Taylor v. Phelan

• Decision Date: 27 August 1990
• Docket Number: No. 89-3012,89-3012
• Citation: 912 F.2d 429
• Parties: Michael TAYLOR and Brenda Taylor, in their own right and as parents and natural guardians of Michael Andrew Taylor, a minor, and as the surviving mother and father and surviving heirs at law and co-administrators of the Estate of Jessica Taylor, deceased, Plaintiffs-Appellants, v. Paula PHELAN, an individual and a member of the Kansas City, Missouri Police Department; Richard Berkely, Arthur D. Brookfield, II, Beverley Barker Nicks, John L. Williams, Michael B. Meade, and Larry Joiner, as individuals and as Members constituting the Kansas City, Missouri Board of Police Commissioners, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 429

912 F.2d 429

Michael TAYLOR and Brenda Taylor, in their own right and as parents and natural guardians of Michael Andrew Taylor, a minor, and as the surviving mother and father and surviving heirs at law and co-administrators of the Estate of Jessica Taylor, deceased, Plaintiffs-Appellants, v. Paula PHELAN, an individual and a member of the Kansas City Missouri Police Department; Richard Berkely, Arthur D Brookfield, II, Beverley Barker Nicks, John L. Williams Michael B. Meade, and Larry Joiner, as individuals and as Members constituting the Kansas City, Missouri Board of Police Commissioners, Defendants-Appellees.

No. 89-3012.

United States Court of Appeals Tenth Circuit.

Aug. 27, 1990.

Robert B. Van Cleave (Frank D. Menghini and Jeanne Gorman Rau, with him on the brief) McAnany, Van Cleave & Phillips, P.A., Kansas City, Kan., for plaintiffs-appellants.

J. Emmett Logan, Morrison, Hecker, Curtis, Kuder, & Parrish, Overland Park, Kan., for defendants-appellees.

Before McKAY and BARRETT, Circuit Judges, and KANE, ^* District Judge.

PER CURIAM.

This appeal is from a grant of summary judgment in favor of defendants, Ms. Paula Phelan, a detective of the Kansas City, Missouri, Police Department (Detective Phelan), and the Kansas City, Missouri, Board of Police Commissioners, as a Board and as individuals (Board), on the ground that the United States District Court for the District of Kansas did not have personal jurisdiction over the Missouri defendants. Plaintiffs argue on appeal that there were sufficient contacts between the defendants and the State of Kansas to support personal jurisdiction consistent with the dictates of due process. Because we hold that the plaintiffs have made the requisite prima facie showing necessary to establish personal jurisdiction, we reverse.

The facts we recite here are either agreed to by the parties or contained in evidence properly presented by the losing party in response to the motion for summary judgment. The latter are taken as true only for purposes of determining whether summary judgment should have been granted. On or about September 25, 1986, plaintiffs Michael and Brenda Taylor became aware that an individual named Michael Moore had sexually assaulted their daughter, Jessica Taylor. The assault had taken place in Kansas City, Missouri. After learning of the assault, the Taylors reported the incident to the appropriate law enforcement agency, the Kansas City, Missouri, Police Department.

The case was assigned to Detective Phelan, a member of the Sex Crimes Unit. During the course of the investigation, there were repeated telephone contacts between the Taylors in Kansas and Detective Phelan and other members of the Police Department in Missouri. As a result of interviews with Jessica and her parents, the police eventually determined that there was probable cause to issue a warrant for the arrest of Michael Moore.

On or about October 31, 1986, Detective Phelan, accompanied by Detective Wessler, who is not named in this suit, came to the Taylors' home in Kansas City, Kansas. During the visit, Detective Phelan assured Mrs. Taylor that everything was being done to investigate the matter and that a warrant would be issued for Moore's arrest. Detective Phelan also assured Mrs. Taylor that her family would be safe from harm. Mrs. Taylor has stated in an affidavit that, based on this assurance, neither she nor her husband took any precautionary measures for their safety or that of their children.

On November 7, 1986, Detective Wessler telephoned Michael Moore at Moore's Kansas home and informed him that a warrant had been issued for his arrest. Moore told Wessler that he would voluntarily surrender the next day, which he failed to do. There was no further contact between Detective Wessler or any other member of the police department and Moore. During the night of November 12, 1986, Moore broke into the Taylor's house, shot Michael Taylor in the head, injured Brenda Taylor, poured gasoline on Michael A. Taylor and his sister, Jessica, setting them afire, killing Jessica and severely injuring Michael A. Taylor. After his rampage, Moore committed suicide. He left behind a note in which he said "[i]f I'm going to get blamed for something, I want to make sure I did it."

The Taylors brought this personal injury, wrongful death and damage action against Detective Phelan, individually, and as a member of the Kansas City, Missouri, Police Department, and against the Board and its members individually, basing their federal claims on 42 U.S.C. Sec. 1983 and the state claims under the Kansas Tort Claims Act with jurisdiction based on diversity. ¹ Upon defendants' motion for judgment on the pleadings, the district court dismissed the claims for lack of personal jurisdiction over the defendants. (October Order). ²

This court reviews a district court's ruling on a jurisdictional question de novo. Ten Mile Indus. Park v. Western Plains Serv. Corp., 810 F.2d 1518, 1524 (10th Cir.1987). In conducting this review, we are guided by the following standard:

[t]he plaintiff bears the burden of establishing personal jurisdiction over the defendant. Prior to trial, however, when a motion to dismiss for lack of jurisdiction is decided on the basis of affidavits and other written materials, the plaintiff need only make a prima facie showing. The allegations in the complaint must be taken as true to the extent they are uncontroverted by the defendant's affidavits. If the parties present conflicting affidavits, all factual disputes are resolved in the plaintiff's favor, and the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party.

Behagen v. Amateur Basketball Ass'n, 744 F.2d 731, 733 (10th Cir.1984) (citations omitted), cert. denied 471 U.S. 1010, 105 S.Ct. 1879, 85 L.Ed.2d 171 (1985). Our task thus becomes to determine from the parties' affidavits and other written materials whether the plaintiffs have established a prima facie case of minimum contacts with the forum state by each defendant sufficient to justify jurisdiction. Rambo v. American S. Ins. Co., 839 F.2d 1415, 1417 (10th Cir.1988).

Whether a federal court has personal jurisdiction over a nonresident defendant in a diversity action is determined by the law of the forum state. Yarbrough v. Elmer Bunker & Assocs., 669 F.2d 614, 616 (10th Cir.1982); see also Fed.R.Civ.P. 4(e). The district court in a diversity action may not exercise personal jurisdiction unless it complies with both the forum state's long-arm statute and the Constitution. Equifax Servs., Inc. v. Hitz, 905 F.2d 1355, 1357 (10th Cir.1990). ³ A two-step analysis is therefore required: first, does the defendant's conduct fall within the scope of the relevant section of the long-arm statute; and second, does the exercise of personal jurisdiction comport with the requirements of due process? Volt Delta Resources, Inc. v. Devine, 740 P.2d 1089, 1093 (Kan.1987).

Application of the Kansas long-arm statute

Defendants argue that the Kansas long-arm statute does not apply to their activities. In finding otherwise, the district court relied on Ling v. Jan's Liquors, 237 Kan. 629, 703 P.2d 731 (1985). In Ling the Kansas Supreme Court upheld Kansas jurisdiction over a Missouri liquor vendor who had sold liquor to a minor. The intoxicated minor drove into Kansas and caused injury to the plaintiff in Kansas. The court held that "it is possible to bring suit in Kansas to recover damages for injuries occurring in this state which resulted from negligent conduct outside the state," concluding that an injury which occurs in Kansas as a result of a tortious act outside the state amounts to a "tortious act within the state," thus falling within subsection (2) of the long-arm statute. Id. at 734. See Kan.Stat.Ann. Sec. 60-308(b)(2) (1983 & Supp.1989).

The district court here, noting that Kansas interprets the term "tortious act" broadly, concluded that defendants' alleged negligence in Missouri resulted in plaintiffs' injuries in Kansas, thus bringing defendants' acts "squarely within the Kansas long-arm statute." October Order at 7. Because there is no indication of any retreat under Kansas law from the broad reading of the tortious act section of the state long-arm statute as put forth in Ling, see Volt Delta Resources, 740 P.2d at 1092; Ray v. Heilman, 660 F.Supp. 122, 123-24 (D.Kan.1987) (applying Kansas law), we conclude that the district court was correct in determining that the Kansas long-arm statute applies to the defendants' actions.

Constitutional requirements

Since we have concluded that service of process over the defendants is appropriate under the state's long-arm statute, we must now determine whether the exercise of such jurisdiction satisfies the requirements of due process. In finding that it does not, the district court relied on a test formulated by the Ninth Circuit in Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1287 (9th Cir.1977), and first cited by this court in Rambo v. American Southern Insurance Co., 839 F.2d 1415 (10th Cir.1988). As the Rambo court noted, the test is one for specific jurisdiction and provides that:

(1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws.

(2) The claim must be one which arises out of or results from the defendant's forum-related activities.

(3) Exercise of jurisdiction must be reasonable.

Id. at 1419 n. 6 (quoting Data Disc, 557 F.2d at 1287).

After applying this test, the district court concluded that the Taylors had failed to demonstrate that their claims arose out of or resulted from the defendants' forum related activities as required by the second prong of Data Disc. October Order at 9. In arriving at this result, ...