United States District Court, D. South Dakota, Southern Division
OPINION AND ORDER DENYING MOTION TO DISMISS AND
MOTION TO TRANSFER VENUE
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE
Hylland sued Russell Flaum in South Dakota for alienating the
affection of Richard's wife Traci Hylland. 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.
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
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.
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" 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.
addition to the telephone calls and emails, Flaum sent some
t-shirts bearing the letters "RF" 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.
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
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
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.
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).
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.
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