STATE OF MINNESOTA
IN COURT OF APPEALS
James A. Beltz, et al.,
Samuel D. Schwartz, et al,
Defendants and third-party plaintiffs,
David Bodner, et al.,
Filed November 23, 1999
Hennepin County District Court
File No. MC-98-6974
Terrence J. Fleming, Randy G. Gullickson, Lindquist & Vennum, P.L.L.P., 4200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellants)
Vincent D. Louwagie, Nathan P. Brenna, Fruth & Anthony, P.A., 3750 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondents)
Considered and decided by Harten, Presiding Judge, Amundson, Judge, and Holtan, Judge.[*]
Appellants, a New York corporation and its principals, challenge the district court's denial of their motion to dismiss respondents' claim for lack of personal jurisdiction. We affirm.
Respondents are a group of Minnesota investors who bought and sold stock in Incomnet, Inc., a California corporation. They allege that defendant Samuel Schwartz, president of Incomnet, devised a scheme to inflate artificially the price of Incomnet shares; respondents further allege that he was joined in this scheme by appellants, New York residents David Bodner and Murray Huberfeld, and Broad Capital Associates, Inc., a New York corporation of which they are the principals. Respondents brought this action against appellants, alleging violation of the Minnesota Consumer Fraud Act.
Mark Savage, a Minnesota broker who was in contact with Schwartz and
traded Incomnet stock, testified by deposition regarding his involvement with
Savage testified that, based on the record of his outgoing phone calls, he had made 164 calls to appellants and they had initiated "more than ten and less than fifty" calls to him, that he gave them his phone number, and that "Murray Huberfeld gave me his home phone number, because he had something to talk to me about that was important."
Savage also testified that when he had a large block of Incomnet stock to sell because one of his clients had too much on margin, Schwartz told him to get in touch with appellants as potential buyers. Appellants then purchased 50,000 shares of Incomnet stock, in connection with which Savage testified that the transaction was done through Nate Newman and his company, Equity Securities, located in the IDS building in Minneapolis, and that Savage had "set Nate Newman up with the Broad Capital people, David and Murray [i.e., appellants]." Savage testified that: (1) he had conversed with appellants about whether they were buying or selling Incomnet stock "lots of times;" (2) appellants did not tell him in the summer of 1995 that "they had sold millions of dollars worth of Incomnet stock in March and April of 1995;" and (3) if he had known appellants were involved in sales of Incomnet stock he would not have recommended that his clients buy Incomnet stock. He testified further that appellants faxed him an article on Incomnet, that David Bodner asked him to go from Minnesota to a trade show in California, and that he had gone to New York to meet with Bodner and Huberfeld.
The district court denied appellants' motion to dismiss the action for lack of personal jurisdiction. This appeal followed.
[An] appeal from an order denying a pretrial motion to dismiss for lack of personal jurisdiction is properly before this court because such orders are constitutionally appealable as of right.
When a defendant challenges personal jurisdiction at the pretrial stage, the plaintiff has the burden of proving a prima facie case supporting jurisdiction. Additionally, the plaintiff's allegations and supporting evidence must be taken as true even though a defendant may dispute contacts alleged by the plaintiff.
* * * *
The [long arm] statute extends the jurisdiction of Minnesota courts to the maximum limits consistent with due process. * * * [I]n doubtful cases, doubts should be resolved in favor of retention of jurisdiction.
S.B. Schmidt Paper Co. v. A to Z Paper Co., 452 N.W.2d 485, 487 (Minn. App. 1990) (citations and quotation omitted).
Two Minnesota cases address the question of personal jurisdiction in the context of securities fraud. Both Vikse v. Flaby, 316 N.W.2d 276 (Minn. 1982), and Kopperud v. Agers, 312 N.W.2d 443 (Minn. 1981), address jurisdiction over one Shelley Richey, who allegedly
committed tortious fraud in Minnesota by failing to disclose [to Minnesota investors in Thunderbird, an Arizona corporation] that [Thunderbird's] mortgaged real estate was inadequate security for the notes [given in exchange for loans made by the Minnesota investors to Thunderbird] when he had special knowledge of that fact.
Kopperud, 312 N.W.2d at 445. Richey's activities occurred in Arizona; he had no contact with Minnesota other than that giving rise to the lawsuit. Id. Minnesota was held to have jurisdiction because Richey was a shareholder, director, officer and general counsel of Thunderbird; his activities were directed toward attaining a commercial benefit in Minnesota; he had met with the broker who handled the Minnesotans' investments; he corresponded with Minnesota attorneys regarding treatment of Thunderbird notes and mortgages.
Richey purposefully availed himself of this state to carry out a scheme to defraud investors. Although his direct contacts with this state were limited, he was instrumental in setting in motion the fraudulent scheme and in keeping it going. The cause of action arises directly out of the fraudulent transactions. Minnesota has an obvious interest in providing a forum since Minnesotans were defrauded. * * * [P]laintiffs have made a prima facie showing of sufficient Minnesota activities to satisfy due process.
Id. at 446-47.
Vikse further addressed
[w]hether the Minnesota long-arm statute and the United States Constitution permit Minnesota courts to exercise personal jurisdiction over a nonresident individual who was a stockholder, officer, director, and attorney for an Arizona corporation, where the corporation and the individual commit fraudulent acts in Arizona that cause damage in Minnesota.
Vikse, 316 N.W.2d at 280. The trial court had found that Richey
deliberately, and with wrongful purpose, set in motion and perpetuated a course of events, the inevitable effect of which was to harm Minnesotans in general and the plaintiffs in particular.
Id. at 281.
Vikse invoked Minn. Stat. § 543.19, subd. 1(d) (1980), extending jurisdiction over a defendant who "commits any act outside Minnesota causing injury or property damage in Minnesota," subject to three exceptions: (1) Minnesota having "no substantial interest in providing a forum;" (2) jurisdiction violating "fairness and substantial justice," or (3) a cause of action in defamation or privacy.
Richey argued that he came within the second exception. The supreme court rejected the argument, labeled the second exception "a codification of the `minimum contacts' test" of International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S. Ct. 154 (1945), and cited the five factors of that test:
(1) The quantity of the contacts with the forum state,
(2) The nature and quality of the contacts,
(3) The source and connection of the cause of action with these contacts,
(4) The interest of the state providing a forum,
(5) The convenience of the parties.
Vikse, 316 N.W.2d at 282. The first three factors are primary. Id. Appellants, like Richey, do not come within the exceptions.
As to the first factor, Richey was held to have a sufficient quantity of contacts because he was "directly or indirectly" involved in transactions with Minnesota residents, corresponded with attorneys and others in Minnesota, and had in his possession and control the satisfactions signed by Minnesota residents. Id.; see also Marquette Nat'l Bank v. Norris, 270 N.W.2d 290, 295 (Minn. 1978) (finding jurisdiction over a defendant who had never been to Minnesota but who guaranteed a Minnesota loan to a Minnesota resident because "where the cause of action arises directly out of defendant's contact with the state * * * even one single, isolated transaction" can justify exercising personal jurisdiction). Given the extent of their telephone contact with a Minnesota broker and their purchase of 50,000 shares of stock through that broker, appellants had sufficient contacts in Minnesota.
The second factor requires examination of the potential effect of a contract in the state. Vikse, 316 N.W.2d at 283. If "a contract incurs the benefits and protections of the state's laws for the defendant, the assertion of jurisdiction may be proper." Id. at 282. Here, appellants could have availed themselves of Minnesota law in relation to their transactions with a Minnesota broker.
The third factor is also met. The source and connection of respondents' cause of action is based on appellants' contacts with the broker of Incomnet stock in Minnesota.
As to the fourth factor, Minnesota has an interest in providing a forum because Minnesota citizens have allegedly been defrauded.
As to the last factor, while it may not be convenient for appellants to come to Minnesota, it would be more inconvenient for all the respondents to travel elsewhere. Fairness and substantial justice are not violated by Minnesota's exercise of jurisdiction over them.
Appellants rely on S.B. Schmidt and on Walker Management v. FHC Enters., 446 N.W.2d 913 (Minn. App. 1989) (both reversing the denial of motions to dismiss for lack of personal jurisdiction brought by out-of-state purchasers of, respectively, goods and services from Minnesotans), review denied (Minn. Dec. 15, 1989). Both cases hold that telephone contacts are not sufficient for personal jurisdiction. See S.B. Schmidt, 452 N.W.2d at 488; Walker, 446 N.W.2d at 915. Here, however, telephone contact was not the only contact. Appellants purchased 50,000 shares through a Minnesota broker, an act which could itself support jurisdiction. See generally Vikse, 316 N.W.2d at 276; Kopperud, 312 N.W.2d at 443. Moreover, both S.B. Schmidt and Walker are distinguishable.
In S.B. Schmidt, there was no connection between the parties' contract and the state; the allegedly non-conforming goods were shipped not from Minnesota but from Mexico. Schmidt, 452 N.W.2d at 489. Minnesota was therefore an inconvenient forum because questions as to the quality of the goods would require resolution elsewhere. Id.
In Walker, the defendant was found not to have "purposefully avail[ed] itself of Minnesota law" because "each and every significant element in the formation of the agreement between [the parties] (presentation, negotiation, and execution) occurred outside Minnesota" and "all of [the plaintiff's] services [to the defendant] were to be performed in the Chicago area." Walker, 446 N.W.2d at 915. Minnesota was found to have no significant interest in providing a forum for two reasons: first, "all of [the plaintiff's] efforts were directed, not to Minnesota residents, but to residents in and around the Chicago area" and second, "the lawsuit brought by [the defendant] against [the plaintiff] is still pending in Cook County" so that forum was available for the plaintiff to file a counterclaim and litigate. Id. at 916. Here, there is no indication that respondents can pursue their claims against appellants anywhere other than in Minnesota.
Finally, if there were doubt in this case, it "should be resolved in favor of retention of jurisdiction." Schmidt, 452 N.W.2d at 487. We affirm the district court conclusion that Minnesota has jurisdiction over appellants.
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.