Scherer v. Curators of University of Missouri

• Decision Date: 18 July 2001
• Docket Number: No. 01-2085-JWL.,01-2085-JWL.
• Citation: 152 F.Supp.2d 1278
• Parties: Thomas E. SCHERER, Plaintiff, v. The CURATORS OF THE UNIVERSITY OF MISSOURI AND LAW SCHOOL ADMISSION COUNCIL, Defendants.
• Court: U.S. District Court — District of Kansas

152 F.Supp.2d 1278

Thomas E. SCHERER, Plaintiff, v. The CURATORS OF THE UNIVERSITY OF MISSOURI AND LAW SCHOOL ADMISSION COUNCIL, Defendants.

No. 01-2085-JWL.

United States District Court, D. Kansas.

July 18, 2001.

Thomas E Scherer, Merriam, KS, pro se.

Daniel D. Crabtree, Stinson, Mag & Fizzell, P.C., Leawood, KS, Brian R. Markley, Stinson, Mag & Fizzell, P.C., Kansas City, MO, for UMKC School of Law, Law School Admission Council.

Katharine S. Bunn, University of Missouri, Columbia, MO, for Curators of the University of Missouri.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

In this civil rights action, plaintiff, appearing pro se, alleges that he was denied admission to the University of Missouri at Kansas City School of Law, that the school did not comply with its admission policy and that the school engaged in arbitrary and capricious admission standards and policies. This matter is presently before the court on defendant The Curators of the University of Missouri's motion to dismiss plaintiff's complaint, pursuant to Fed. R.Civ.P. 12(b)(2), for lack of personal jurisdiction (doc. # 21) and plaintiff's request for a preliminary injunction (doc. # 26). As set forth in more detail below, defendant's motion to dismiss is denied, but the court transfers plaintiff's case, along with his pending motion for a preliminary injunction, to the United States District Court for the Western District of Missouri pursuant to 28 U.S.C. § 1631.

I. Background

Plaintiff is a Kansas resident who applied for admission to the Law School at the University of Missouri at Kansas City, a public university located in the State of Missouri. In that regard, plaintiff mailed his application materials and sent various letters and electronic mail (e-mail) messages concerning his application to the Law School from his residence in Kansas. Plaintiff also visited the Law School on occasion to inquire about the status of his application. It is undisputed that no one from the Law School ever traveled to Kansas to communicate with plaintiff. It is further undisputed that no one from the Law School ever recruited plaintiff or otherwise encouraged him to apply for admission. In fact, the only "contacts" that the Law School had with the State of Kansas with respect to plaintiff consisted of responding to plaintiff's application for admission.

Specifically, on January 19, 2001, Jean Klosterman, the Director of Admissions for the Law School, sent an e-mail message to plaintiff at his home in Kansas advising plaintiff that his request to use a 1987 Law School Admission Test (LSAT) score was "brought before the Admissions Committee" and that the "use of the 14-year old LSAT score was not approved by the Committee." The e-mail further advised plaintiff that he would need to retake the LSAT before his application would be reviewed and considered for the Fall 2001 entering class. Plaintiff's complaint also references one telephone conversation that plaintiff had with Ms. Klosterman concerning admissions criteria. While plaintiff's complaint is silent on the issue, the court presumes that plaintiff was at his residence in Kansas during the phone conversation. Nothing in plaintiff's complaint or in the record reflects who initiated this phone call. Finally, on May 30, 2001, Matt Davis, Assistant Dean at the Law School, sent a letter to plaintiff at his home in Kansas advising plaintiff that he had been placed on the "Waiting List" for the Fall 2001 entering class.

The Law School's "general" contacts with the State of Kansas are also limited. It is undisputed, for example, that The Curators do not have an office in Kansas and do not have a registered agent for service of process in Kansas. By affidavit of defendant's General Counsel, it appears that the Law School "does make information about the Law School available to students at colleges and universities in the State of Kansas and does respond to inquiries from Kansas residents, but does not engage in mass mailings to all the college graduates living in Kansas." Plaintiff points to the Law School catalog as evidence that the school draws heavily from and reaches out to the metropolitan area, including Kansas, and that the school operates on a national basis, not just within the borders of Missouri. Specifically, plaintiff highlights the following passages from the Law School catalog, found in a section entitled "Message from the Dean":

Frankly, with more than 500 students (including J.D., LL.M. and "Flex" students), 4000-plus graduates throughout the Metroplex alone, and other alumni and alumnae spread from D.C. to California and Alaska to Florida, there should be little wonder that we are widely disbursed, but even more widely connected.

* * * * * *

We start with the fact that we are one of the few public law schools located in the hub-city of a metropolitan region where no other law schools exist.

* * * * * *

Not surprisingly, it is from here-across this Metroplex-that our laws, commerce, finances, and social, political and civic transactions will increasingly affect the lives of people across throughout [sic] the Metroplex, The State, and the Nation.

Plaintiff also points out references in the catalog to "virtual offices" and highlights the Law School's website as evidence that the school operates beyond the Missouri state lines. Finally, plaintiff contends (and the school does not dispute) that the school employs Kansas residents and admits students from a variety of states, including Kansas.

II. Discussion

Defendant argues that plaintiff's action must be dismissed for lack of personal jurisdiction. The party bringing the action bears the burden of establishing personal jurisdiction over the defendant. Kuenzle v. HTM Sport-Und Freizeitgerate AG, 102 F.3d 453, 456 (10th Cir.1996). When the motion is decided on the basis of affidavits and other written materials, however, the plaintiff need only make a prima facie showing, and all factual disputes are resolved in that party's favor. Id. Resolving all doubts in plaintiff's favor, the court concludes that plaintiff has not met his burden of making a prima facie showing that defendant is subject to the jurisdiction of this court.¹ Thus, the court will transfer plaintiff's case to the United States District Court for the Western District of Missouri pursuant to 28 U.S.C. § 1631. See Viernow v. Euripides Dev. Corp., 157 F.3d 785, 793 (10th Cir.1998) (where transferor court notes that it lacks personal jurisdiction, the proper course of action is to transfer pursuant to § 1631) (citing Ross v. Colorado Outward Bound School, Inc., 822 F.2d 1524, 1526-27 (10th Cir. 1987)).²

Before a federal court can exercise personal jurisdiction over a defendant in a federal question case such as this one, "the court must determine (1) whether the applicable statute potentially confers jurisdiction by authorizing service of process on the defendant and (2) whether the exercise of jurisdiction comports with due process." Peay v. BellSouth Med. Assistance Plan, 205 F.3d 1206, 1209 (10th Cir.2000). Neither of these two prongs is met in the instant case. First, the Tenth Circuit has held that 42 U.S.C. § 1983 does not provide for nationwide service of process. See McChan v. Perry, No. 00-2053, 2000 WL 1234844, at *1 (10th Cir. Aug.31, 2000). Second, as explained more fully below, plaintiff's evidence regarding defendant's contacts with Kansas is insufficient to permit the court to find that defendant purposefully availed itself of the privilege of conducting activities in Kansas and could reasonably anticipate being brought into court in this state.

The Due Process Clause permits the exercise of personal jurisdiction over a nonresident defendant so long as the defendant purposefully established "minimum contacts" with the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); accord Intercon, Inc. v. Bell Atlantic Internet Solutions, Inc., 205 F.3d 1244, 1247 (10th Cir.2000) (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). This standard may be met in two ways. First, a court may exercise specific jurisdiction if a defendant has "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." Intercon, 205 F.3d at 1247 (quoting Burger King Corp., 471 U.S. at 472, 105 S.Ct. 2174). Second, a court may exercise general jurisdiction if the defendant's contacts with the forum state, while unrelated to the alleged activities upon which the claims are based, are nonetheless "continuous and systematic." In re Application to Enforce Administrative Subpoenas Duces Tecum of S.E.C. v. Knowles, 87 F.3d 413, 418 (10th Cir.1996); see also Intercon, 205 F.3d at 1247 ("When a plaintiff's cause of action does not arise directly from a defendant's forum-related activities, the court may nonetheless maintain general personal jurisdiction over the defendant based on the defendant's business contacts with the forum state."). As set forth below, the court concludes that it has neither specific nor general jurisdiction over defendant. Accordingly, defendant's motion to dismiss is denied, but the court transfers plaintiff's case to the United States District Court for the Western District of Missouri.

1. General Jurisdiction

The court first addresses whether the assertion of general jurisdiction over defendant is warranted because of any contacts defendant has had with Kansas that are unrelated to plaintiff's cause of action. As discussed above, a nonresident defendant may be subject to a state's jurisdiction even when the alleged injury is not related to the defendant's contacts with the forum state as long as the unrelated contacts are continuous and systematic enough "that the defendant could reasonably anticipate being haled into court in that forum." Trierweiler v....