Burstein v. State Bar of California

• Decision Date: 21 October 1981
• Docket Number: No. 80-4017,80-4017
• Citation: 659 F.2d 670
• Parties: Carole Hyman BURSTEIN, Plaintiff-Appellant, v. The STATE BAR OF CALIFORNIA, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 670

659 F.2d 670

Carole Hyman BURSTEIN, Plaintiff-Appellant, v. The STATE BAR OF CALIFORNIA, Defendant-Appellee.

No. 80-4017

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Oct. 21, 1981.

Carole Hyman Burstein, pro se.

Robert M. Sweet, Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before AINSWORTH, REAVLEY and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

This is an appeal of a dismissal for lack of personal jurisdiction over the defendant. Plaintiff-Appellant Carole Hyman Burstein brought suit in federal district court in Louisiana against the State Bar of California (the California Bar) alleging breach of contract and negligence, and a deprivation of due process and the equal protection of the laws giving rise to liability under 42 U.S.C. § 1983, all in connection with the grading of her bar examination. Jurisdiction was claimed under 28 U.S.C. § 1332 as to the breach of contract and negligence claims and under 28 U.S.C. § 1343(3) as to the § 1983 claim. Because we agree with the district court that the California Bar does not have contacts with Louisiana sufficient to support the exercise of personal jurisdiction by the district court in this case, we affirm the dismissal.

Burstein, a Louisiana resident licensed to practice law in Louisiana, took the California bar examination in San Francisco in July, 1979. On November 17, 1979, she was notified that she had failed both the multistate and the essay portions of the exam. ¹ Believing there to have been an error, Burstein wrote to the California Bar on January 8, 1980, requesting that they recheck her scores. On January 16, 1980, the Executive Director notified her that the exam had been checked and that no scoring errors had been found. Burstein then wrote two letters, the first apparently having gone unanswered, to the Chief Justice of the California Supreme Court, asking for assistance. She received a reply letter from the executive assistant of the Chief Justice informing her that the justices do not intervene in the grading of specific exams and that she should direct her comments to the Committee of Bar Examiners of the State Bar.

On June 27, 1980, Burstein filed suit in the United States District Court for the Eastern District of Louisiana, naming the California Bar and the Educational Testing Service, Inc. (ETS) as defendants. Following a series of motions, a hearing was held on September 17, 1980, at which time the court dismissed ETS from the suit on a motion by Burstein, granted leave to file an amended complaint and granted permission to propound interrogatories pertaining to the issues of personal and subject matter jurisdiction. Burstein's amended complaint, filed on September 25, 1980, alleged a deprivation of her civil rights cognizable under § 1983, breach of contract and negligence, in connection with the grading of her examination. Her claim focused on her belief that, having knowledge of the failing multistate score assigned to her by ETS, the essay graders assigned failing scores to her essay answers without reading them as they did the others, and thus wrongfully denied her admission to the California Bar. Process was served by mail under the Louisiana Long-Arm Statute, La.Rev.Stat.Ann. § 13:3201 (West). On October 27, 1980, the California Bar filed its answers and objections to Burstein's interrogatories along with a motion to dismiss the amended complaint. ² The court entered judgment for the California Bar on December 29, 1980, dismissing the case for lack of personal jurisdiction. Burstein v. State Bar of California, 503 F.Supp. 227 (E.D.La.1980). Burstein appeals, claiming that the court erred in concluding that it lacked jurisdiction over the California Bar; in denying more extensive discovery; and in declining to rule on the other grounds for dismissal raised by the California Bar.

I. The Personal Jurisdiction Issue.

The primary issue in this case is whether the federal district court in Louisiana has jurisdiction over the California Bar in a diversity or civil rights action, service of process having been effected by means of the Louisiana Long-Arm Statute. Because the Louisiana Long-Arm Statute has been interpreted to extend to the limits due process allows, see Standard Fittings Co. v. Sapag, S.A., 625 F.2d 630, 638 (5th Cir. 1980), cert. denied, 451 U.S. 910, 101 S.Ct. 1981, 68 L.Ed.2d 299 (1981), both parties have framed their arguments with reference to the "minimum contacts" test set out in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and in subsequent cases refining the International Shoe test. We agree that the "minimum contacts" test of International Shoe is the proper test of the court's personal jurisdiction both as to the diversity actions and the civil rights action, and review the judgment accordingly. ³

As stated in International Shoe (D)ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice."

326 U.S. at 316, 66 S.Ct. at 158. Since this pronouncement in International Shoe, the Supreme Court has given additional guidance as to the kinds of contacts which meet this test, but has also made it clear that "(l)ike any standard that requires a determination of 'reasonableness,' the 'minimum contacts' test of International Shoe is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite 'affiliating circumstances' are present." Kulko v. Superior Court of California, 436 U.S. 84, 92, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132 (1978). Weighing the facts of this case, we find that the " 'quality and nature' of the (California Bar's) activity" are not "such that it is 'reasonable' and 'fair' to require (it) to conduct (its) defense" in Louisiana. Id.

In support of her claim that the district court in Louisiana has jurisdiction over the California Bar in this action, Burstein argues that on the basis of numbers alone personal jurisdiction should have been found. The numbers which she cites are the 89 people from law schools in Louisiana who applied for admission to the California Bar during the decade of the 1970's, sending checks and other items from Louisiana to California, and the approximately 53 members of the California Bar who live in Louisiana and are sent membership bills, registration forms for Bar meetings, the State Bar Journal and other literature in Louisiana. This court has stated, however, that "the number of the defendant's contacts with the forum state is not, of itself controlling." Product Promotions, Inc. v. Cousteau, 495 F.2d 483, 495 (5th Cir. 1974). "As important as the existence of some contacts with the forum is that those contacts support an inference that the nonresident defendant purposefully availed himself of the benefits of conducting business in the forum." Id. See Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958). We agree with the district court that the facts alleged by Burstein do not support a finding that the California Bar has purposefully availed itself of the benefits of conducting business in Louisiana as contemplated in Hanson and Cousteau. As the district court stated:

The State Bar of California does not avail itself of any Louisiana privileges or services. It does not solicit potential members in this or any state. Those who wish to sit for its examination take it upon themselves to apply to do so, and the State Bar, as a convenience to such persons, mails the necessary materials to the address given by these applicants. Similarly, the State Bar mails certain materials to members regardless of their place of residence rather than attempting to require that all its members maintain California mailing addresses.

Burstein, 503 F.Supp. at 229. Burstein herself admits that the California Bar did not actively seek Louisiana applicants. We reject Burstein's contention that the California Bar has purposefully availed itself of the benefits of conducting business in Louisiana by allowing persons to apply for admission to the California Bar from Louisiana or by its mailings to members who live in Louisiana. ⁴

Burstein argues that the Cousteau case is analogous to her case, and that her case is actually a stronger one for finding personal jurisdiction. We again agree with the district court, however, in concluding that Burstein fails to recognize significant distinctions between her case and the Cousteau case which are fatal to her claim that Cousteau compels recognition of personal jurisdiction in her case. In Cousteau, the plaintiff, a Texas resident, contracted to have defendant, a foreign corporation, make studies of its product and deliver a report and advertising photographs and film to plaintiff in Texas. This court reversed a dismissal by the district court in Texas for lack of jurisdiction over the defendant CEMA, where the essential locus of the contract on which the suit was based was Texas; essential portions of the defendant's performance were to take place in Texas; and enforcement and protection of the defendant's rights might foreseeably have depended on Texas laws. As the district court noted:

(The Cousteau court) found that Texas, the forum state, was the situs of the contract at issue; the plaintiff here could hardly suggest that Louisiana is the site of any alleged contract between her and the State Bar of California. Too, the Cousteau court found that there were contemplated by the contract "reasonably foreseeable consequences" in Texas; the plaintiff here could not be heard to suggest that there were any foreseeable consequences at all in Louisiana of any alleged contract...