Int'l Medical Group v. American Arbitration , 312 F.3d 833 ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3270
INTERNATIONAL MEDICAL GROUP,
INCORPORATED, an Indiana Corporation,
and SIRIUS INTERNATIONAL INSURANCE
CORPORATION, a foreign corporation,
Plaintiffs-Appellants,
v.
AMERICAN ARBITRATION ASSOCIATION,
INCORPORATED, JANELLA BROWN, JOHN
GERMANI, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 00 C 1020—Sarah Evans Barker, Judge.
____________
ARGUED APRIL 15, 2002—DECIDED DECEMBER 3, 2002
____________
Before ROVNER, DIANE P. WOOD and EVANS, Circuit
Judges.
ROVNER, Circuit Judge. International Medical Group,
Inc. (“IMG”) and Sirius International Insurance Corpora-
tion (“Sirius”) were so displeased at being drawn into an
arbitration proceeding that they sued not only the claim-
ant who drew them in but his lawyers, their law firm, the
2 No. 01-3270
American Arbitration Association (“AAA”) and a few hap-
less employees of the AAA. After this Indiana state court
proceeding was removed to federal court, the district
court dismissed the complaint, in part for lack of per-
sonal jurisdiction over most of the defendants and in part
because of arbitral immunity, failure to state a claim
upon which relief can be granted, and because AAA had
been improperly joined. IMG and Sirius appeal and we
affirm.
I.
Michael Ogdon, a citizen of Great Britain and resident
of Florida, purchased a health insurance policy from
Sirius in late 1998. Sirius, a Swedish corporation, desig-
nated IMG, an Indiana company, as the policy admini-
strator and general underwriter. In January 1999, Ogdon
received emergency medical treatment at a Florida hos-
pital and subsequently submitted bills totaling approxi-
mately $10,000 to IMG as plan administrator. IMG inves-
tigated the claim and refused to pay any of the bills on
the ground that all of the charges related to a pre-exist-
ing condition that was not covered by the policy. Ogdon
filed a complaint with the Indiana Department of Insur-
ance, alleging that his illness was not a pre-existing con-
dition at the time the policy was issued and that denial
of his claim was improper, pretextual and in bad faith. The
record does not reveal how or whether the Indiana De-
partment of Insurance resolved that claim, but eventually
Ogdon requested cancellation of the policy and a return of
his premium. IMG obliged by cancelling the policy as of
February 25, 2000 and returning a pro rata share of the
premium Ogdon had paid for the policy.
In the meantime, Ogdon, through his attorneys (Hilda
Piloto and Juan Rodriguez of the firm Rodriguez &
Machado, P.A.) filed a Statement of Claim and a Demand
No. 01-3270 3
for Arbitration (“Demand”) with the AAA in Miami, Florida.
The insurance policy provided that certain disputes under
the policy would be subject to arbitration:
If any dispute shall arise as to the amount to be
paid under this insurance (liability being otherwise
admitted), such dispute shall be referred to arbitra-
tion in accordance with procedures of the American
Arbitration Association. Where any dispute is by
this provision referred to arbitration, the making of
an award shall be a condition precedent to any right
of action against the Company.
R.1, Complaint, Ex. B, ¶ 16. The Demand named both IMG
and Sirius as respondents. According to the Demand,
Ogdon purchased insurance from Sirius, and IMG was the
plan administrator. The Demand stated that IMG and
Sirius had wrongfully refused to pay out Ogdon’s claim. The
AAA assigned Janella Brown as the case manager. Brown
worked in the AAA’s Southwest Case Management Cen-
ter in Atlanta, Georgia, a facility that administered arbi-
trations that take place in Miami, Florida. On March 17,
2000, Brown sent a letter to Thomas Dawson, a New
York lawyer that Ogdon had identified as the represen-
tative for IMG and Sirius. The letter informed Dawson
that Ogdon had made a demand for arbitration, and set
out preliminary procedural matters. R. 1, Complaint, Ex. H.
Dawson forwarded the letter to F. Jonathon Zusy, the
general counsel for IMG located in Indiana. Zusy re-
sponded to Brown’s letter on behalf of both IMG and Sirius,
denying that the arbitration was authorized by the in-
surance contract and declining to provide any of the
information requested by the AAA. He explained that
the contract provided for arbitration only if liability had
been admitted, and that IMG and Sirius had never ad-
mitted liability. Zusy objected to an arbitration being
held in Florida or anyplace else and asked the AAA to
4 No. 01-3270
cancel the arbitration. R. 1, Complaint, Ex. I. Brown replied
by a letter addressed to Ogdon’s lawyers and Dawson.1 She
requested that Ogdon respond to Zusy’s letter by April 4,
2000. R. 1, Complaint, Ex. J. When Ogdon did not respond,
Brown sent a letter to both Ogdon’s counsel and Zusy
stating that Ogdon had met the filing requirements of
1
Dawson again forwarded the letter to Zusy. Zusy then sent
Brown a sharp reply, telling her that he was counsel for IMG, that
IMG was neither a party nor a respondent and warning Brown
and the AAA that IMG reserved its right to seek damages against
them if they persisted with the arbitration. He complained that
Brown’s “unilateral” decision to continue involving Dawson was
causing IMG damages through the incurring of unnecessary at-
torneys’ fees. R. 1, Complaint, Ex. K. Zusy’s letter is curious be-
cause Dawson is named in the insurance policy as Sirius’s des-
ignated agent for accepting service of process for any dispute
arising out of the insurance contract. Because Sirius was named
as a respondent in Ogdon’s Demand, it was entirely appropriate
for Brown to send a copy of any correspondence to the designated
agent unless and until Sirius notified the AAA of any change in
its representation. Although Zusy’s original letter to the AAA
purported to respond on behalf of both IMG and Sirius, Zusy
identified himself only as general counsel for IMG and gave
no indication that the original letter had been misdirected.
Indeed, in the second letter, he identified himself solely as IMG’s
general counsel, which might lead a reasonable person to believe
that Dawson still represented Sirius or that Sirius was now
unrepresented. Moreover, if Dawson was not IMG’s attorney, it
is difficult to understand how IMG would have been liable for
“unnecessary attorneys’ fees.” Presumably Sirius, having named
Dawson as its designated agent, would have been liable for any
attorneys’ fees incurred in the arbitration. Nonetheless, Zusy
insisted that all future correspondence “to IMG” be directed
to him and to no other person. The AAA thereafter sent all of its
correspondence directly to Zusy alone, presumably on the theory
that he was also representing Sirius. We detail this strange
correspondence from Zusy only because it becomes relevant lat-
er to questions of personal jurisdiction.
No. 01-3270 5
the AAA’s rules and therefore the AAA intended to go
forward with the arbitration:
Accordingly, in the absence of an agreement by the
parties or a court order staying this matter, the As-
sociation will proceed with further administration. The
parties may wish to raise this issue with the arbitra-
tor at or prior to the hearing.
R. 1, Complaint, Ex. L.
Zusy sent another letter reiterating the positions pre-
viously taken by IMG and Sirius. R. 1, Complaint, Ex. M.
Ogdon’s lawyers stated their belief that the dispute
was subject to arbitration. R. 1, Complaint, Ex. Q. Brown
wrote another letter to the parties indicating that the
AAA had reviewed the various positions of the parties
regarding the arbitrability of the matter and had con-
cluded that the arbitration would proceed absent an
agreement by the parties or a court order staying the
proceedings. R. 1, Complaint, Ex. R. Brown repeated
that the AAA could not determine issues of arbitrability
and informed the parties that the arbitrator had the pow-
er to determine the existence or validity of a contract
of which an arbitration clause forms a part. R. 1, Com-
plaint, Ex. R.
Shortly thereafter, IMG and Sirius filed suit in Indiana
state court, requesting a stay of the arbitration proceed-
ing and seeking a declaratory judgment clarifying the
rights and obligations of the parties under the insurance
contract. They alleged abuse of process, malicious prosecu-
tion and bad-faith arbitration. Their ex parte request for
a temporary restraining order was granted. The state
court later granted Sirius and IMG’s request for a prelimi-
nary injunction and entered findings on several of the
matters raised in the request for declaratory relief. The
AAA suspended the arbitration on learning of the state
court’s order. Ogdon, Piloto, Rodriguez, and the firm of
6 No. 01-3270
Rodriguez & Machado, P.A. (collectively the “Non-AAA
Defendants”) removed the state court lawsuit to the fed-
eral district court. Sirius moved to dismiss all of the
claims it raised against the AAA, Brown and her supervi-
sor, John Germani (collectively the “AAA Defendants”). The
district court granted that motion.
All of the defendants then moved to dismiss the remain-
ing claims under Rules 12(b)(2) and 12(b)(6). The district
court dismissed the claims against Brown and Germani, the
AAA employees, because their contacts with the State
of Indiana were insufficient to confer personal jurisdic-
tion. In particular, Germani had no contacts with Indiana
at all and had merely advised Brown on how to proceed
with the arbitration. Brown’s only contacts with Indiana
were the five letters she mailed to Zusy after Zusy insisted
that all mail pertaining to the arbitration be sent to him
rather than to Dawson, Sirius’s registered agent in New
York. The court noted that all of the correspondence re-
lated to a quasi-legal proceeding that was never intended
to occur in Indiana. The court concluded that asserting
personal jurisdiction over Germani and Brown in Indi-
ana would violate the due process clause of the Four-
teenth Amendment. The court therefore dismissed all
claims against those two defendants.
The court next considered the AAA itself. The complaint
raised three claims against the AAA. Count I sought
damages for tortious actions of abuse of process, malicious
prosecution and bad-faith arbitration. Count II sought
preliminary and permanent injunctive relief to stay the
arbitration. Count III requested a declaratory judgment
specifying that the arbitration was improper and defin-
ing the rights and obligations of the parties to the insur-
ance contract. Because the insurance contract provided
that any arbitration would proceed under the AAA’s own
rules and procedures, the court first referred to those
rules. The AAA’s rules specified that neither the AAA
No. 01-3270 7
nor any arbitrator is a necessary party in judicial proceed-
ings relating to the arbitration. The rules also provided
that neither the AAA nor any arbitrator shall be liable
to any party for any act or omission in connection with
an arbitration conducted under the AAA’s rules. The
court noted that these provisions might release AAA
from any liability to Sirius, but that IMG was not a party
to the insurance contract and thus was not bound by
the AAA’s rules. The court instead dismissed Counts II
and III against the AAA because the AAA was unneces-
sary to the resolution of any claim directed at the propriety
of arbitration and because the AAA and its agents were
entitled to arbitral immunity, an extension of judicial
immunity.
The district court addressed Count I as if it were com-
prised of three separate claims, for malicious prosecu-
tion, abuse of process and bad-faith arbitration. The court
first noted that the claim of bad-faith arbitration had
not been recognized by the Indiana courts or by the courts
of any other jurisdiction. Because IMG failed to identify
the elements of this novel cause of action and because
it appeared duplicative of the other two tort claims in
Count I, the court dismissed the claim for bad-faith arbi-
tration. The court next noted that a claim for malicious
prosecution was traditionally intended to provide re-
course to criminal defendants who were wrongfully
charged but that a parallel action existed for civil claims,
wrongful use of civil proceedings. The court noted that
the elements of the civil claim are substantially similar
to those in the criminal context and that IMG failed to
allege facts sufficient to make out two of those elements.
In particular, IMG failed to allege that the AAA initiated
or caused to be initiated a cause of action against IMG.
Moreover, IMG could not show that the cause of action
8 No. 01-3270
terminated in IMG’s favor.2 The court found that the
claim was thus not yet ripe and dismissed it.
On IMG’s abuse of process claim, the court noted that
this cause of action required a showing of misuse or mis-
application of process, for an end other than that which
it was designed to accomplish. The “process” involved in
IMG’s claim was the arbitration initiated by Ogdon and
the Non-AAA Defendants. The court noted that the AAA’s
role was analogous to that of a court clerk who has
placed on the docket a case filed by a claimant. Although
the AAA’s rules required it to make a preliminary deter-
mination that a claim for arbitration is made pursuant to
a contract authorizing arbitration, no rule or principle
required the AAA to make a searching analysis of the
claim’s merits prior to docketing. Rather, the AAA was
entitled to docket the claim and have it proceed until a
judicial (or quasi-judicial) determination was made that
the cause failed for lack of jurisdiction or on the merits
of the claim. The court thus concluded that in the absence
of process initiated or caused to be initiated by the AAA,
the claim of abuse of process warranted dismissal for fail-
ure to state a claim.
The court similarly dismissed the claims against all of
the Non-AAA defendants because none of those defen-
dants had sufficient contacts with the State of Indiana
to justify an exercise of personal jurisdiction over them
in that state. Recall that the Non-AAA Defendants were
2
The elements of malicious prosecution are (1) the defendant
instituted or caused to be instituted a prosecution against the
plaintiff; (2) the defendant acted with malice in doing so; (3) the
prosecution was instituted without probable cause; and (4) the
prosecution terminated in the plaintiff ’s favor. Butt v. McEvoy,
669 N.E.2d 1015, 1017 (Ind. Ct. App. 1996). The elements of a
claim for wrongful use of civil proceedings simply parallel these
elements.
No. 01-3270 9
Ogdon, his lawyers Hilda Piloto and Juan Rodriguez, and
their law firm, Rodriguez & Machado, P.A. Rodriguez
had the fewest contacts with Indiana, consisting only of
a letter to IMG to inform the company that Ogdon would
submit his claim to arbitration if IMG refused to pay
his hospital bills. The court found that contact too at-
tenuated to serve as a basis for personal jurisdiction
over Rodriguez. Piloto had more contacts with Indiana,
some relating to the Florida arbitration and some relat-
ing to the filing of Ogdon’s complaint with the Indiana
Department of Insurance. Although Piloto’s contacts re-
lating to the arbitration were slightly more numerous
than Rodriguez’s, the court found that filing the Miami
arbitration and mailing notices to IMG in Indiana was
too attenuated to subject Piloto (or her firm) to personal
jurisdiction in Indiana. The court found the filing of the
administrative complaint with the Department of Insur-
ance insufficient because that action was unrelated to
the claims filed in the instant case and because the con-
tacts were few and were qualitatively insignificant.
Finally, the court considered the claims against Ogdon
himself and whether personal jurisdiction could be ex-
erted over him in Indiana. The court noted that Ogdon
was never physically present in Indiana and was fortu-
itously involved with that state only because Sirius se-
lected IMG as the plan administrator. Ogdon communicated
with IMG in Indiana when submitting his claim for cover-
age and when he requested cancellation of his policy. He
also caused a complaint to be filed with the Indiana De-
partment of Insurance. All of these contacts were uncon-
nected to the Florida arbitration, and the district court
found they were insufficient to conclude that Ogdon had
purposefully availed himself of the privileges and pro-
tections of Indiana law. Because Ogdon could not reason-
ably anticipate being haled into court in Indiana, the court
concluded that an exercise of in personam jurisdiction
10 No. 01-3270
over him would not comport with due process. The court
therefore dismissed all claims against Ogdon. IMG and
Sirius appeal.
II.
On appeal, IMG and Sirius raise three issues: (1) whether
the complaint states a viable claim against the AAA
and Brown; (2) whether Brown’s contacts with Indiana
are sufficient to establish personal jurisdiction over her
in Indiana; and (3) whether the Non-AAA Defendants’
contacts with Indiana are sufficient to establish per-
sonal jurisdiction over them in Indiana. Sirius asked the
district court to dismiss with prejudice all of its claims
against the AAA Defendants and so does not appeal those
dismissals. IMG does not appeal the dismissal of all
claims against Germani. Otherwise, IMG and Sirius appeal
all other dismissals.
A.
We begin with the district court’s dismissal of the
claims against the AAA and Brown on the basis of ar-
bitral immunity and for failure to state a claim.3 We will
affirm a dismissal under Rule 12(b)(6) only if it is clear
that the plaintiffs cannot establish any set of facts that
would entitle them to the relief requested. Panaras v.
Liquid Carbonic Indus. Corp., 74 F.3d 786, 791 (7th Cir.
1996); Mosley v. Klincar, 947 F.2d 1338, 1339 (7th Cir.
1991); Gibson v. City of Chicago, 910 F.2d 1510, 1520-21
(7th Cir. 1990). In making this assessment, we read the
3
For the purposes of this analysis, Brown, who was acting in
her capacity as an employee of the AAA, will be treated as hav-
ing the same rights and liabilities as the AAA for acts taken in
the scope of her duties for the AAA.
No. 01-3270 11
complaint liberally and accept as true all well-pleaded
allegations and the inferences that may be reasonably
drawn from them. Panaras, 74 F.3d at 791; Mosley, 947
F.2d at 1339; Gibson, 910 F.2d at 1520-21.
IMG argues that arbitration is a matter of contract.
Because the AAA concedes that IMG was not a party to
the insurance contract between Ogdon and Sirius, IMG
contends that the AAA engaged in tortious conduct by
asserting jurisdiction over IMG. IMG contends that ar-
bitral immunity should not apply when the sponsoring
body (in this case, the AAA) has acted in the clear ab-
sence of jurisdiction. IMG acknowledges that it was un-
able to find any authority defining a cause of action
against an arbitrator or sponsoring organization for the
harm caused when that arbitrator or organization acts
in the clear absence of jurisdiction. IMG asks this Court
to name this new cause of action and define its parame-
ters. The AAA maintains that it is not a proper party
to any suit regarding the arbitration and that it is pro-
tected by arbitral immunity.
The AAA does not dispute that arbitration is a matter
of contract. A “party cannot be required to submit to
arbitration any dispute which he has not agreed so to
submit.” AT&T Techs., Inc. v. Communications Workers
of America, 475 U.S. 643, 648 (1986) (quoting United
Steelworkers of America v. Warrior & Gulf Navigation
Co., 363 U.S. 574, 582 (1960)). This is because arbitrators
derive their authority to resolve disputes from the prior
agreement of the parties to submit their grievances to
arbitration. AT&T, 475 U.S. at 648-49. But it is not the
responsibility of the AAA or even the arbitrator to de-
termine whether a particular agreement creates a duty
for the parties to arbitrate a particular grievance. AT&T,
475 U.S. at 649. Unless the parties clearly and unmis-
takably provide otherwise, the question of arbitrability is
to be decided by a court, not by an arbitrator. Id.
12 No. 01-3270
IMG insists that the AAA violated that principle and
decided the arbitrability of the case when it purported to
assert jurisdiction over IMG and attempted to move the
matter forward through arbitration. Under IMG’s logic,
the AAA would have been deciding the arbitrability of
the case no matter what it did after the Demand was filed.
Once IMG objected to the arbitration, the AAA had only
two choices, to proceed or not to proceed. The AAA pro-
ceeded after determining that its filing requirements had
been met and after informing IMG that it could ask a
court to determine the arbitrability of the matter. Indeed,
the very documents IMG relies upon to show the AAA
decided the arbitrability of the matter contradict its po-
sition. The AAA, through Brown, expressly declined to
decide the arbitrability of the matter. After informing
IMG that it would stop the arbitration if directed by a
court to do so, the AAA halted the process at once when
IMG obtained a state court order. Until that time, the AAA
was well within its rights to proceed with the arbitration,
and was acting in a manner similar to a clerk of court
upon receiving a filing that complies with the court’s rules.
The cases uniformly support arbitral immunity in situ-
ations such as occurred here. We have held, for example,
that arbitral immunity should extend to cases where the
authority of an arbitrator to resolve a dispute is challenged.
Tamari v. Conrad, 552 F.2d 778, 780 (7th Cir. 1977). In
Tamari, the plaintiff argued that arbitrators are not
entitled to immunity if they have no right to arbitrate the
dispute in the first place. 552 F.2d at 780. We held that
arbitral immunity should apply when the arbitrator’s
authority is challenged because arbitrators will be dis-
suaded from serving if they can be caught up in the dispute
and be saddled with the burdens of defending a lawsuit.
See Jain v. deMere, 51 F.3d 686, 688 (7th Cir. 1995), cert.
denied, 516 U.S. 914 (1995) (noting that the Federal
Arbitration Act creates a strong presumption in favor of
No. 01-3270 13
arbitration). We noted that arbitrators have no interest
in the outcome of the matter, and thus should not be
compelled to become parties to the dispute. Tamari, 552
F.2d at 781. We found suing an arbitrator to be compa-
rable to suing jurors when a litigant is dissatisfied with
the outcome of a lawsuit. Such a suit would place an un-
fair burden on jurors and would discourage others from
jury service. Moreover, the suit would not be necessary
for a litigant to obtain relief. The composition of a jury,
for example, can be challenged through appellate review
of the original action. Similarly, IMG or any party to an
arbitration can obtain relief by seeking a stay against
the party bringing the arbitration. There is no need to
seek a stay against the sponsoring organization. Tamari,
552 F.2d at 781. See also New England Cleaning Servs.,
Inc. v. American Arbitration Ass’n, 199 F.3d 542 (1st Cir.
1999) (sponsoring organization’s immunity extends to all
administrative tasks it performs and will apply unless the
demand for arbitration is so deficient on its face as to sig-
nal a clear absence of jurisdiction); Hawkins v. National
Ass’n of Sec. Dealers, Inc., 149 F.3d 330, 332 (5th Cir. 1998)
(arbitrators and sponsoring organizations are immune
from civil liability arising from actions taken in the course
of conducting arbitration proceedings); Olson v. National
Ass’n of Sec. Dealers, 85 F.3d 381, 382 (8th Cir. 1996)
(a sponsoring organization is immune from civil liability
for improperly selecting an arbitration panel even if the
selection violates the organization’s internal rules be-
cause quasi-judicial immunity applies to both sponsor-
ing organizations and arbitrators; immunity protects de-
cision makers from undue influence and protects the
decision-making process from attack by dissatisfied liti-
gants); Austern v. Chicago Bd. Options Exch., Inc., 898 F.2d
883 (2d Cir. 1990), cert. denied, 498 U.S. 850 (1990) (arbi-
trators in contractually agreed upon arbitration proceed-
ings are absolutely immune from liability in damages for
all acts within the scope of the arbitral process).
14 No. 01-3270
IMG complains that arbitral immunity does not apply
here because it was never a party to a contract authoriz-
ing arbitration and the AAA therefore acted in the clear
absence of jurisdiction. IMG relies on our reasoning in
Caudle v. American Arbitration Ass’n, 230 F.3d 920 (7th
Cir. 2000). Caudle sued the AAA for breach of contract
because he believed the AAA was charging an unreason-
ably high fee to conduct an arbitration. The district court
dismissed the suit after finding that the AAA was en-
titled to immunity. We vacated and remanded with instruc-
tions to dismiss for want of jurisdiction after determining
there was no basis for Caudle to bring the suit in federal
court. Before vacating on this ground, however, we dis-
cussed arbitral immunity, questioning whether the princi-
ple was properly understood as immunity rather than a
conclusion that arbitrators and sponsoring organizations
are not the real parties in interest. 230 F.3d at 922. We
hypothesized a scenario in which the AAA might be held
liable for its actions. If Caudle had paid the entire amount
requested by the AAA to conduct the arbitration and the
AAA had then pocketed the money without arbitrating the
dispute, we speculated that it was unlikely the AAA could
claim immunity in response to a demand for a refund. Id.
We declined to decide the issue, however, because we
determined that there was no jurisdiction for Caudle to
bring the case in federal court. 230 F.3d at 922.
IMG now seizes upon the Caudle hypothetical and ar-
gues that the AAA’s assertion of jurisdiction over it when
it was not a party to the insurance contract authoriz-
ing arbitration is outside the scope of arbitral immunity.
IMG misses an important distinction between the Caudle
hypothetical and the circumstances presented here. In
the Caudle hypothetical, the facts giving rise to the poten-
tial claim have nothing to do with arbitrability or with
the administrative duties of the AAA. The claim that
one may not retain a payment for services that are never
No. 01-3270 15
rendered can be stated entirely without reference to the
arbitration. Here, however, the claim is integrally related
to the administrative tasks of the AAA, as noted previous-
ly, similar to the administrative tasks of a court clerk ac-
cepting a complaint for filing. See Tamari, 552 F.2d at
780 (arbitral immunity should extend to cases where the
authority of the arbitrator to resolve a dispute is chal-
lenged); New England Cleaning Servs., 199 F.3d at 545 (a
sponsoring organization’s immunity extends to the admin-
istrative tasks it performs, insofar as these are integrally
related to the arbitration). The appropriate remedy for
an administrative mistake by the AAA (and we are not
finding here that the AAA erred in accepting the demand
and proceeding with the arbitration) would be for the
wronged party to seek injunctive relief against the party
initiating the arbitration in an appropriate court. The AAA
need not be a party to that action and should be spared
the burden of litigating the appropriateness of its exercise
of jurisdiction.
Because we are holding that AAA is immune from a
suit based on wrongful exercise of jurisdiction, we need
not explore the parameters of the new cause of action
IMG seeks to define.4 Moreover, we agree with the dis-
trict court that IMG has failed to state a claim for abuse
4
Our holding that the AAA is entitled to immunity applies to
Count I of IMG’s complaint. Count I seeks damages for tortious
actions including malicious prosecution, abuse of process and
“bad-faith arbitration,” a cause of action coined by IMG. Counts II
and III seek preliminary and permanent injunctive relief directed
at staying the arbitration and a declaratory judgment specifying
that the arbitration is improper and defining the rights of the
parties under the insurance contract. The AAA is obviously not
a real party in interest to Counts II and III, and therefore the
district court properly dismissed those claims against the AAA
under Rule 17(a). IMG could obtain all of the relief it seeks in
Counts II and III in its claims against the Non-AAA Defendants.
16 No. 01-3270
of process, malicious prosecution and bad-faith arbitra-
tion (a claim that IMG concedes has never been recognized
by any court). See International Med. Group, Inc. v. Ameri-
can Arbitration Ass’n, 149 F. Supp. 2d 615, 629-32 (N.D. Ill.
2001). For the claim of malicious prosecution, a plain-
tiff must show, among other things, that the prosecution
terminated in the plaintiff’s favor. Hammond Lead Prods.,
Inc. v. American Cyanamid Co., 570 F.2d 668, 673 (7th Cir.
1977). IMG cannot show that the arbitration terminated
in its favor and thus the arbitration may not serve as
the basis of a malicious prosecution claim. Similarly, to
make out a claim for abuse of process, IMG must show
“a wilful act in the use of the process not proper in the
regular conduct of the proceedings.” Groen v. Elkins, 551
N.E.2d 876, 878 (Ind. Ct. App. 1990). IMG’s pleadings
reveal that Ogdon, not the AAA, initiated the arbitration
process and that the AAA did nothing more than docket
a properly filed demand for arbitration. We have already
established that only the courts may decide issues of
arbitrability and so the AAA did not abuse the process
when it declined IMG’s invitation to determine that the
arbitration should not go forward. In sum, the AAA nei-
ther initiated nor caused to be initiated any process at all,
and thus cannot be held liable for abuse of process. Inter-
national Med. Group, 149 F. Supp. 2d at 632. Bad-faith
arbitration is the name coined by IMG for the new cause
of action it asks us to recognize and define. As we ex-
plained above, however, the AAA enjoys immunity from
suit in these circumstances and we thus decline to recog-
nize or define this new action. We therefore affirm the
district court’s dismissal of all claims against the AAA
and Brown.
B.
That brings us to the claims against the Non-AAA
Defendants. The district court dismissed these claims
No. 01-3270 17
because it lacked personal jurisdiction over these defen-
dants. The Non-AAA Defendants are Ogdon, his lawyers
Piloto and Rodriguez, and their law firm Rodriguez &
Machado, P.A. The question of whether the court had
personal jurisdiction over Ogdon’s lawyers and their law
firm is not a close call and we summarily affirm the dis-
trict court’s finding that an exercise of personal jurisdic-
tion over the lawyers and law firm does not comport
with due process. Rodriguez mailed a single letter to IMG
in Indiana, informing the company that Ogdon intended
to submit his claim to arbitration if IMG did not cover it.
Piloto had a few more contacts with the state of Indi-
ana. She copied IMG on correspondence with the AAA in
connection with the arbitration. She also filed a complaint
for Ogdon with the Indiana Department of Insurance. As
the district court pointed out, all of these actions were
at most tangentially related to the arbitration that is
the subject of the current dispute and are insufficient
to establish personal jurisdiction over Piloto. The law
firm acted only through Piloto and Rodriguez and these
few contacts are similarly insufficient to establish per-
sonal jurisdiction over the law firm. We affirm the dismiss-
al of the claims against Ogdon’s lawyers and their law
firm for lack of personal jurisdiction.
The issue of personal jurisdiction over Ogdon in Indi-
ana is somewhat of a closer call. Ogdon’s contacts with the
State of Indiana are more extensive than any of the other
Non-AAA Defendants. The actions of Ogdon’s attorneys
on his behalf in Indiana are attributable to Ogdon for
the purposes of personal jurisdiction analysis. As we
have already discussed, those contacts alone are insuffi-
cient to subject the attorneys or Ogdon to personal juris-
diction in Indiana. Ogdon was never physically present
in Indiana. As the district court noted, his contacts with
Indiana were due to Sirius’s selection of IMG as plan ad-
ministrator of the insurance policy. IMG underwrote the
18 No. 01-3270
policy and Ogdon communicated with IMG in Indiana
when he submitted claims for coverage and when he re-
quested that his policy be cancelled. Ogdon purchased the
policy when he was a resident of Canada, and the med-
ical care for which he sought coverage was rendered in
Florida.
We review dismissals for lack of personal jurisdiction
de novo. Central States, Southeast & Southwest Areas
Pension Fund v. Reimer Express World Corp., 230 F.3d 934,
939 (7th Cir. 2000), cert. denied, 532 U.S. 943 (2001). To
determine whether personal jurisdiction exists, we look
first to Indiana’s long-arm statute. Wallace v. Herron,
778 F.2d 391, 393 (7th Cir. 1985), cert. denied, 475 U.S.
1122 (1986). Indiana’s statute requires a two-prong analy-
sis. Anthem Ins. Cos., Inc. v. Tenet Healthcare Corp., 730
N.E.2d 1227, 1232 (Ind. 2000); Indiana Trial Rule 4.4(A).
First, the court must determine whether the defendant’s
contacts with Indiana come within the statute’s “enumer-
ated act” scheme. If they do, the court must also deter-
mine whether the defendant’s contacts with the State
satisfy federal due process concerns. Anthem Ins., 730
N.E.2d at 1232. Ogdon concedes that his contacts with
Indiana satisfy the first prong of the Indiana analysis,
and we therefore focus on whether his contacts with Indi-
ana are sufficient for due process purposes.
In order for personal jurisdiction to be proper, a defen-
dant must have established minimum contacts with the
forum state. Central States, 230 F.3d at 934 (citing Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 474-76 (1985)). The
crucial inquiry is whether the defendant’s contacts with
the state are such that he should reasonably anticipate
being haled into court there. Burger King, 471 U.S. at 474;
Central States, 230 F.3d at 943. The defendant must have
purposefully availed himself of the privilege of conducting
activities in the forum state, invoking the benefits and
protections of its laws. Burger King, 471 U.S. at 474-75;
No. 01-3270 19
Central States, 230 F.3d at 943. Once minimum contacts
have been shown, we must examine other factors, such as
the forum’s interest in adjudicating the dispute and the
burden on the defendant of appearing in the forum, in order
to determine whether the exercise of personal jurisdic-
tion satisfies traditional notions of fair play and substan-
tial justice. Burger King, 471 U.S. at 476-77; Central States,
230 F.3d at 943.
A defendant’s contacts with a forum state may be related
or unrelated to the facts forming the basis for the lawsuit.
See Anthem Ins., 730 N.E.2d at 1234. Contacts related
to the subject matter of the lawsuit may give rise to spe-
cific personal jurisdiction, that is, jurisdiction over the per-
son for a case arising from those contacts. Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414
(1984); Anthem Ins., 730 N.E.2d at 1234. When the con-
tacts with the forum state are unrelated to the subject
matter of the lawsuit, general personal jurisdiction may
be established if the defendant’s contacts are so contin-
uous and systematic that the defendant could reasonably
foresee being haled into court in that state for any matter.
Helicopteros, 466 U.S. at 414-15; Anthem Ins., 730 N.E.2d
at 1234. IMG’s brief does not specify whether it believes
the court has specific or general personal jurisdiction
over Ogdon and we will therefore consider both avenues
in our analysis.
All three counts of the complaint relate solely to the
arbitration. Count I seeks damages for malicious prosecu-
tion, abuse of process and bad-faith arbitration, as we
discuss above. Count II seeks injunctive relief directed at
staying the arbitration proceedings. Count III seeks
declaratory relief, again related to the arbitration. Yet
Ogdon had very limited contacts with the State of Indi-
ana in relation to the arbitration. On January 28, 2000,
Ogdon’s attorneys sent a letter to IMG in Indiana threaten-
ing to pursue arbitration if IMG did not immediately pay
20 No. 01-3270
Ogdon’s claims. Ogdon’s attorneys served notice of the
demand for arbitration on Sirius’s New York counsel as
identified in the insurance policy. Only after IMG insisted
that further notices be sent to it in Indiana did the AAA
send arbitration-related correspondence to IMG in Indi-
ana. Indeed, the only other contacts Ogdon had with IMG
in Indiana related to the arbitration were two letters
Piloto sent to the AAA, with courtesy copies sent to IMG.
Ogdon could not have reasonably anticipated being haled
into court in Indiana of the basis of these three letters.
Moreover, two of the letters were sent to Indiana only after
IMG requested that correspondence be directed there,
leading us to conclude that an exercise of specific personal
jurisdiction over Ogdon would not comport with substan-
tial justice and fair play.
We turn then to the question of whether Ogdon’s con-
tacts with Indiana were of such a continuous and system-
atic nature as to subject him to general personal jurisdic-
tion in that State. Ogdon sought insurance with Sirius,
a foreign corporation having a registered agent in New
York. Sirius selected IMG as its plan administrator, and
as the district court pointed out, all of Ogdon’s contacts
with Indiana occurred as a result of Sirius’s selection of
IMG. Ogdon’s Florida insurance agent submitted his ap-
plication for insurance with Sirius to IMG. Ogdon submit-
ted his medical bills for payment to IMG, and when IMG
declined to pay, Ogdon’s attorneys sent a letter to IMG
demanding payment and threatening arbitration. Ogdon
also filed a complaint with the Indiana Department of
Insurance, and requested cancellation of his policy and a
refund of premium through IMG. As we detailed above,
Ogdon’s attorneys also sent copies of two letters addressed
to the AAA to IMG’s attorney in Indiana.
These contacts with the State of Indiana are too attenu-
ated to establish general personal jurisdiction over Ogdon
in Indiana. As the district court noted, all of the contacts
No. 01-3270 21
are due to Sirius’s selection of IMG as plan administra-
tor. Recall that to establish general personal jurisdiction,
a defendant’s contacts with a forum must be so contin-
uous and systematic that the defendant could reasonably
foresee being haled into court there on any matter. We
also agree with the district court that Indiana’s connec-
tion to the subject matter of this lawsuit is at best ten-
uous. Ogdon did not purposefully avail himself of the
privileges and protections of Indiana law; rather Sirius
purposefully involved IMG in the transaction that ulti-
mately led to the lawsuit. Ogdon could not reasonably
anticipate being haled into court in Indiana to defend
a lawsuit based on these relatively few attenuated con-
tacts with the State. See Wallace, 778 F.2d at 394-95;
Anthem Ins., 730 N.E.2d at 1234-35 (contacts must be
substantial, continuous and systematic to sustain gen-
eral personal jurisdiction); Hotmix & Bituminous Equip.,
Inc. v. Hardrock Equip. Corp., 719 N.E.2d 824, 830 (Ind.
Ct. App. 1999) (where nonresident who had never been in
Indiana engaged in numerous phone calls, letters and fax
transmissions with Indiana regarding property located
in another state, contacts insufficient to confer personal
jurisdiction). We therefore affirm the district court’s dis-
missal of all claims against Ogdon for lack of personal
jurisdiction.
III.
For the reasons stated above, we affirm the dismissal
of all remaining claims against both the AAA Defendants
and the Non-AAA Defendants.
AFFIRMED.
22 No. 01-3270
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-3-02