszewski , 981 F.2d at 309–10 ; Fed.R.Civ.P. 56(a).
Creative Calling Solutions, Inc. v. LF Beauty, Ltd. , 799 F.3d 975, 979 (8th Cir. 2015). To put it another way, "To survive a motion to dismiss, a plaintiff need make only a prima facie case that personal jurisdiction exists," Downing v. Goldman Phipps, PLLC , 764 F.3d 906, 911 (8th Cir. 2014) ; Fastpath , 760 F.3d at 820, although that prima facie case " ‘must be tested, not by the pleadings alone, but by affidavits and exhibits supporting or opposing the motion.’ " Fastpath , 760 F.3d at 820 (quoting K–V Pharm. Co. v. J. Uriach & CIA, S.A , 648 F.3d 588, 592 (8th Cir. 2011) ). Here, the parties have submitted affidavits and exhibits supporting and opposing White Zuckerman's motion to dismiss for lack of personal jurisdiction, but the court has not held a hearing on personal jurisdiction over White Zuckerman.
B. Discussion
1. Personal jurisdiction over expert witnesses
Stein, the party with the burden of proof on personal jurisdiction over White Zuckerman, see Aly , 864 F.3d at 848, asserts that there are no Eighth Circuit cases addressing the precise question, here, concerning personal jurisdiction over an expert witness for alleged wrongdoing in the course of its performance of its expert witness duties. Consequently, he focuses on two out-of-circuit cases involving the question of personal jurisdiction over an expert witness. The first of these cases is Manez v. Bridgestone Firestone N. Am. Tire, LLC , 533 F.3d 578 (7th Cir. 2008), and the second is Guardi v. Desai , 151 F. Supp. 2d 555 (E.D. Penn. 2011).
a. Manez v. Bridgestone Firestone
In Manez , the Seventh Circuit Court of Appeals considered whether an Indiana federal district court had personal jurisdiction to impose sanctions on a Mexican lawyer who had been hired by the plaintiffs' U.S. lawyers "for the express purpose of filing a deficient complaint in an improper Mexican court," so the Mexican court would dismiss, and the "plaintiffs could present ‘proof’ to [the Seventh Circuit Court of Appeals] that Mexico was not an available alternative forum." Manez , 533 F.3d at 584. The Mexican attorney had filed an expert declaration in support of the plaintiffs' claims in the United States courts. Id. The court observed that the Mexican attorney/expert "was not a defendant, ‘haled’ into the U.S. federal district court against his will," but someone "hired in part as an expert witness and in part as co-counsel for the Mexican proceedings," who "voluntarily submitted opinions to his U.S. counterparts, knowing that they would in turn submit them to the district court and [the appellate] court in connection with the Ford/Firestone cases." Id. at 586. One of the critical questions, the court found, was whether it was "permissible to conclude that [the Mexican attorney/expert] submitted himself to the personal jurisdiction of the court for purposes of anything arising out of" filings making representations, either directly or indirectly, to the district court and the appellate court. Id. The court found that "there [wa]s no doubt that [the Mexican attorney/expert] allowed at least one document to be filed directly with a U.S. court," an affidavit discussing the Mexican proceedings, and "no doubt" that the Mexican attorney/expert intended that affidavit would be filed with the court. Id. at 587.
The court in Manez considered whether it had personal jurisdiction over the Mexican attorney/expert:
Here, it would be hard to imagine a closer link between the activities within a forum and the conduct for which a person is being asked to answer. The fact that the affidavit mentioned Illinois law, and the proceedings in the district court were occurring in Indiana, does not mean anything. The affidavit was filed in support of an appeal that sought to restore the case to the docket of the district court for the Southern District of Indiana. Looking strictly at adjudicatory competence, we conclude that the district court was entitled to exercise jurisdiction over [the Mexican attorney/expert] in this manner.
Manez , 533 F.3d at 587 (emphasis added). The court chose not to consider an alternative argument that the Mexican attorney/expert also consented to the court's jurisdiction by furnishing his affidavit to be filed in the court, because the court "proceed[ed] on the basis only of specific adjudicatory jurisdiction, which supports the district court's power to resolve issues arising out of [the Mexican attorney/expert's] actions directed to the Indiana litigation." Id. at 587-88.
Stein argues that Manez involved the court finding personal jurisdiction over a Mexican expert witness based on a single filing with the federal court. Stein argues that the court found it had personal jurisdiction even though the expert had no connection with the federal court other than his work as an expert and even though the work was conducted at a distance. Thus, Stein contends that three filings on White Zuckerman's behalf in this Malpractice Action are enough to establish personal jurisdiction over White Zuckerman, where White Zuckerman voluntarily submitted the expert report knowing it would be used in the Underlying Action in this court. White Zuckerman counters that Manez is distinguishable, because the expert witness in that case was not a defendant challenging personal jurisdiction after being sued, but an expert challenging personal jurisdiction of the court to sanction him for misconduct in the case. White Zuckerman argues that the nature of the person's relation to the court matters. Thus, White Zuckerman argues that, unlike the expert in Manez , it is being haled into this separate lawsuit against its will by an existing party.
The filed documents on which Stein relies are an October 21, 2016, text order indicating that, although the Underlying Action began in Louisiana, it had been transferred to the Southern District of Iowa in October 2016, before White Zuckerman was hired as an expert; Golden's March 1, 2018, designation of experts identifying Dr. Luna and White Zuckerman and indicating that they had been retained to testify on the amount of damages, attorney's fees, and costs incurred by Golden; and Dr. Luna's expert report, filed March 1, 2018.
The court finds that Stein has oversimplified the basis for the Manez decision. The court in Manez did not find the filing of a single document from the expert was enough to establish personal jurisdiction. Rather, the court pointed out that the specific document filed with the court, the attorney/expert's affidavit, was part of the wrongful conduct of the expert aimed at the court, so that there was a close link between the activities within the forum and the conduct for which the expert was being asked to answer. 533 F.3d at 587. The focus of the Seventh Circuit Court of Appeals in Manez was on "adjudicatory competence" and "specific adjudicatory jurisdiction," in a case considering personal jurisdiction of a court to impose sanctions on an attorney/expert for misconduct (fraud) directed at the court as well as directed to the litigation, id. at 587-88, not whether there was personal jurisdiction over an expert in a subsequent lawsuit for the expert to answer for alleged conduct toward a party in a prior lawsuit in which the expert had been designated.
Thus, it seems to this court that the decision in Manez has little to say about whether an expert witness is subject to personal jurisdiction in a case in which the attorney who hired the expert is being sued by a disgruntled client and the attorney asserts a third-party claim against the expert alleging that the expert, rather than the attorney, is responsible for the disgruntled client's injuries. To put it another way, White Zuckerman is being "haled" into court against its will in this Malpractice Action to face claims of alleged misconduct toward parties to this Malpractice Action that allegedly occurred in the Underlying Action , but not for any misconduct directed at the court in this Malpractice Action. Compare id. at 586 (the expert "was not a defendant, ‘haled’ into the U.S. federal district court against his will," but a person being sanctioned by the court for misconduct directed at the court in the course of his involvement with the case).
The Manez decision does not help Stein carry his burden to show personal jurisdiction over White Zuckerman.
b. Guardi v. Desai
The court turns to Guardi v. Desai , 151 F. Supp. 2d 555 (E.D. Penn. 2011), to see if it is more instructive in the circumstances presented, here. The Guardi case was more like this case than Manez in terms of the procedural footing. In Guardi , a Pennsylvania plaintiff brought suit in Pennsylvania federal court against a Colorado doctor who had been a medical expert for the plaintiff in her Pennsylvania medical negligence action, alleging that the Colorado expert had lost the plaintiff's original mammogram films and, without those films, the plaintiff would be unable to prosecute her Pennsylvania medical negligence lawsuit. 151 F. Supp. 2d at 557.
In Guardi , the court concluded that the Colorado expert had sufficient minimum contacts with Pennsylvania for the court to exercise personal jurisdiction, because the contacts, "while few in number, still created a substantial connection with Pennsylvania." Id. at 560. Specifically,
Even though the [plaintiffs] initiated the first contact with [the Colorado expert], [the Colorado expert], (1) by reviewing the films and writing a report for the [plaintiffs] in their potential medical malpractice action; (2) by requesting future opportunities from Plaintiffs' counsel to write expert reports; and (3) by agreeing to retain the mammogram films to write an addendum for the [plaintiffs], "reach[ed] out beyond one state and creat[ed] continuing relationships and obligations with citizens of another state." [Mellon Bank (East) PSFS, Nat'l Ass'n v.] Farino , 960 F.2d [1217,] 1222 [(3d Cir. 1992)] (quoting Burger King [Corp. v. Rudzewicz] , 471 U.S. [462,] 473–74, 105 S.Ct. 2174 [85 L.Ed.2d 528 (1985)] ).
Guardi , 151 F. Supp. 2d at 560. The court also found that the Colorado expert should reasonably have anticipated being haled into court in Pennsylvania, because she "purposely availed herself" of the privilege of doing business there. Id. This was so, the court found, because the Colorado expert participated in an on-going business relationship with and a continuing obligation to the Pennsylvania plaintiffs to provide a report and to serve as an expert in a Pennsylvania case; she deliberately engaged in a course of conduct designed to cultivate the on-going relationship by requesting that plaintiff's counsel consider her for more expert work; she retained the mammogram films in case she needed to do an addendum to her report; and she should have expected that her activities involving the mammogram films could cause her to be haled into court in Pennsylvania, because harm in Pennsylvania would occur if anything were to happen to the original mammogram films. Id. at 560-61. The expert did not contend that, despite her minimum contacts, the exercise of personal jurisdiction was unreasonable. Id. at 561-62. Therefore, the court denied the expert's motion to dismiss for lack of personal jurisdiction. Id. at 562.
Stein argues that, in Guardi , the Colorado expert had no connection with the Pennsylvania court other than her work as an expert, but the court found personal jurisdiction over the expert based on the expert's participation in the case as a paid expert. Stein also argues that the court in Guardi found that, because the expert agreed to be an expert in a Pennsylvania case, the expert should have reasonably anticipated being haled into court in Pennsylvania. Likewise, Stein argues that White Zuckerman should have anticipated being haled into court on the basis of its participation as a paid expert in a case in this court. White Zuckerman argues that, unlike the expert in Guardi , it never solicited business in Iowa nor engaged in any course of conduct to cultivate business in Iowa, not least because neither Stein nor Golden was an Iowa resident, so White Zuckerman had no obligation to any Iowa resident.
The court concludes that Stein's reading of Guardi , like his reading of Manez , is oversimplified. The court in Guardi did not find that personal jurisdiction turned solely on the expert's participation as an expert in the underlying medical negligence case, even for a fee. Rather, as White Zuckerman argues, the court found personal jurisdiction on the ground that the expert deliberately engaged in a course of conduct designed to cultivate an on-going relationship with counsel in the case to perform additional expert witness work, and because she agreed to retain the mammogram films, which should have led her to expect that her activities involving the mammogram films could cause her to be haled into court in Pennsylvania. Guardi , 151 F. Supp. 2d at 560-61. Here, however, there is no evidence that White Zuckerman engaged in any course of conduct to cultivate an on-going relationship with an attorney in the forum, for example, by asking for the opportunity to perform additional expert witness work, and White Zuckerman did not take custody of any key piece of evidence in the Underlying Action, thereby taking on an obligation beyond that ordinarily undertaken by an expert and one that could cause harm in the forum state if the obligation was not met. Because some of the expert's key contacts with the forum found by the court in Guardi are not present in this case, Guardi does not suggest that an expert may be subject to personal jurisdiction in any court in which the expert has agreed to provide expert services.
c. Other decisions
There are a few other cases, not addressed by the parties, concerning personal jurisdiction over an expert witness in a subsequent action. In Echevarria v. Beck , 338 F. Supp. 2d 258 (D.P.R. 2004), a surgeon was hired to provide expert services in a medical malpractice case in superior court in Puerto Rico, was paid a fee, and provided an expert witness report. 338 F. Supp. 2d at 260. The surgeon requested a cancellation of his deposition with 12 days' notice, however, and attempts to reschedule the deposition were "unsuccessful." Id. After the surgeon received notice from the plaintiffs that trial had been set for a date a little less than three months away, the surgeon "informed plaintiffs that he was ‘not available to provide any deposition outside the United States.’ " Id. (quoting the surgeon's response). The plaintiffs were unable to secure a replacement expert so late in the process, so they were forced to voluntarily dismiss their malpractice claim. Id. The plaintiffs brought a subsequent suit against the expert for breach of contract. Id. at 259.
The court in Echevarria considered whether the plaintiffs had shown specific personal jurisdiction was appropriate under a three-prong test drawn from Supreme Court precedent. Id. at 261. First, the court held that the expert had sufficient contacts with the forum and the cause of action arose from those contacts, because he had been appointed as an expert in the case, had sent a report to Puerto Rico, and had direct contact by mail with the plaintiffs and their attorney in Puerto Rico. Id. at 261. Second, the court found that asking whether the expert purposely availed himself of the privilege of conducting activities in Puerto Rico "did not compel an unequivocal result." This was so, the court explained, because the expert did not actively initiate contacts with the island, but he did know that his expert opinion was to be utilized in Puerto Rico and that the contract had a substantial connection to Puerto Rico. Id. at 262. The court found that the third prong of the analysis, which considered what the court called five "gestalt factors," tipped the constitutional balance in favor of finding specific personal jurisdiction over the expert. Specifically, (1) there was no showing by the expert that there were special circumstances that would demonstrate a constitutionally significant burden on him to appear in Puerto Rico; (2) Puerto Rico had an interest in exercising its jurisdiction over the expert, because the breach of contract alleged had a negative impact on plaintiffs residing in Puerto Rico; (3) the plaintiffs had an interest in obtaining relief in a forum convenient for them; (4) litigation in a single forum—and one in which another defendant (a firm that provided the expert) had not contested personal jurisdiction—was the most efficient way to resolve the matter; and (5) the forum had an interest in providing a convenient forum to redress injuries caused by foreign actors. Id. at 262-63. Consequently, the court concluded that the plaintiffs had met their prima facie burden to establish personal jurisdiction over the expert. Id. at 263.
Echevarria would support Stein's contentions to the extent that the court found that the expert had sufficient contacts with the forum, at least in part , because he was appointed in a case in that forum and sent a report there. Id. at 261. Echevarria is distinguishable, however, to the extent that the expert's contacts with the forum were with residents of that forum, which the court admittedly found "did not compel an unequivocal result." Id. at 262. That case is also distinguishable, because the court also considered the expert's contacts with island residents in the "gestalt factors," in such things as the negative impact of the expert's misconduct on plaintiffs residing in the forum, the plaintiffs' interest in a convenient forum, and the forum's interest in providing a convenient forum to redress injuries caused by foreign actors, and these factors ultimately tipped the balance in favor of personal jurisdiction. Id. at 262-63. Here, where Golden and Stein are not residents of this forum, these considerations have less weight.
For the sake of completeness, two other cases involving personal jurisdiction over expert witnesses should be mentioned, although neither is particularly instructive. In Urgent v. Tech. Assistance Bureau, Inc. , 255 F. Supp. 2d 532 (D.V.I. 2003), a firm sent solicitations nationwide, including the Virgin Islands, offering expert services, the former president of the firm traveled to the Virgin Islands to talk with an attorney there, the firm entered into an agreement with the attorney to provide expert witnesses, the firm provided several experts to the attorney and other attorneys in the Virgin Islands, but then allegedly breached the agreement with the attorney by failing to provide one expert as requested. 255 F. Supp. 2d at 536. The court found that it was not enough that the non-resident firm had contracted with a resident of the forum, but the court did find sufficient contacts were provided by the terms of the contract, the place and character of the negotiations, and the contemplated future consequences of the contract. Id. at 537. The court found that the exercise of personal jurisdiction was proper, where the expert witness firm had created continuing obligations between itself and Virgin Island residents. Id. Again, Stein has not offered any evidence of solicitation in Iowa by White Zuckerman or any continuing obligations of White Zuckerman to residents of Iowa.
In Southridge Capital Mgmt., LLC v. Lowry , 188 F. Supp. 2d 388 (S.D.N.Y. 2002), the court found that an out-of-state expert's breach of a confidentiality agreement signed with a New York attorney as part of an agreement to act as an expert in a case in New York, assisting in that case, and testifying in New York on behalf of the New York attorney's client were sufficient contacts to confer personal jurisdiction on the New York court, where the breach of the confidentiality agreement involved the expert's disclosure of information obtained in the New York case to an unrelated entity. 188 F. Supp. 2d at 397-98. Lowry is distinguishable from the present case, because the expert's contract was with a forum resident on behalf of a forum resident and the expert did actually testify in a court in the forum, but White Zuckerman's contract to assist in the Iowa case was with a California attorney on behalf of Louisiana plaintiffs, and White Zuckerman did not testify in Iowa in the Iowa case.
This is so, notwithstanding Stein's contention that White Zuckerman anticipated providing expert testimony at trial in Iowa and White Zuckerman's contention that it understood that it was highly unlikely that Dr. Luna would ever be deposed or testify in Iowa.
Thus, none of the handful of cases involving the precise question of personal jurisdiction over an expert witness is instructive, here.
2. Personal jurisdiction due process requirements
Where there is no otherwise persuasive authority squarely on point on the issue, the court must consider and apply controlling Supreme Court and Eighth Circuit Court of Appeals standards, even if those courts have not applied those standards in precisely the circumstances presented here. In a diversity action, such as this Malpractice Action, a federal court may assume personal jurisdiction over a defendant (or, here, a third-party defendant) only if the forum state's long-arm statute permits the exercise of personal jurisdiction and that exercise is consistent with the Due Process Clause of the Fourteenth Amendment. Aly v. Hanzada for Imp. & Exp. Co., Ltd. , 864 F.3d 844, 848 (8th Cir.) (citing Eagle Tech. v. Expander Americas, Inc. , 783 F.3d 1131, 1136 (8th Cir. 2015) ), cert. denied sub nom. Hanzada for Imp. & Exp. Co. v. Aly , ––– U.S. ––––, 138 S. Ct. 203, 199 L.Ed.2d 115 (2017) ; Creative Calling Solutions, Inc. v. LF Beauty, Ltd. , 799 F.3d 975, 979 (8th Cir. 2015). "Iowa's long-arm statute is co-extensive with the widest due process parameters permitted by the Constitution[, so] [t]he district court may thus assert personal jurisdiction over [a defendant] if the exercise of jurisdiction comports with due process." Creative Calling Solutions , 799 F.3d at 979 (internal quotation marks and citations omitted).
As the Eighth Circuit Court of Appeals has explained,
Determining "whether asserting personal jurisdiction over a party comports with due process," this court considers five factors: "(1) the nature and quality of the contacts with the forum state; (2) the quantity of those contacts; (3) the relationship of those contacts with the cause of action; (4) [the state's] interest in providing a forum for its residents; and (5) the convenience or inconvenience to the parties." Eagle Tech. , 783 F.3d at 1136.
Aly , 864 F.3d at 849. Personal jurisdiction may be "general" or "specific." Creative Calling Solutions , 799 F.3d at 979. In the five-factor test quoted above, "[t]he third factor applies only on the question of whether specific jurisdiction exists, and the last two factors ‘carry less weight and are not dispositive.’ " Downing v. Goldman Phipps, PLLC , 764 F.3d 906, 912 (8th Cir. 2014) (internal citation omitted) (quoting Johnson v. Woodcock , 444 F.3d 953, 956 (8th Cir. 2006) ); accord Aly , 864 F.3d at 849 ("This court gives ‘significant weight to the first three factors.’ ") (quoting Fastpath, Inc. v. Arbela Techs. Corp. , 760 F.3d 816, 821 (8th Cir. 2014) ). Here, the parties agree that only "specific" personal jurisdiction is at issue for Stein's third-party complaint against White Zuckerman. Thus, the court's analysis will focus on the first three factors of the test.
In the due process analysis, " ‘[s]pecific jurisdiction’ ... is proper when a defendant has certain contacts with the forum State and the cause of action arises out of those contacts." Creative Calling Solutions , 799 F.3d at 979-80. Those "certain contacts" must be based on " ‘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. at 980 (quoting Burger King Corp. v. Rudzewicz , 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) ). "The defendant's contacts with the forum must be more than ‘random, fortuitous, or attenuated,’ and must permit the defendant to ‘reasonably anticipate being haled into court there.’ " Id. (again quoting Burger King , 471 U.S. at 475, 105 S.Ct. 2174 ). As the Supreme Court made clear, "purposeful availment" cannot be based on "the ‘unilateral activity of another party or a third person.’ " Burger King , 471 U.S. at 475, 105 S.Ct. 2174 (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall , 466 U.S. 408, 417, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) ). As to the required relationship between the contacts and the cause of action, "there must be ‘an affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation.’ " Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty. , ––– U.S. ––––, 137 S. Ct. 1773, 1780, 198 L.Ed.2d 395 (2017) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown , 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011) ). "For this reason, ‘specific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction.’ " Id. (quoting Goodyear , 564 U.S. at 919, 131 S.Ct. 2846 ). 3. Application of the standards
a. Nature, quality, and quantity of contacts
In the assessment of whether asserting personal jurisdiction over White Zuckerman comports with due process, the first two factors are the nature and quality of White Zuckerman's contacts with this forum and the quantity of those contacts. Aly , 864 F.3d at 849. The contacts at issue, here, are certainly few in number. Stein does not dispute White Zuckerman's contention that it does not market its services in Iowa or solicit business in Iowa; it does not have any offices, employ any employees, maintain any bank accounts, or own any property in Iowa; and it has never contracted to perform services for any Iowa citizen or company. Indeed, Stein relies entirely on White Zuckerman's entry into a contract to provide expert witness services in litigation in Iowa as establishing the requisite contacts. As to the nature of the contacts, " ‘physical entry into the State—either by the defendant in person or through an agent, goods, mail, or some other means—is certainly a relevant contact.’ " Aly , 864 F.3d at 849 (quoting Walden v. Fiore , 571 U.S. 277, 285, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014) ). Here, the entry of White Zuckerman into the state did not involve an agent physically entering the state, where Dr. Luna did not testify at deposition or trial in this state, but it did involve agreement to provide expert services for legal proceedings in this forum, so "it is the defendant's conduct that ... form[s] the ... connection with the forum State." Walden , 571 U.S. at 285, 134 S.Ct. 1115 (citing Burger King , 471 U.S. at 476, 105 S.Ct. 2174 ). The contract to provide services in the state is clearly not as substantial a contact as a contract to establish a business with a corporation in the state, cf. Aly , 864 F.3d at 849, but it is not a trivial contact.
Also, although Stein's claims against White Zuckerman are not contractual in nature, he does assert that White Zuckerman's contacts with this forum arise from a contract, so that the court finds that it is appropriate to "evaluate ‘prior negotiations and contemplated future consequences, along with the terms of the contract and the parties' actual course of dealing.’ " Cf. Creative Calling Solutions , 799 F.3d at 980 (quoting Burger King , 471 U.S. at 479, 105 S.Ct. 2174 ). White Zuckerman contends that the negotiations, such as they were, indicated that there was a 95-99 percent chance that the case would settle and that Dr. Luna understood, based on Stein's representations, that she did not need to anticipate testifying by deposition or at trial in the case and that it was extremely unlikely that she would ever be asked to travel anywhere, let alone Iowa, for purposes of the Underlying Action. Nevertheless, viewing the evidence most favorably to Stein and resolving factual conflicts in Stein's favor, as the court must where affidavits and exhibits have been presented, but no evidentiary hearing has been held, see Aly , 864 F.3d at 848 ; Creative Calling Solutions , 799 F.3d at 979, the terms of the Accounting Services Retainer Agreement, drafted by White Zuckerman and signed by Stein, demonstrate that White Zuckerman reasonably anticipated testifying in Iowa, because those terms set out additional fees for depositions and trial testimony, as well as "portal-to-portal" travel charges. Moreover, even in the absence of those terms, White Zuckerman understood that, by agreeing to provide expert witness services in litigation in Iowa, some of the future consequences of failing to provide those services would occur to some degree in Iowa, even if the party it was serving was a resident of Louisiana. See Creative Calling Solutions , 799 F.3d at 980 (considering contemplated future consequences of a contract). This is true, notwithstanding a term of the agreement indicating that the "place of performance" was White Zuckerman's principal place of business in Sherman Oaks, California. That contractual term cannot override the reality of where White Zuckerman might have been required to appear for deposition or trial or the consequences in this forum of failure to fulfil the terms of the agreement.
Thus, White Zuckerman had sufficient "minimum contacts" for the court to consider, further, whether due process requirements for personal jurisdiction over White Zuckerman are met.
b. Relationship of the contacts with the cause of action
The third factor in the due process analysis, and the one that applies when, as here, the question is whether the court has specific personal jurisdiction, is the relationship of White Zuckerman's contacts with the cause of action. See Aly , 864 F.3d at 849 (listing factors); Downing , 764 F.3d at 912 (explaining that the third factor applies only when the question is specific jurisdiction). White Zuckerman argues that Stein's suit does not arise out of or relate to White Zuckerman's contacts with this forum because Stein's Third-Party Complaint incorporates Golden's allegations, and Stein's characterization of Golden's claims as alleging that Stein "committed professional negligence, in part because [Dr. Luna's] Damage Expert Report was purportedly not favorable enough" is demonstrably not correct. Rather, White Zuckerman contends, the allegations in Golden's Complaint are directly solely at Stein's conduct and contain no allegations whatsoever about how favorable Dr. Luna's report was. Stein argues that the wrongful conduct by White Zuckerman that he alleges all relates to White Zuckerman's performance of its obligations in the Underlying Action or conduct of White Zuckerman as a designated expert that hurt either Golden's position in the Underlying Action or Stein's relationship with Golden. Thus, Stein argues that his claims arise out of White Zuckerman's contacts with the forum in the form of the expert witness agreement.
White Zuckerman is correct that Stein's characterization of Golden's claims against him relating to White Zuckerman cannot reasonably be construed to be that Stein was negligent because Dr. Luna's expert report was "not favorable enough." Not surprisingly, Stein cites nothing supporting these allegations in ¶¶ 4 and 12 of his Third-Party Complaint, because no such allegation can be found in Golden's Complaint in this Malpractice Action. Rather, the allegations relating to White Zuckerman in Golden's Complaint, quoted, supra , beginning on page 846–47, all address Stein's conduct toward White Zuckerman. That does not mean, however, as White Zuckerman seems to assert, that there is no relationship between White Zuckerman's contacts with this forum and the causes of action asserted by Stein against White Zuckerman. White Zuckerman's contacts with this forum involve White Zuckerman purposefully availing itself of the privilege of conducting expert witness activities in this forum to earn expert witness fees, thus invoking the benefits and protections of this forum's laws. See Creative Calling Solutions , 799 F.3d at 980 (quoting Burger King , 471 U.S. at 475, 105 S.Ct. 2174 ). Those contacts are not merely "random, fortuitous, or attenuated," id. (quoting Burger King , 471 U.S. at 475, 105 S.Ct. 2174 ), because they anticipated that White Zuckerman would have a relationship with the litigation in the forum for as long as that litigation lasted and that White Zuckerman could be called on to testify in deposition or trial in this forum. White Zuckerman was certainly aware of the possibility of testifying in this forum—however remote that possibility may have seemed in the Underlying Action, based on Dr. Luna's understanding of Stein's representations—because White Zuckerman anticipated the need to set out fees for testimony and travel in its expert witness agreement. Again, "there must be ‘an affiliation between the forum and the underlying controversy, principally, [an] activity or occurrence that takes place in the forum State and is therefore subject to the State's regulation.’ " Bristol-Myers Squibb , 137 S. Ct. at 1780 (quoting Goodyear , 564 U.S. at 919, 131 S.Ct. 2846 ). Here, viewing the evidence most favorably to Stein and resolving factual conflicts in Stein's favor, see Aly , 864 F.3d at 848, Stein has made the required prima facie showing that White Zuckerman's contacts with this forum, arising from its agreement to provide expert witness services to a party in the Underlying Action in this forum, are "related" to or "affiliated" with Stein's third-party claims against White Zuckerman in this Malpractice Action. Stein's claims that White Zuckerman is responsible for damages and other expenditures that Stein may have to pay to Golden in this Malpractice Action are the result of White Zuckerman's agreement to provide expert witness services in the Underlying Action in this forum, then refusing to testify, leaving Golden without an expert witness for trial in the Underlying Action, the very contacts with the forum that are the basis for personal jurisdiction. In other words, Stein's third-party claims against White Zuckerman involve " ‘adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction.’ " Id. (quoting Goodyear , 564 U.S. at 919, 131 S.Ct. 2846 ).
This is not the only example of Stein making untenable characterizations of the allegations, claims, or arguments of other parties in this litigation. One of the first sections of Stein's Brief [Dkt. No. 23] is captioned "Factual Falsehoods Clarified," and sets out six purported "falsehoods and ‘false lights’ " in White Zuckerman's Motion. See Stein's Brief, 2. Yet, it is doubtful that any reasonable reading of the six challenged statements and the record evidence could lead one to Stein's conclusion that the statements are false.
First, Stein asserts that Dr. Luna "appears to state" in ¶ 6 of her declaration, "that White Zuckerman produced its report in 30 days," but more than eight months elapsed from June 20, 2017, the date of the parties' agreement and March 1, 2018, when White Zuckerman was designated as Golden's expert. Stein's Brief at 2. Dr. Luna does aver, "In June 2017, Stein contacted me requesting that I very quickly prepare an expert report within less than 30 days." Luna Dec. [Dkt. No. 15-2], ¶ 6. The record reveals, however, that Dr. Luna's preliminary draft report was dated July 31, 2017, less than a month after the signing of the parties' contract and within 30 days of the date Dr. Luna avers that Stein contacted her. Luna Draft Report [Dkt. No. 15-4], 11. Stein has not disputed Dr. Luna's assertions of when she was contacted or when the first draft of her report was completed.
Second, Stein asserts that White Zuckerman's brief "implies that White Zuckerman was hired to produce an expert report for the Underlying Litigation , when it was venued in [the] Eastern District of Louisiana," but venue had been changed to the Southern District of Iowa eight months before White Zuckerman was hired in June 2017. See Stein's Brief at 2. The statements in White Zuckerman's brief to which Stein apparently refers are that "Stein did not mention to Dr. Luna where the lawsuit was venued" when he contacted her in June 2017, but "[i]n fact the lawsuit was originally filed in Louisiana." White Zuckerman's Brief [Dkt. No. 15-1], 2. White Zuckerman's statement that the lawsuit was originally filed in Louisiana is, in fact, true. Also, at the beginning of the same paragraph, White Zuckerman's Brief refers to the Underlying Action as a "lawsuit pending in the Southern District of Iowa," quoting the 2016 case number. White Zuckerman correctly states that the Underlying Action was "originally filed in Louisiana" and recognizes that it had been transferred to Iowa before Stein contacted Dr. Luna, and its statements about venue of the Underlying Action do not reasonably suggest that the Underlying Action was still venued in Louisiana when White Zuckerman became involved.
Third, Stein asserts that ¶ 7 of Dr. Luna's declaration "state[s] that deposition or trial testimony were never envisioned by White Zuckerman, and so travel to Iowa for depositions or trial was ‘extremely unlikely,’ " but Stein contends this statement is a "falsehood" or "false light," because the parties' contract "refers explicitly to additional fees for depositions and trial testimony, and ‘portal-to-portal’ travel." Stein's Brief at 2. In ¶ 7 of her declaration, however, what Dr. Luna actually states is, "Stein represented to me that there was a 95-99 percent chance the case would settle. Based on Stein's representations, I did not anticipate testifying at deposition or at trial in the case and understood it was extremely unlikely I would ever be asked to travel anywhere." Characterizing "not anticipat[ing]" deposition or trial testimony, based on Stein's representations, as "stat[ing] that deposition or trial testimony were never envisioned" is, at the very least, hyperbolic, if it can somehow be considered a reasonable characterization. More importantly, the fact that the proposed agreement by the expert witness specifically covered the possibility of deposition or trial testimony and travel does not reasonably demonstrate the falsity of the expert's understanding of whether or not deposition or trial testimony or travel were "anticipated," based on the hiring party's statements. Such terms are no doubt standard in an expert witness contract and are certainly prudent, whatever representations may have been made to the expert witness about the likelihood of deposition or trial testimony or travel in a particular case.
Fourth, Stein asserts that White Zuckerman's Brief and the draft reports attached to it "imply that White Zuckerman prepared only a draft expert report that was never filed in the Southern District of Iowa," but "its final damage expert report of 115 pages was filed with the Court and served on all parties" in the Underlying Action. Stein's Brief at 3. White Zuckerman's Brief explicitly refers to "a preliminary draft expert report and a supplemental expert report" and then to a "preliminary draft expert report and the subsequent expert report," identifying their dates as July 31, 2017, and February 15, 2018, respectively. White Zuckerman's Brief at 3. Exhibit C to White Zuckerman's Brief is marked as a "Preliminary Working Discussion Draft" of Dr. Luna's report, and Exhibit D is marked "EXPERT REPORT OF DR. BARBARA C. LUNA." Thus, White Zuckerman correctly advised the court that Dr. Luna prepared both a draft report and a final report. Although Exhibit D consists of only the 16 pages of Dr. Luna's actual report, rather than the full 115 pages, including supporting documentation, attached to Stein's Brief, the omission of the supporting material from White Zuckerman's Exhibit D does not give rise to any reasonable inference that Exhibit D was not the "final" expert report or that no expert report was ever filed. White Zuckerman neither states nor suggests in its brief that the final expert report was never filed or that it prepared only a draft report.
Fifth, Stein asserts that White Zuckerman's Brief at 3 and 8-9 mischaracterizes his Third-Party Complaint as a "contract case," where the place of performance might be significant, when it is really a case "seek[ing] to share any potential liability for malpractice in the Underlying Litigation, and seeks compensation for tortious interference and breach of duty by White Zuckerman." Stein's Brief at 3. The court has not found on pages 3 or 8-9 of White Zuckerman's Brief any characterization of Stein's Third-Party Complaint at all, let alone a characterization of his Third-Party Complaint as a "contract case." White Zuckerman's Brief at 3 does point out that "[t]he ‘place for performance’ specified in the Agreement is White Zuckerman's principal place of business in Sherman Oaks, California." Stein has not cited, and the court has not found, any Supreme Court or Eighth Circuit precedent suggesting that where the parties agreed performance of their contract would occur is irrelevant to whether one of the parties to the contract has sufficient minimum contacts with the forum in question. Indeed, the court pointed out, above, that it considers where the future consequences of failing to provide services under a contract would have an effect is relevant to the personal jurisdiction issue, notwithstanding that a term of the agreement, here, indicates that the "place of performance" was White Zuckerman's principal place of business in Sherman Oaks, California.
Sixth, Stein asserts that White Zuckerman's Brief omits that the Expert's Fee Action in Los Angeles Superior Court has been stayed twice. It is not clear how this omission reasonably becomes a falsehood, where Stein admits that the cited portion of White Zuckerman's Brief correctly states that Stein has already brought causes of action against White Zuckerman in Los Angeles Superior Court asserting the same claims raised in his Third-Party Complaint, here, although it is not clear what relevance White Zuckerman attributes to this fact.
The court finds that it must also comment on another instance in which Stein injected a plainly extraneous issue into the briefing of White Zuckerman's Motion To Dismiss. Stein concludes his brief by pointing out that White Zuckerman is represented in this Malpractice Action by an attorney who represented a defendant in the Underlying Action. In its Reply, White Zuckerman felt compelled to argue that this representation was not a violation of professional standards of conduct. The problem is that Stein injected an issue that has nothing whatsoever to do with whether this court has personal jurisdiction over White Zuckerman—and he does not even try to explain how it does. Stein asserted that he intended to object to White Zuckerman's attorney's "authorship of the Motion" now before the court, see Stein's Brief at 17, but he has not done so. Injection of the representation issue into the Motion To Dismiss arguments wasted the time and resources of the parties and the court.
The court has taken the time to lay out these unreasonable assertions in Stein's response to White Zuckerman's Motion to make clear to the parties that the court has little patience with unreasonable and time-consuming litigation strategies. The court also strongly suggests that all parties, not just Stein, consider carefully the reasonableness of their litigation conduct in this case.
In contrast, Stein's reliance on the filing of documents relating to White Zuckerman's designation as an expert in the Underlying Action in this forum is of little relevance to the analysis, because those filings were the unilateral activity of another party, a third person, or the court. See Burger King , 471 U.S. at 475, 105 S.Ct. 2174. White Zuckerman's intention that Dr. Luna's report would be filed in the court in this forum and its knowledge of some possibility that Dr. Luna would testify in this forum are the significant facts.
Stein has made out a prima facie case that this factor of the due process analysis weighs in favor of the exercise of personal jurisdiction over White Zuckerman in this forum.
c. The state's interest and the parties' convenience
The remaining factors in the due process analysis under controlling precedent are the state's interest in providing a forum for its residents and the convenience or inconvenience to the parties. Aly , 864 F.3d at 849. The court recognizes, however, that these factors carry little weight and are not dispositive. Downing , 764 F.3d at 912. Admittedly, Iowa has little interest in providing a forum for a lawsuit where none of the parties is an Iowa resident. On the other hand, for whatever little weight it may carry, the convenience of the parties will be best served by litigating both Golden's claims against Stein and Stein's third-party claims against White Zuckerman (and the other third-party defendant, Aaron & Gianna) in a single action in a single forum.
4. Summary
The court has considered the relevant factors and recognizes that it must treat White Zuckerman's Motion To Dismiss as, in substance, one for summary judgment, where no hearing has been held, but the parties have submitted exhibits and declarations. Creative Calling Solutions, Inc. , 799 F.3d at 979. After testing Stein's prima facie case of personal jurisdiction not by the pleadings alone, but by the affidavits and exhibits submitted by the parties, Fastpath , 760 F.3d at 820, the court concludes that Stein has carried his burden to make a prima facie showing that the exercise of personal jurisdiction over White Zuckerman in this forum is proper.
III. CONCLUSION
The court recognizes the dearth of Supreme Court or Eighth Circuit cases addressing the question of personal jurisdiction over an out-of-state expert witness, who provided expert services in litigation in a forum, when the expert witness is subsequently sued in a separate action in the same forum over its conduct in that litigation. The court also found little guidance, here, from the handful of cases addressing personal jurisdiction over out-of-state expert witnesses, because those cases involved distinguishable circumstances. Although the question may be a close one, the court concludes that White Zuckerman has sufficient contacts with this form, related to Stein's causes of action against it, because of its agreement to participate in a case in this forum as an expert witness, such that White Zuckerman could reasonably anticipate being haled into court in this forum over its performance of that agreement. Creative Calling Solutions , 799 F.3d at 980 (citing Burger King , 471 U.S. at 475, 105 S.Ct. 2174 ). Therefore, Stein has made out a prima facie case of personal jurisdiction over White Zuckerman.
IT IS ORDERED that third-party defendant White Zuckerman's February 20, 2019, Motion To Dismiss Defendant And Third-Party Complainant Stein's Third-Party Complaint For Lack Of Personal Jurisdiction [Dkt. No. 15] is DENIED.