Gerber v. Riordan

• Decision Date: 18 August 2011
• Docket Number: No. 09–3790.,09–3790.
• Parties: Scott D. GERBER, Plaintiff–Appellant,v.James C. RIORDAN and Seven Locks Press Corp., Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

649 F.3d 514

80 Fed.R.Serv.3d 627

Scott D. GERBER, Plaintiff–Appellant,

v.James C. RIORDAN and Seven Locks Press Corp., Defendants–Appellees.

No. 09–3790.

United States Court of Appeals, Sixth Circuit.

Aug. 18, 2011.

ON BRIEF: Timothy G. Pepper, Taft Stettinius & Hollister LLP, Dayton, Ohio, for Appellant.Before: DAUGHTREY, MOORE, and CLAY, Circuit Judges.CLAY, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. MOORE, J. (pp. 520–24), delivered a separate concurring opinion.

OPINION

CLAY, Circuit Judge.

Plaintiff Scott Gerber filed this diversity of citizenship action pursuant to 28 U.S.C. §§ 1291 and 1332 against Defendants James Riordan and Seven Locks Press Corp., alleging breach of contract and common law tort causes of action. The court below dismissed the action for lack of personal jurisdiction over Defendants. Plaintiff now appeals.

For the reasons stated below, we REVERSE the decision of the court below, and REMAND the case for further proceedings.

STATEMENT OF FACTS

I. Factual Background

This case arises out of a lawsuit filed by Plaintiff Scott Gerber (“Plaintiff”) against Defendants James Riordan (“Riordan”) and Seven Locks Press Corp. (“Seven Locks Press,” collectively “Defendants”), alleging breach of contract and common law tort causes of action.

Plaintiff is a faculty member at Ohio Northern University's Claude W. Pettit College of Law, and an Ohio resident. However, in contracting with Defendants for publication of his manuscript, Plaintiff listed his address as “4302 Chesapeake Avenue, Hampton, Virginia, 23669.” (R. 6–1 at 1.) Defendant Seven Locks Press is a corporation incorporated under Nevada law, doing business in California. Seven Locks Press' address is listed as “3100 W. Warner Avenue # 8, Santa Ana, California 92704.” ( Id.)

In June 2005, Plaintiff and Defendant Seven Locks Press entered into a contract (the “contract”) to publish Plaintiff's manuscript. Defendant Riordan, publisher of Seven Locks Press, acted as Seven Locks Press' agent in negotiating and entering into the contract with Plaintiff. The contract initially required publication of Plaintiff's manuscript within 120 days of the date of the contract, ( id. at 3), which Plaintiff alleges in his complaint was “on or about October 10, 2005.” (R. 6, Am. Compl. at 3.) The contract also required Plaintiff to pay Seven Locks Press a publication subsidy of $11,500.00. ( Id.) Plaintiff alleges that he paid Seven Locks Press the agreed upon subsidy in November 2005. ( Id.)

In November 2005, the parties amended the contract, and delayed the publication date to early February 2006. Plaintiff alleges that even after publication was delayed, Defendants failed to publish Plaintiff's manuscript in a timely fashion.

II. Procedural History

Plaintiff filed the instant action against Defendants on June 20, 2006 in the United States District Court for the Northern District of Ohio based on the parties' diversity of citizenship, and an amount in controversy exceeding $75,000.00. See 28 U.S.C. §§ 1291 and 1332. In his amended complaint, Plaintiff seeks relief for Defendants' breach of contract; interference with a contract and prospective advantage; defamation; intentional or reckless infliction of emotional distress; negligent infliction of emotional distress; misrepresentation; and fraud. After filing his complaint, but prior to receiving any responsive pleading from Defendants, Plaintiff filed an amended complaint; a motion to stay litigation in favor of mediation in Toledo, Ohio; and an application to the court for entry of default judgment against Defendants. Proceeding pro se, Defendants filed a motion to dismiss the amended complaint for lack of personal jurisdiction.

After directing Defendants to show cause why default judgment should not be entered against them for failure to secure an attorney to represent corporate Defendant Seven Locks Press as required by 28 U.S.C. § 1654, see also Bristol Petroleum Corp. v. Harris, 901 F.2d 165, 166 n. 1 (D.C.Cir.1990) (“a corporation ... [may] not appear pro se ”), the district court entered a default judgment against Defendants on October 16, 2006.

Subsequently, Defendants retained an attorney who entered a general appearance with the district court on Defendants' behalf. Through their attorney, Defendants made motions to stay the litigation pending arbitration, and to vacate the default judgment entered against them. The district court granted both of Defendants' motions on December 8, 2006. Defendants also filed an opposition to Plaintiff's motion for mediation in Toledo, Ohio.

The parties appeared at a case management conference with the district court on June 19, 2007. On June 21, 2007, the district court ordered that discovery in the case be completed by January 31, 2008; dispositive motions submitted by November 11, 2007; opposition to dispositive motions submitted by November 30, 2007; and replies submitted by December 15, 2007. The parties also consented to the magistrate judge's jurisdiction for all purposes, including the entry of judgment. This case was subsequently reassigned from the district judge to a magistrate judge. The court scheduled a settlement conference for February 25, 2008, and a jury trial before the magistrate judge for March 18, 2008, with voir dire set for March 17, 2008.

After the June 19, 2007 case management conference, Defendants made a motion for an extension of time until July 9, 2007 to file its Rule 26 discovery responses. Defendants subsequently withdrew this motion, and submitted their Rule 26 discovery responses on June 9, 2007.

The district court held an additional pretrial conference on June 17, 2007, which Defendants' counsel attended in person, and which Defendant Riordan attended by telephone. The district court also stayed litigation pending mediation as contemplated by the parties' contract.

After participating in the above-described proceedings, on April 1, 2009, Defendants filed a motion to dismiss for lack of personal jurisdiction, arguing that their contacts with Ohio were insufficient to support personal jurisdiction over them in that forum. The magistrate judge granted Defendants' motion on May 28, 2009, and dismissed the action for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2).

Plaintiff timely appealed.

DISCUSSION

I. Standard of Review

“We review de novo a district court's dismissal of a complaint for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure.” Bird v. Parsons, 289 F.3d 865, 871 (6th Cir.2002); see also Calphalon Corp. v. Rowlette, 228 F.3d 718, 721 (6th Cir.2000).

II. Analysis

“Personal jurisdiction can be either general or specific, depending upon the nature of the contacts that the defendant has with the forum state.” Id. at 873. This Court has explained the difference between these two types of jurisdiction as follows: “General jurisdiction is proper only where a defendant's contacts with the forum state are of such a continuous and systematic nature that the state may exercise personal jurisdiction over the defendant even if the action is unrelated to the defendant's contacts with the state.” Id. Specific jurisdiction, however, is proper only “in a suit arising out of or related to the defendant's contacts with the forum.” Id. at 874.

In this case, Plaintiff concedes that Defendants' contacts with Ohio are insufficient to support general jurisdiction in that forum. Ordinarily, in the absence of general jurisdiction, the only question before the Court is whether the district court had personal jurisdiction over Defendants based on specific jurisdiction. An exception to this rule occurs when a party fails to assert, or waives its general jurisdiction defense by, for example, entering a general appearance with the district court. See Calphalon, 228 F.3d at 721. It is with this exception that we deal in this case.

In a diversity case, such as the instant action, this Court uses a two part test to ascertain whether the district court has personal jurisdiction over a defendant. See, e.g., id. at 721; CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir.1996). “The exercise of personal jurisdiction is valid only if it meets both the state long-arm statute and constitutional due process requirements.” Calphalon, 228 F.3d at 721.

Ohio's long-arm statute states in relevant part:

A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a cause of action arising from the person's:

(1) Transacting any business in this state;

(2) Contracting to supply services or goods in this state;

(3) Causing tortious injury by an act or omission in this state;

...

(6) Causing tortious injury in this state to any person by an act outside this state committed with the purpose of injuring persons, when he might reasonably have expected that some person would be injured thereby in this state.

Ohio Rev.Code § 2307.382(A). Although we “have recognized that Ohio's long-arm statute is not coterminous with federal constitutional limits,” Bird, 289 F.3d at 871, our jurisprudence analyzing personal jurisdiction under Ohio law has nevertheless done so with reference to the limits of federal constitutional due process. See id. Specifically, this Court has “consistently focused on whether there are sufficient minimum contacts between the nonresident defendant and the forum state so as not to offend traditional notions of fair play and substantial justice.” Id. (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).

Under this Court's due process jurisprudence, “[s]pecific jurisdiction over [Defendants] is permissible only if their contacts with Ohio satisfy the three-part test that this [C]ourt established in Southern Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374, 381 (6th Cir.1968).” Id. at 874. As this Circuit has previously stated,

First, the defendant...