H. Boone Porter etc. v. Frank S. Berall etc.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-3178
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H. Boone Porter, III, in his capacity as a *
Co-Trustee under the Third Amendment *
and Restatement of the H. Boone Porter *
Fund dated 2/6/98 as amended, and *
individually; Charlotte M. Porter, in her *
capacity as a Co-Trustee under the Third*
Amendment and Restatement of the H. *
Boone Porter Fund dated 2/6/98 as *
amended, and individually; Michael T. * Appeal from the United States
Porter, in his capacity as Co-Trustee * District Court for the
under the Third Amendment and * Western District of Missouri.
Restatement of the H. Boone Porter *
Fund dated 2/6/98, as amended, and *
individually, *
*
Appellants, *
*
v. *
*
Frank S. Berall; Mark H. Neikrie; *
Suzanne Brown Walsh; Copp & Berall, *
LLP, a Connecticut limited liability *
partnership, *
*
Appellees. *
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Submitted: April 18, 2002

Filed: June 14, 2002
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Before WOLLMAN, BEAM, and LOKEN, Circuit Judges.
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WOLLMAN, Circuit Judge.

H. Boone Porter, III (Boone Porter), and his siblings Charlotte M. Porter and
Michael T. Porter (collectively, plaintiffs) appeal the district court’s1 grant of the
defendants’ motion to dismiss for lack of personal jurisdiction. We affirm.

I.

The plaintiffs are the children of the Reverend H. Boone Porter (Reverend
Porter), who was the sole income beneficiary of a trust created by his father in 1960.
They are co-trustees of certain trusts created in connection with the H. Boone Porter
Fund, which was created by Reverend Porter. In addition, Boone Porter is a co-
trustee of the 1960 trust. The Fund and the trusts are registered in Jackson County,
Missouri. None of the plaintiffs are Missouri residents, but Boone Porter maintains
his law practice in Missouri. Reverend Porter and Boone Porter hired the defendants,
Franks S. Berall, Mark H. Neikrie, and Suzanne Brown Walsh of Copp & Berall,
L.L.P., to advise them on Connecticut law in connection with the Fund and the trusts
after Reverend Porter and his wife moved to Connecticut. The defendants are
Connecticut attorneys and residents.

Although the defendants did not solicit the plaintiffs’ business, there were
numerous phone calls and letters exchanged between Connecticut and Missouri. As
additional evidence of contacts between the defendants and the state of Missouri, the
plaintiffs point to the defendants’ use of an appointed agent to transact business in
Missouri; the execution of documents in Missouri that required Boone Porter’s

1
The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.

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signature; and what the plaintiffs characterize as the solicitation of further business
in Missouri from Boone Porter in connection with the trusts.

The plaintiffs alleged negligence, attorney malpractice, deceitful conduct, and
breach of fiduciary duties by the defendants as a consequence of the defendants’
failure to advise the plaintiffs of certain Connecticut tax consequences, resulting in
costly corrections. The plaintiffs argue that jurisdiction is proper in Missouri because
the injury from this negligence was felt in Missouri.

II.

In reviewing a dismissal for lack of personal jurisdiction, “we examine de novo
the question of whether the nonmoving party has established a prima facie case of
personal jurisdiction.” Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384,
1387 (8th Cir. 1991). In answering this question, we look first to see whether
Missouri’s long-arm statute confers jurisdiction over the defendants. Sales Serv., Inc.
v. Daewoo Int’l (America) Corp., 719 F.2d 971, 972 (8th Cir. 1983). If so, we then
determine whether the exercise of personal jurisdiction would violate the due process
clause of the Constitution. Austad Co. v. Pennie & Edmonds, 823 F.2d 223, 225 (8th
Cir. 1987). Because “[i]t is well settled . . . that the Missouri long-arm statute
authorizes the exercise of jurisdiction over non-residents ‘to the extent permissible
under the due process clause,’” FDIC v. Malmo, 939 F.2d 535, 537 (8th Cir. 1991)
(quoting Van Praag v. Columbia Classics Corp., 849 F.2d 1106, 1108 (8th Cir.
1988)), we turn immediately to the question whether the assertion of personal
jurisdiction would violate the due process clause. Id.

“In order to constitutionally assert personal jurisdiction over a non-resident
defendant, ‘traditional notions of fair play and substantial justice’ must not be
offended.” Austad, 823 F.2d at 226 (quoting Int’l Shoe Co. v. Washington, 326 U.S.
310, 316 (1945)). A defendant must have warning that his activities may result in his

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being haled into court in a particular jurisdiction and must invoke the benefits and
protections of that jurisdiction by purposefully availing himself of the privilege of
conducting those activities. Austad, 823 F.2d at 226. Supreme Court precedent
requires that there be a “substantial connection” between the defendant and the forum
state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). Determining
whether this standard is met requires the analysis of five factors:

(1) the nature and quality of the contacts with the forum state; (2) the
quantity of the contacts with the forum state; (3) the relation of the cause
of action to the contacts; (4) the interest of the forum state in providing
a forum for its residents; and (5) the convenience of the parties.

Land-O-Nod Co. v. Bassett Furniture Indus., 708 F.2d 1338, 1340 (8th Cir. 1983).
The last two factors are considered less important and are not determinative. Id. at
1340.

We conclude that the plaintiffs have not satisfied the first two factors
notwithstanding the numerous phone calls and letters that were exchanged between
the parties. Contact by phone or mail is insufficient to justify exercise of personal
jurisdiction under the due process clause. See, e.g., T.J. Raney & Sons, Inc. v. Sec.
Sav. & Loan Assoc., 749 F.2d 523, 525 (8th Cir. 1984). The additional evidence
pointed to by the plaintiffs, described above, is insufficient to justify the exercise of
personal jurisdiction. Those additional contacts do not distinguish this case from
those cases in which the contacts were held insufficient to support an extension of
personal jurisdiction.

In Austad, we held that a New York law firm did not have sufficient contacts
with South Dakota to confer personal jurisdiction in connection with its
representation of a South Dakota business in litigation in Maryland. Austad, 823
F.2d at 226. We found it significant that the defendants in Austad did not maintain
an office in South Dakota, did not advertise or solicit business in South Dakota, and

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did not actively seek out Austad as a client. Id. In Malmo, we held that a Tennessee
attorney did not have sufficient minimum contacts with Missouri when his only
contact with the forum was an initial letter of solicitation. Malmo, 939 F.2d at 537.
Other circuits have come to similar conclusions. See Sawtelle v. Farrell, 70 F.3d
1381 (1st Cir. 1995) (contacts insufficient to allow exercise of personal jurisdiction
in New Hampshire when New Hampshire resident retained Virginia law firm to bring
wrongful death action in Florida); Sher v. Johnson, 911 F.2d 1357 (9th Cir. 1990)
(personal jurisdiction was proper because the law firm’s compensation was secured
by a deed of trust encumbering the plaintiff’s home, but stated no personal
jurisdiction if a client brought a malpractice action over a Florida law firm in
connection with representation in Florida and only the normal incidents of
representation were present); Mayes v. Leipziger, 674 F.2d 178 (2d Cir. 1982) (no
personal jurisdiction in New York over a California law firm representing a New
York resident in California litigation); Kowalski v. Doherty, Wallace, Pillsbury &
Murphy, 787 F.2d 7 (1st Cir. 1986) (no personal jurisdiction in New Hampshire over
a Massachusetts law firm representing a New Hampshire client in legal matters in
Massachusetts). But see Trinity Indus., Inc. v. Myers & Assocs., 41 F.3d 229, 231
(5th Cir. 1995) (personal jurisdiction proper in Texas over an Illinois law firm;
representation of the Texas client in more than forty matters, including a court
appearance in Texas, indicated purposeful availment of the privileges of doing
business in Texas); Keefe v. Kirschenbaum & Kirschenbaum PC, 40 P.3d 1267 (Colo.
2002) (en banc) (personal jurisdiction proper in Colorado over a New York law firm
because lawyer “consciously entered into the agreement, with foreseeable
consequences” to represent resident of Colorado).

The plaintiffs also cannot establish a “substantial connection” between the
defendants and the forum state based on the final three factors in the analysis. The
alleged negligence of the defendants in failing to inform the plaintiffs of the change
in Connecticut law is not sufficiently related to an effect in Missouri to constitute a
relationship between the cause of action and the contacts. The district court found

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that “the claims about silence and failure to correct appear to be Connecticut-based.”
Porter v. Berall, 142 F. Supp. 2d 1145, 1148 (W.D. Mo. 2001). This approach has
also been adopted by the First Circuit, which “rejected the plaintiff’s contention that,
because the ‘effects’ of the firm’s negligence were felt in [the plaintiff’s home state],
the law firm had caused an injury there by conduct directed at that forum.” Sawtelle,
70 F.3d at 1390 (citing Kowalski, 787 F.2d at 11). The final two factors do not help
the plaintiffs, since none of the parties are Missouri residents.

The defendants were not licensed in Missouri, they did not maintain offices in
Missouri, and they did not solicit business in Missouri. They provided advice on
Connecticut law from their offices in Connecticut. Their actions do not show that
they could have foreseen being haled into court in Missouri based on their actions in
Connecticut. Accordingly, the district court did not err in dismissing this case for
lack of personal jurisdiction.

The judgment is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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