Tomlinson v. H&R Block, Inc. , 151 F. App'x 655 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 12, 2005
FOR THE TENTH CIRCUIT
Clerk of Court
ANGELA TOMLINSON, for herself
and all others similarly situated,
Plaintiff - Appellant,
No. 04-7070
v. (D.C. No. 04-CV-148-S)
(E.D. Okla.)
H&R BLOCK, INC.; H&R BLOCK
TAX SERVICE,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before HENRY, ANDERSON , and TYMKOVICH , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Angela Tomlinson appeals from a final order dismissing her case. Our
jurisdiction arises under 28 U.S.C. § 1291. Because we agree with the district
court that Tomlinson failed to establish personal jurisdiction over defendants, we
affirm.
I. Underlying facts
Tomlinson filed a class action for damages and injunctive relief in
Oklahoma state court. As the basis for jurisdiction, Tomlinson alleged that some
or all of defendants’ wrongful acts and conduct occurred in Oklahoma and that
defendant H&R Block, Inc., operates out of more than nine thousand tax offices
and ninety-eight financial centers in the United States and offers franchise
opportunities, seminars, and training sessions to teach people the tax preparation
business. Aplt. App. at 14-15. She claimed that she used defendants’ services to
prepare her income tax return and enrolled in income tax courses offered by
defendants. The complaint does not indicate where Tomlinson was living when
she allegedly used the tax services and enrolled for the course.
In Count I of her complaint, she alleged that H&R Block made false and
deceptive statements by using her social security number in educational seminars
and tax preparation training courses after it had published a privacy policy stating
they protect personal information. In Count II, she alleged that both defendants
misappropriated her social security number for their financial advantage by using
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it in tax preparation courses, apparently in a “2002 Student Work book” that was
otherwise unidentified. Id. at 41-2
Defendants removed the case to federal court and then filed a motion to
dismiss for lack of personal jurisdiction under Fed. R. Civ. P. 12(b)(2), asserting
that “she sued the wrong entities.” Aplt. App. at 32. The district court granted
the motion, and Tomlinson appeals.
II. Applicable legal standards
“Jurisdiction of the district court over a nonresident defendant in a suit
based on diversity is determined by the law of the forum state.” Wenz v. Memery
Crystal , 55 F.3d 1503, 1506 (10th Cir. 1995).
Our review of the district court’s jurisdictional ruling is de
novo. The following standard controls:
The plaintiff bears the burden of establishing personal
jurisdiction over the defendant. Prior to trial, however, when a
motion to dismiss for lack of jurisdiction is decided on the basis of
affidavits and other written materials, the plaintiff need only make a
prima facie showing. The allegations in the complaint must be taken
as true to the extent they are uncontroverted by the defendant’s
affidavits. If the parties present conflicting affidavits, all factual
disputes are resolved in the plaintiff’s favor, and the plaintiff’s prima
facie showing is sufficient notwithstanding the contrary presentation
by the moving party.
In a diversity case a plaintiff must satisfy the requirements of
the forum’s long arm statute as well as the federal Constitution to
establish personal jurisdiction. Oklahoma’s long arm statute is
coextensive with the constitutional limitations imposed by the Due
Process Clause. Therefore, if jurisdiction is consistent with the Due
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Process Clause, Oklahoma’s long arm statute authorizes jurisdiction
over a nonresident defendant.
Due process requirements are satisfied when personal
jurisdiction is asserted over a nonresident corporate defendant that
has certain minimum contacts with the forum state. The sufficiency
of a defendant’s contacts must be evaluated by examining the
defendant’s conduct and connections with the forum state to assess
whether the defendant has purposely availed itself of the privilege of
conducting activities within the forum state.
Williams v. Bowman Livestock Equip. Co. , 927 F.2d 1128, 1130-31 (10th Cir.
1991) (quotation marks, citations, footnote, and brackets omitted).
[T]here are two types of in personam jurisdiction: general and
specific. In order to establish general jurisdiction, it must be shown
that the nonresident defendant has maintained continuous and
systematic contact with the forum state. The facts required to
establish general jurisdiction must be extensive and persuasive. If
general jurisdiction is found, all causes of action against the
defendant, whether or not related to the defendant’s activities in that
state, may be pursued in its courts. . . . .
A court’s exercise of jurisdiction is referred to as specific
jurisdiction where the lawsuit arises out of the nonresident
defendant’s contacts with the forum state. A finding of specific
jurisdiction requires a two-step analysis. A court must first determine
whether a nonresident defendant has minimum contacts with the
forum state. If minimum contacts do exist, the court must then
determine whether the court's assertion of jurisdiction would comport
with traditional notions of fair play and substantial justice. The
assertion of in personam jurisdiction comports with fair play and
substantial justice if it is reasonable to require the defendant to
defend suit in the forum.
Lively v. IJAM, Inc., 114 P.3d 487, 494-95 (Okla. Civ. App. 2005) (quotation
marks and citations omitted). Oklahoma follows the principle articulated by the
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Supreme Court that, “a state generally has a manifest interest in providing its
residents with a convenient forum for redressing injuries inflicted by out-of-state
actors. So long as it creates a substantial connection with the forum, even a
single act can support jurisdiction.” Hough v. Leonard , 867 P.2d 438, 442 n.11
(Okla. 1993) (citing McGee v. Int’l Life Ins. , 355 U.S. 220, 223 (1959)). But the
mere allegation that a nonresident defendant tortiously injured a forum resident
does not necessarily establish sufficient minimum contacts to confer personal
jurisdiction on the forum. See Far West Capital, Inc. v. Towne, 46 F.3d 1071,
1079 (10th Cir. 1995). “Instead, in order to resolve the jurisdictional question, a
court must undertake a particularized inquiry as to the extent to which the
defendant has purposefully availed itself of the benefits of the forum’s laws.” Id.The plaintiff must provide record “ proof that the nonresident party had sufficient
contacts with the state to assure that traditional notions of fair play and
substantial justice would not be offended if this state exercised in personam
jurisdiction.” Conoco, Inc. v. Agrico Chem. Co. , 115 P.3d 829, 835 (Okla. 2004).
With these principles in mind, we examine the record for sufficient
evidence of personal jurisdiction over defendants.
III. Analysis
Defendants filed several affidavits averring that (1) H&R Block, Inc., is
solely a holding company, (2) neither defendant conducted business or training or
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published educational or promotional materials for use in Oklahoma, and (3)
neither had a physical presence, bank account, or phone listing in the state.
Defendants asserted that Oklahoma courts have no general jurisdiction over them
because they do not have substantial, systematic, and continuous contacts with the
state. They maintained that Oklahoma courts have no specific jurisdiction over
them because they had no minimum contacts with the state. Alternatively, they
argued that the harm Tomlinson complained of did not arise from or relate to any
contacts they may have had in Oklahoma.
In response, Tomlinson submitted four exhibits. The first exhibit was a
portion of a training manual for an Oklahoma Income Tax Course that stated it
was “[a]n [a]nnual [p]ublication of H&R Block, Region 37.” Aplt. App. at 55. As
defendants point out, this page does not mention either defendant’s legal name or
corporate status and says nothing about their contacts with Oklahoma. The
second exhibit was a single page from an unidentified “textbook” indicating that
it was copyrighted by “H&R Block Tax Services, Inc.”, see id. at 63, but
Tomlinson placed nothing into the record establishing from what document the
page was annexed. Her counsel argued that the page came from the training
manual identified in Exhibit A, see id. at 51, but counsel’s arguments are not
evidence. See Wenz , 55 F.3d at 1505) (“our task is to determine whether the
plaintiff’s allegations, as supported by affidavits, make a prima facie showing of
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personal jurisdiction”). The third and fourth exhibits were general informational
excerpts from the H&R Block website. Thus, as the district court pointed out, see
Aplt. App. at 81, nothing submitted by Tomlinson connects the copyrighted page
with the “Student Work book,” id. at 42, that her complaint alleged contains her
social security number. We agree with the district court that Tomlinson failed to
establish with this evidence that either named defendant had the requisite
minimum contacts with the state of Oklahoma to maintain personal jurisdiction
over them.
Tomlinson also argued that Oklahoma may assert general jurisdiction over
defendants because the H&R Block website indicates that H&R Block, Inc.,
serves over 18.7 million tax clients in the United States. She argues that the court
should infer from the exhibit that some of those clients are in Oklahoma. She
also contends that factual disputes should be resolved in her favor and, therefore,
she has established that H&R Block, Inc., has sufficient business contacts for the
court to take jurisdiction over it.
But one of the website exhibits Tomlinson relies on clearly states that
“H&R Block, Inc. is a holding company which has no employees” and that “[a]ny
goods or services that may be offered for sale through this Web site or a link
hereto are offered by operating subsidiaries of H&R Block, Inc., . . . and not by
H&R Block, Inc.” Aplt. App. at 68. Thus, it would be error to make the inference
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Tomlinson desires. Tomlinson failed to present “extensive and persuasive”
evidence that either defendant has the sufficiently “continuous and systematic”
contacts necessary to establish general jurisdiction under Oklahoma law. Lively ,
114 P.3d at 494. Under these circumstances, the district court properly granted
the motion to dismiss.
The judgment of the district court is AFFIRMED.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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