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Hylland v. Flaum

United States District Court, D. South Dakota, Southern Division

November 22, 2016

RICHARD HYLLAND, Plaintiff,
v.
RUSSELL FLAUM, Defendant.

          OPINION AND ORDER DENYING MOTION TO DISMISS AND MOTION TO TRANSFER VENUE

          ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE

         Richard Hylland sued Russell Flaum in South Dakota for alienating the affection of Richard's wife Traci Hylland.[1] Flaum moved to dismiss for lack of personal jurisdiction, arguing that he has never been to South Dakota and does not have the necessary minimum contacts with South Dakota. Because Flaum intentionally directed his conduct at South Dakota, and because the alleged effects of this conduct were suffered in South Dakota, this Court has personal jurisdiction over Flaum for the alleged alienation of affection that occurred while Traci was in South Dakota.

         I. Facts [2]

         The Hyllands married in South Dakota in 1985. Doc. 1-3 at ¶ 4; Doc. 14 at ¶ 2. They are South Dakota residents but have maintained a home in Indian Wells, California since 2009. Doc. 1-3 at ¶ 1; Doc. 10-1 at ¶ 5. Flaum, an Illinois resident who also maintains a home in Indian Wells, California, first met Traci at the Indian Wells Country Club in late 2014. Doc. 10-1 at ¶¶ 2-3, 6; Doc. 1-3 at ¶ 2.

         In February 2015, Flaum and Traci began playing tennis together at various country clubs in California. Doc. 10-1 at ¶ 7. They continued playing tennis in March and April of 2015, but also began going out to eat, attending tennis tournaments, and meeting up in either Palm Desert or Beverly Hills, California. Doc. 10-1 at ¶¶ 7-13. Apparently at Traci's request, Flaum met with Traci and her therapist on May 1, 2015, in Palm Desert. Doc. 10-1 at ¶ 14. The last time Flaum reportedly saw Traci in person was on May 6, 2015. Doc. 10-1 at ¶ 15.

         Traci returned to South Dakota on May 17, 2015, but Flaum continued to communicate with her. From May 17, 2015 to July 10, 2015, while Traci was in South Dakota, Flaum telephoned Traci nearly two hundred times and sent her over thirty-five emails. Doc. 14 at ¶¶ 3-4; Docs. 14-1, 14-2. Many of the emails were romantic in nature, with Flaum telling Traci that he loved her rather than his wife, that Traci should be "strong today in the knowledge that [her] future will be bright and full of love, " that he would make Traci happy "going forward, " and that he was pleased at being part of the "big step toward a happier and healthier existence" Traci had taken. Doc. 14-2 at 2, 5-6, 25-26, 33, 38. Flaum in other emails asked Traci to "Facetime"[3] and to send him pictures of herself. Doc. 14-2 at 10, 11, 14, 16, 35, 37. In still another email, Flaum encouraged Traci to fly to Illinois to meet him on a connecting flight. Doc. 14-5.

         In addition to the telephone calls and emails, Flaum sent some t-shirts bearing the letters "RF"[4] to Traci at her home in Sioux Falls, South Dakota. Doc. 14 at ¶ 5; Doc. 14-3 at 2-5. He also contacted Traci's friends in South Dakota, telephoning one friend twice and video chatting with Traci and three of her friends on another occasion. Doc. 14 at ¶¶ 6, 8; Doc. 14-4; Doc. 14-6.

         In July 2015, Richard mailed a package concerning Flaum's relationship with Traci to Flaum's wife and children and others in Illinois. Docs. 19, 19-1, 19-2. The package alleged that Traci and Flaum engaged in sexual intercourse in California and contained what appeared to be messages Flaum sent to Traci then discovered by Richard. Docs. 19-1, 19-2. The messages and package at the very least raise a question of whether actions alienating Traci's affection occurred in California in the first instance. At the hearing, the parties advised that the Hyllands remain married, although with marital difficulties, and that Flaum remains married to his wife.[5]

         Richard sued Flaum in South Dakota state court in March 2016. Doc. 1-3. He alleged in his complaint that he and Traci had lived together and "had affection toward each other" until "approximately the summer of 2015, when Defendant Flaum commenced to acquire an improper and undue influence over" Traci. Doc. 1-3 at ¶ 5. According to the complaint, Flaum alienated Traci's affection from Richard "sometime on or about the spring of 2015." Doc. 1-3 at ¶ 6. Flaum removed the case to this Court, Doc. 1, and moved to dismiss under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction or, in the alternative, to transfer the case to California under 28 U.S.C. § 1404(a), Doc. 10. At the hearing on Flaum's motion, Richard through counsel acknowledged that he claims that the alienation of affection tort was committed after Traci returned to South Dakota in mid-May of 2015 and that Richard is making no claim in this case that any of the conduct in California supports a cause of action or recovery here.

         II. Analysis

         A. Personal Jurisdiction

         The showing a plaintiff must make when the defendant contests personal jurisdiction under Rule 12(b)(2) depends on the stage of the case and the method the court employs to resolve the jurisdictional dispute. See K-V Pharm. Co. v. J. Uriach & CIA. S.A.. 648 F.3d 588, 591-92 (8th Cir. 2011); Dakota Indus.. Inc. v. Dakota Sportswear, Inc.. 946 F.2d 1384, 1387 (8th Cir. 1991). At trial or after an evidentiary hearing, the plaintiff must prove personal jurisdiction by a preponderance of the evidence. Creative Calling Sols.. Inc. v. LF Beauty Ltd., 799 F.3d 975, 979 (8th Cir. 2015); Epps v. Stewart Info. Servs. Corp.. 327 F.3d 642, 647 (8th Cir. 2003). But when, as here, the court limits its review of a Rule 12(b)(2) motion solely to affidavits and other written evidence, the plaintiff "need only make a prima facie showing of [personal] jurisdiction." Dakota Indus., 946 F.2d at 1387. "Although the evidentiary showing required at the prima facie stage is minimal, the showing must be tested, not by the pleadings alone, but by the affidavits and exhibits supporting or opposing the motion." K-V Pharm. Co., 648 F.3d at 592 (internal marks and citations omitted). This Court construes the evidence the parties submitted in the light most favorable to Hylland and resolves all factual disputes in his favor. Id.

         A federal court sitting in diversity may exercise jurisdiction over nonresident defendants only if both the forum state's long-arm statute and the Fourteenth Amendment's Due Process Clause are satisfied. Morris v. Barkbuster. Inc.. 923 F.2d 1277, 1280 (8th Cir. 1991). Because South Dakota's long-arm statute confers jurisdiction to the full extent permissible under the Due Process Clause, the question here is whether asserting personal jurisdiction over Flaum comports with due process. Bell Paper Box. Inc. v. U.S. Kids. Inc.. 22 F.3d 816, 818 (8th Cir. 1994) (applying South Dakota law).

         Personal jurisdiction under the Due Process Clause may be either general or specific. Goodyear Dunlop Tires Operations. S.A. v. Brown. 564 U.S. 915, 924-25 (2011). Courts with general jurisdiction over a defendant may hear "any and all claims" against the defendant, even if those claims are unrelated to the defendant's contacts with the forum state. Daimler AG v. Bauman, 134 S.Ct. 746, 754 (2014) (quoting Goodyear. 564 U.S. at 919). For general jurisdiction to exist, the defendant's contacts with the forum state must be "so 'continuous and systematic'" that the defendant is "essentially at home" there. Goodyear, 564 U.S. at 919 (quoting Int'l Shoe Co. v. Washington. 326 U.S. 310, 316 (1945)). Flaum's contacts with South Dakota fall far short of the sort of continuous and systematic presence necessary for general jurisdiction. Specific jurisdiction, by contrast, may be based on a defendant's solitary or irregular contact with the forum state. Daimler, 134 S.Ct. at 754. Unlike general jurisdiction, however, specific jurisdiction is limited to suits arising out of or relating to the defendant's contact with the forum state. Goodyear, 564 U.S. at 919.

         Courts may exercise specific jurisdiction over an out-of-state defendant if the defendant has "certain minimum contacts" with the state such that having to defend a lawsuit there "does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co., 326 U.S. at 316 (quotation omitted). These minimum contacts must be based on "some act by which the defendant purposefully avails" himself of the forum state "such that he should reasonably anticipate being haled into court there." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75 (1985) (quotations omitted). It is the defendant, rather than the plaintiff or a third party, who must establish the minimum contacts in the forum state. Walden v. Fiore, 134 S.Ct. 1115, 1122 (2014). Moreover, the defendant's contacts must be "with the forum State itself, not . . . with persons who reside there." Id.; see alsoId. at 1123 ("Due process requires that a defendant be haled into court in a forum State based on his own ...


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