Olsen v. Babcock , 139 F. App'x 54 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS June 30, 2005
TENTH CIRCUIT PATRICK FISHER
Clerk
NAOMI OLSEN; TOM OLSEN,
Plaintiffs-Appellants,
No. 04-2023
v. (D.C. No. CIV-01-563-MCA/RLP)
(New Mexico)
PAUL MAPES; ROBERT BABCOCK,
Defendants-Apellees.
ORDER AND JUDGMENT *
Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
Tom and Naomi Olsen brought a pro se civil action against attorney Robert
Babcock and Administrative Law Judge Paul Mapes. 1 In a Second Amended
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
1
Tom Olsen is the plaintiff in a pending administrative proceeding brought
under the Longshore Harbor Worker’s Compensation Act, which is currently
before Judge Mapes in San Francisco, California. Robert Babcock is an attorney
who represents Mr. Olsen’s former employer, Triple A Machine Shop, Inc., in
that proceeding. Plaintiffs’ claims arise from the alleged conduct of Judge Mapes
Complaint filed without permission of the court, the Olsens attempted to add the
New Mexico Board of Pharmacy (Board) as a defendant. The claims against Mr.
Babcock were dismissed for lack of in personam jurisdiction. The claims against
Judge Mapes were dismissed based on the district court’s determination that the
Olsens failed to comply with the court’s orders to perfect service. The district
court then struck the Second Amended Complaint, effectively dismissing all
claims against the Board. The Olsens appealed the dismissal of claims against
Judge Mapes and the Board and we reversed. Olsen v. Mapes, 333 F.3d 1199(10th Cir. 2003). The Olsens did not appeal the dismissal of the complaint
against Mr. Babcock. Id. at 1200 n.1. Although noting the Olsens had not
appealed with respect to Mr. Babcock, on remand the district court nevertheless
reaffirmed its order of dismissal with prejudice with respect to him and granted
Judge Mapes’ motion to dismiss for lack of personal jurisdiction. The Olsens
appeal. We dismiss the appeal with respect to Mr. Babcock for lack of appellate
jurisdiction and otherwise affirm.
The first issue we must resolve is whether this court has jurisdiction over
Mr. Babcock. Although the Olsens raise issues concerning Mr. Babcock in their
appellate brief, he contends our jurisdiction is circumscribed to the contents of
the notice of appeal. F ED . R. A PP . P. 3(c) (the notice of appeal must designate the
and Mr. Babcock in those proceedings.
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order being appealed). However, timely filed appellate briefs and pro se
documents may serve as the functional equivalent of a notice of appeal. See, e.g.,
Smith v. Barry, 502 U.S. 244, 248-49 (1992); Rodgers v. Wyoming Att’y Gen., 205
F.3d 1201, 1204 n.3 (10th Cir. 2000), overruled on other grounds as recognized
by Moore v. Marr, 254 F.3d 1235, 1239 (10th Cir. 2001). Although the Olsens’
references to Mr. Babcock in their appellate brief constitute the functional
equivalent of a notice of appeal, their claims against him must nevertheless be
dismissed. “This court cannot exercise jurisdiction absent a timely notice of
appeal.” United States v. Smith, 182 F.3d 733, 734 (10th Cir. 1999). The
deadline for filing a notice of appeal in a civil case expires “30 days after the
judgment or order appealed from is entered.” F ED . R. A PP . P. 4(a)(1). The
Olsens’ appellate brief, dated June 25, 2004, was not filed within thirty days of
the court’s August 25, 2003 order dismissing Mr. Babcock, and we therefore lack
appellate jurisdiction over their claims against him.
The remaining issue is whether the district court erred in dismissing Judge
Mapes for want of in personam jurisdiction. “We review de novo the district
court’s dismissal for lack of personal jurisdiction.” Soma Med. Int’l v. Standard
Chartered Bank, 196 F.3d 1292, 1295 (10th Cir. 1999). “When, as in this case, a
district court grants a motion to dismiss for lack of personal jurisdiction without
conducting an evidentiary hearing, the plaintiff need only make a prima facie
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showing of personal jurisdiction to defeat the motion.” Id. (internal quotation
omitted). The district court held the Olsens failed to make a prima facie showing
that the constitutional requirements for the exercise of personal jurisdiction were
satisfied with respect to Judge Mapes. We agree.
“To obtain personal jurisdiction over a nonresident defendant in a diversity
action, a plaintiff must show that jurisdiction is legitimate under the laws of the
forum state and that the exercise of jurisdiction does not offend the due process
clause of the Fourteenth Amendment.” Id. (internal quotation omitted). New
Mexico’s long arm statute is coextensive with constitutional limitations imposed
by the due process clause. Tercero v. Roman Catholic Diocese of Norwich,
Conn., 48 P.3d 50, 54-55 (N.M. 2002). Our opinion in OMI Holdings, Inc. v.
Royal Ins. Co. of Canada, 149 F.3d 1086 (10th Cir. 1998), lays out the
well-established constitutional analysis for personal jurisdiction:
“The Due Process Clause protects an individual’s liberty interest in not
being subject to the binding judgments of a forum with which he has
established no meaningful ‘contacts[,] ties, or relations.’” Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 471-72 (1985). Therefore, a “court may
exercise personal jurisdiction over a nonresident defendant only so long as
there exist ‘minimum contacts’ between the defendant and the forum state.”
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 [(1980)].
The requirement that “minimum contacts” be present protects a defendant,
who has no meaningful contact with a state, from the burdens of defending
a lawsuit far from home in a forum where the substantive and procedural
laws may be quite different from those with which the litigant is familiar.
See id. at 292 . . . . The “minimum contacts” standard may be met in two
ways. First, a court may, consistent with due process, assert specific
jurisdiction over a nonresident defendant “if the defendant has
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‘purposefully directed’ his activities at residents of the forum, and the
litigation results from alleged injuries that ‘arise out of or relate to’ those
activities.” Burger King, 471 U.S. at 472 (internal quotations omitted).
Where a court’s exercise of jurisdiction does not directly arise from a
defendant’s forum-related activities, the court may nonetheless maintain
general personal jurisdiction over the defendant based on the defendant’s
general business contacts with the forum state. Helicopteros Nacionales de
Colombia v. Hall, 466 U.S. 408, 415 (1984).
Id. at 1090-91 (emphasis added). We agree with the district court that the Olsens’
submissions are insufficient to demonstrate the type of continuous and systematic
contacts with New Mexico that would warrant general jurisdiction over Judge
Mapes. The question then is whether the Olsens made a prima facie showing that
the requirements of specific jurisdiction have been met.
A specific jurisdiction analysis involves a two-step inquiry. First, we must
consider whether “the defendant's conduct and connection with the forum State
are such that he should reasonably anticipate being haled into court there.”
World-Wide Volkswagen, 444 U.S. at 297. In this connection, we examine
whether the “defendant purposefully avail[ed] itself of the privilege of conducting
activities within the forum State.” Hanson v. Denckla, 357 U.S. 235, 253 (1958).
“Second[,] if the defendant’s actions create sufficient minimum contacts, we must
then consider whether the exercise of personal jurisdiction over the defendant
offends ‘traditional notions of fair play and substantial justice.’” OMI, 149 F.3d
at 1091 (quoting Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S.
102, 113 (1987)). In other words, the forum state’s exercise of jurisdiction over
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the defendant must be reasonable “in light of the circumstances surrounding the
case.” Id. at 1091.
We agree with the district court that Judge Mapes’ contact with the Olsens
in response to proceedings they initiated in California did not create a substantial
connection between Judge Mapes and New Mexico. First, “[i]t is well-established
that phone calls and letters are not necessarily sufficient in themselves to
establish minimum contacts.” Far West Capital, Inc. v. Towne, 46 F.3d 1071,
1077 (10th Cir. 1995). Instead, “the exercise of jurisdiction depends on the
nature of those contacts.” Rambo v. Am. S. Ins. Co., 839 F.2d 1415, 1418 (10th
Cir. 1988). There is simply no evidence on the record that Judge Mapes
purposefully chose New Mexico as the forum for any of his contacts with the
Olsens. Judge Mapes neither lives nor works in New Mexico. Indeed, it was
mere fortuity that the Olsens happened to reside in New Mexico when some of
their contacts with Judge Mapes occurred. Burger King, 471 U.S. at 475(“‘purposeful availment’ requirement ensures that a defendant will not be haled
into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’
contacts”).
In addition, a showing of minimum contacts cannot rest on the Olsens’
unilateral actions seeking contact with Judge Mapes. Id. at 478 (an individual’s
contract with an out-of-state party alone does not automatically establish
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sufficient minimum contacts in the other party’s home forum). Tom Olsen is a
plaintiff in an administrative proceeding which is currently pending before Judge
Mapes in the Northern District of California. The mere fact that Judge Mapes
engaged in communication with the Olsens while they were in New Mexico
regarding a case they filed in California does not constitute sufficient minimum
contacts with New Mexico to support personal jurisdiction under federal law. See
Soma, 196 F.3d at 1298-99 (British bank’s actions in sending faxes and other
communications to Utah corporation held insufficient to establish specific
personal jurisdiction in Utah where corporation apparently unilaterally decided to
conduct business with British bank and Utah had only fortuitous role in parties’
relationship). In fact, all of the actions complained about by the Olsens were
conducted by Judge Mapes in his official capacity in California.
Even though Judge Mapes does not have the requisite minimum contacts
with New Mexico, we address the second part of the due process inquiry which
involves determining whether the exercise of personal jurisdiction over the
defendant offends “traditional notions of fair play and substantial justice.” OMI,
149 F.3d at 1091 (quotation omitted). We do so because the two requirements for
specific jurisdiction are interrelated such that an especially strong showing of
reasonableness may serve to fortify a borderline showing of minimum contacts.
Id. at 1091-92. Determining whether the second requirement is satisfied requires
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consideration of several factors: (1) the defendant’s burden of appearing, (2) the
forum state’s interest in adjudicating the dispute, (3) the plaintiff’s interest in
obtaining convenient and efficient relief, (4) the judicial system’s interest in
obtaining the most efficient resolution of the controversy, and (5) the common
interests of all sovereigns in promoting substantive social policies. See Burger
King, 471 U.S. at 476-77.
We agree with the district court with regard to the reasonableness inquiry.
There do not appear to be any practical burdens or inconveniences for either party
associated with litigating the claims outside of New Mexico because both parties
currently reside in California. The Olsens have not identified any interest in the
state of New Mexico in adjudicating their dispute with Judge Mapes, nor have
they pointed to any fundamental substantive social policy that would be advanced
by litigating their claims in New Mexico. Moreover, retention of the case by the
District of New Mexico does not appear necessary to bring about an efficient
resolution. Thus, the constitutional prerequisites for the district court’s exercise
of specific jurisdiction over Judge Mapes have not been satisfied.
For the reasons stated above, we DISMISS the appeal against Mr. Babcock
and otherwise AFFIRM.
SUBMITTED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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