Pecoraro v. Sky Ranch for Boys, Inc.

Decision Date18 August 2003
Docket NumberNo. 03-1006.,03-1006.
Citation340 F.3d 558
PartiesGerald P. PECORARO, Appellant, v. SKY RANCH FOR BOYS, INC., a South Dakota Corporation; Sky Ranch Foundation, Inc., a South Dakota Corporation; Diocese of Rapid City, a South Dakota Corporation, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

James Polack, argued, Omaha, NE, for appellant.

William A. May, argued, Rapid City, SD (Heather M. Lammers, Rapid City, on the brief), for appellee Sky Ranch. (Jeffrey L. Viken and Kenneth R. Dewell, Rapid City, on the brief), for appellee Diocese of Rapid City, Inc.

Before BOWMAN, BEAM, and RILEY, Circuit Judges.

BEAM, Circuit Judge.

Gerald P. Pecoraro appeals the dismissal of his complaint for lack of personal jurisdiction and for improper venue. We reverse in part, affirm in part and remand.

I. BACKGROUND

Pecoraro was fourteen years old and a resident of Nebraska when, in 1965, his parents sent him to Sky Ranch for Boys, Inc. (Sky Ranch) in South Dakota. Father Donald Murray, now deceased, was the director of Sky Ranch at that time. Pecoraro alleges that Father Murray sexually assaulted him on three occasions in 1965 and 1966: twice at Sky Ranch in South Dakota and once in a hotel room in Chicago, Illinois.

At one point after the first assault, Father Murray, Pecoraro, and Pecoraro's father all spoke at a Sky Ranch fund-raiser in Omaha, Nebraska, but neither Pecoraro nor Father Murray said anything to Pecoraro's father about the incident. Pecoraro returned to Sky Ranch with Father Murray. After the third assault, Pecoraro and another boy approached one of their counselors at Sky Ranch and told the counselor that Father Murray had sexually assaulted them. Sky Ranch closed down shortly after the counselor reported Pecoraro's allegations to the Bishop of the Diocese of Rapid City (the Diocese), and Pecoraro returned to Nebraska.

Several months later Omaha police arrested Pecoraro while he was a passenger in a stolen vehicle. He was sent to the Nebraska State Training School (NSTS) in Kearney, Nebraska. Father Murray then contacted NSTS, informed officials there that Sky Ranch had re-opened, and requested custody of Pecoraro. NSTS agreed. Father Murray flew the Sky Ranch airplane to Kearney, picked up Pecoraro, stopped in Omaha for another fund-raising dinner, then took Pecoraro to a different ranch in Aladdin, Wyoming, for the summer. He later moved Pecoraro to a private residence in Belle Fourche, South Dakota, for about one year. Father Murray then tried to force Pecoraro to enlist in the Marine Corps, but Pecoraro refused and fled South Dakota.

Pecoraro filed this diversity action in the District of Nebraska in February 2002.1 He named Sky Ranch, the Sky Ranch Foundation, Inc. (the Foundation), and the Diocese, alleging that all three defendants were vicariously liable for Father Murray's conduct. The district court granted the defendants' motion to dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). Alternatively, the district court ruled that venue was improper. Pecoraro appeals.

II. DISCUSSION

To survive a motion to dismiss for lack of personal jurisdiction a plaintiff need only make a prima facie showing of personal jurisdiction over the defendant. Digi-Tel Holdings, Inc. v. Proteq Telecomm. (PTE), Ltd., 89 F.3d 519, 522 (8th Cir.1996). We review de novo whether the plaintiff has presented a prima facie case of personal jurisdiction, viewing the evidence in the light most favorable to the plaintiff and resolving all factual conflicts in the plaintiff's favor. Id. Jurisdiction over a non-resident defendant must satisfy the requirements of the forum state's long-arm statute and of due process. Id. Because Nebraska's long-arm statute has been construed to permit jurisdiction to the extent of constitutional limits, we are left mainly to decide whether the exercise of personal jurisdiction over the defendants in this case comports with due process. Oriental Trading Co. v. Firetti, 236 F.3d 938, 943 (8th Cir.2001) (discussing Nebraska Revised Statute § 25-536).

The principles of personal jurisdiction under the Due Process Clause are well established. Jurisdiction is appropriate only where a defendant has sufficient "minimum contacts" with the forum state that are more than random, fortuitous, or attenuated, such that summoning the defendant would not offend traditional notions of fair play and substantial justice. Digi-Tel, 89 F.3d at 522 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945); and Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). The central question is whether a defendant has purposefully availed itself of the privilege of conducting activities in the forum state and should, therefore, reasonably anticipate being haled into court there. Burger King, 471 U.S. at 475, 105 S.Ct. 2174; World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). Minimum contacts must exist either at the time the cause of action arose, the time the suit is filed, or within a reasonable period of time immediately prior to the filing of the lawsuit. Clune v. Alimak AB, 233 F.3d 538, 544 n. 8 (8th Cir.2000).

With these principles in mind, we look at five distinct factors: (1) the nature and quality of the defendant's contacts with the forum state; (2) the quantity of contacts; (3) the relationship between the cause of action and the contacts; (4) the forum state's interest in providing a forum for its residents; and (5) the convenience of the parties. Digi-Tel, 89 F.3d at 522-23. The first three factors are closely related and are of primary importance, while the last two factors are secondary. Id. at 523.

Considering these factors in conjunction with Nebraska's long-arm statute, we find that Pecoraro has made the requisite prima facie showing of minimum contacts between Nebraska, Sky Ranch, and the Foundation. Pecoraro alleges that Father Murray, acting in his capacity as director of Sky Ranch, fraudulently represented to the State of Nebraska that Sky Ranch had been closed for financial reasons (when, according to Pecoraro, it had actually been closed because of the allegations against Father Murray) and that he would take Pecoraro back to Sky Ranch. Pecoraro alleges that, instead, Father Murray entered Nebraska, flying Sky Ranch's airplane, for the purpose of kidnaping Pecoraro and taking him to Wyoming. Tortious conduct in...

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