Opinion
CIVIL ACTION No. 02-2435-CM
February 26, 2004
MEMORANDUM AND ORDER
Pending before this court is the Motion to Dismiss of Defendant Joe Zapulla (Doc. 81). Zapulla argues that plaintiffs' suit should be dismissed, pursuant to Fed.R.Civ.P. 12(b)(2), because the court lacks personal jurisdiction over him.
The court has already described the factual background in its October 21, 2003, Order (Doc. 79).
By Order dated October 21, 2003, this court granted defendants Rare Medium Group, Inc., Glenn S. Myers, and Jeffrey J. Kaplan's (the "Rare Medium defendants") motion to dismiss for lack of personal jurisdiction. In the course of dismissing the Rare Medium defendants, the court concluded that Zapulla's actions had not created sufficient minimum contacts with Kansas to justify the court's exercise of personal jurisdiction. Nevertheless, the court did not dismiss Zapulla because he had not joined the Rare Medium defendants' motion. Zapulla now requests that the court dismiss him based on case law and the doctrine of the law of the case.
II. Legal Standards
A. Personal Jurisdiction
A plaintiff opposing a motion to dismiss for lack of personal jurisdiction bears the burden of showing that the court's exercise of personal jurisdiction over the defendant is proper. Kuenzle v. HTM Sport-Und Freizeitgerate AG, 102 F.3d 453, 456 (10th Cir. 1996). If the motion to dismiss is submitted prior to trial on the basis of affidavits and other written materials, the plaintiff need only make a prima facie showing to avoid dismissal for lack of personal jurisdiction. Id. On a pretrial motion to dismiss, all factual disputes are resolved in favor of the plaintiff. Id. If the plaintiff makes the required prima facie showing that personal jurisdiction exists, "a defendant must present a compelling case demonstrating `that the presence of some other considerations would render jurisdiction unreasonable.'" OMI Holdings, Inc. v. Royal Ins. Co. of Can., 149 F.3d 1086, 1091 (10th Cir. 1998) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985)).
In the instant case, the court must determine that the exercise of jurisdiction comports with due process and that an applicable statute potentially confers jurisdiction by authorizing service of process. Peay v. BellSouth Med. Assistance Plan, 205 F.3d 1206, 1209 (10th Cir. 2000). The Kansas long-arm statute is construed liberally to allow jurisdiction to the full extent permitted by due process; therefore, the court proceeds directly to the constitutional analysis. Federated Rural Elec. Ins. Corp. v. Kootenai Elec. Co-op., 17 F.3d 1302, 1305 (10th Cir. 1994).
Under the due process analysis, the "constitutional touchstone" is "whether the defendant purposely established `minimum contacts' in the forum state." Burger King, 471 U.S. at 474 (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). A nonresident party creates minimum contacts by some act or actions in which it purposefully avails itself of the privilege of conducting activities in the forum state. Hanson v. Denckla, 357 U.S. 235, 253 (1958). The purposeful availment requirement ensures that a defendant will not be sued in a foreign jurisdiction solely as a result of the unilateral activity of another party. Burger King, 471 U.S. at 475.
Consistent with due process, specific jurisdiction may be conferred over a nonresident defendant where the court's exercise of jurisdiction directly arises from a defendant's forum-related activities. To determine whether specific jurisdiction is appropriate, the court must first decide whether the defendant has such minimum contacts within the forum state "that he should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1979). Second, the court must consider whether the exercise of personal jurisdiction offends "traditional notions of fair play and substantial justice." Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 113 (1987).
B. Law of the Case
Under the law of the case doctrine, "when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Az. v. Calif., 460 U.S. 605, 618 (1983). The doctrine, therefore, "directs a court's discretion" regarding future decisions in the same case. Id.
Exceptions to the law of the case doctrine are rare, and a court will depart only "in three exceptionally narrow circumstances: (1) when the evidence in a subsequent trial is substantially different; (2) when controlling authority has subsequently made a contrary decision of the law applicable to such issues; or (3) when the decision was clearly erroneous and would work manifest injustice." United States v. LaHue, 261 F.3d 993, 1010-11 (10th Cir. 2001) (citing United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir. 1998)).
III. Analysis
This court, in its October 21, 2003, Order, analyzed Zapulla's contacts with Kansas and found them constitutionally insufficient to support the court's exercise of personal jurisdiction. The Tenth Circuit has cited with approval the district court's conclusion that "numerous" or "hundreds" of phone calls and letters will support personal jurisdiction. Soma Med. Int'l, Inc. v. Standard Chartered Bank, 196 F.3d 1292, 1299 (10th Cir. 1999) (citing Harnischfeger Eng'rs, Inc. v. Uniflo Conveyor, Inc., 883 F. Supp. 608, 615 (D. Kan. 1995). However, the Tenth Circuit also has determined that phone calls and "ten-to-twenty" faxes and letters do not create the minimum contacts necessary for the court's exercise of personal jurisdiction. Far West Capital, Inc., v. Towne, 46 F.3d 1071, 1077 (10th Cir. 1995).
In granting the Rare Medium defendants' motion to dismiss, this court found Zapulla's contacts analogous to those in Far West Capital and deemed them insufficient as a matter of law to support personal jurisdiction. The law of the case doctrine thus precludes reconsideration of Zapulla's contacts. See Arizona v. California, 460 U.S. 605, 618 (1983) ("The [law of the case] doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.").
Plaintiffs argue that jurisdiction over Zapulla is proper under the Kansas long-arm statute. However, because the Kansas long-arm statute is construed liberally to allow jurisdiction to the full extent permitted by due process, the proper question is whether the court's order complies with due process. See Federated Rural Elec. Ins. Corp., 17 F.3d at 1305. Consequently, plaintiffs neither present any subsequent controlling authority demonstrating that the court's decision violates due process, nor do they argue that the court's order was "clearly erroneous and would work a manifest injustice." See Alvarez, 142 F.3d at 1247. Therefore, none of the exceptions to the law of the case doctrine apply and this court repeats its original determination that Zapulla's contacts with Kansas will not support the court's exercise of personal jurisdiction.
IV. Order
IT IS THEREFORE ORDERED that defendants' Motion to Dismiss (Doc. 81) is granted. The case is hereby dismissed.