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Carlisle v. Beer

United States District Court, Sixth Circuit

December 20, 2013

WAYNE CARLISLE, et al., Plaintiffs,


DAVID L. BUNNING, District Judge.

Defendant Andrew Beer has moved to dismiss the complaint against him for lack of personal jurisdiction (Doc. # 155). Because Plaintiffs have not alleged facts sufficient to show that the Court can exercise personal jurisdiction over Mr. Beer, the claims against him will be dismissed without prejudice.


This case comes before the Court after a trip to the Supreme Court and back. See Arthur Andersen LLP v. Carlisle, 556 U.S. 624 (2009). The dispute stems from the June 1999 sale of a valuable construction equipment company. (Doc. # 1, at 8). After that sale, the Plaintiffs asked their accountants, Arthur Anderson LLP, to investigate methods of reducing tax liability. ( Id. ) As part of that process, Arthur Anderson introduced the Plaintiffs to Bricolage Capital, ( Id. ), a now-defunct financial services firm. Defendant Andrew Beer was a principal at Bricolage. ( Id. at 6).

The Plaintiffs eventually took part in a tax scheme that allowed Plaintiffs to acquire an interest in various partnerships while paying very little (or nothing). ( Id. at 8-9). When those partnership interests were disposed of, Plaintiffs could write off their interests as large tax losses, despite the insignificant cost of acquiring the interest in the first place. ( Id. ) As the Supreme Court noted, the tax shelter was simply "too good to be true." Carlisle, 556 U.S. at 626. The IRS ruled that the scheme was an illegal tax shelter, setting in motion a series of events that eventually led to the 2005 diversity suit, in which the Plaintiffs sought recovery against their former legal and financial advisers. ( Id. at 626-27).

After the Supreme Court's decision, Plaintiffs settled with most of the defendants on November 7, 2012. (Doc. # 134). When Defendant Beer filed this Motion, he was one of only two defendants remaining in the case. His contacts with both Plaintiffs and the state of Kentucky are virtually nonexistent: the Plaintiffs do not suggest-and the record does not show-that Plaintiffs directly transacted business with Defendant Beer.


Plaintiff bears the burden of showing that the Court has personal jurisdiction over each defendant. Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991). And "in the face of a properly supported motion for dismissal, the plaintiff may not stand on his pleadings but must, by affidavit or otherwise, set forth specific facts showing that the court has jurisdiction." Id. When the Court rules on a personal jurisdiction motion absent an evidentiary hearing, it must construe factual allegations in the light most favorable to the Plaintiff. CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir. 1996). "To defeat such a motion, a party in CompuServe's position need only make a prima facie showing of jurisdiction." Id. The question before the Court, then, is whether the Plaintiff has made a prima facie case such that the Court can exercise personal jurisdiction over the Defendant. To establish the prima facie case, the Plaintiff must show that jurisdiction is authorized by both (1) Kentucky law and (2) the Due Process Clause of the U.S. Constitution. Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 888 (6th Cir. 2002). Each condition must be satisfied, but Plaintiff has failed to show that either condition is met here.

A. The Due Process Clause prevents the Court from exercising jurisdiction over the Defendant.

"The Due Process Clause requires that the exercise of personal jurisdiction in each case comport with "traditional notions of fair play and substantial justice." Nationwide Mut. Ins. Co. v. Tryg Int'l Ins. Co., Ltd., 91 F.3d 790, 793 (6th Cir. 1996) (citing International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). The Supreme Court has recognized that a state has "general" jurisdiction over a defendant if that defendant "purposefully avails itself of the privilege of conducting activities within the forum State, " Hanson v. Denckla, 357 U.S. 235, 253 (1958). In their response to the Defendant's original motion to dismiss, Plaintiffs admit that the Defendant has not had such "pervasive" contacts with Kentucky to justify general jurisdiction, (Doc. # 52, at 9) and the Court sees nothing in the record to contradict this admission.

Alternatively, a Court may exercise specific jurisdiction over a defendant if the defendant "purposefully established minimum contacts in the forum state." Nationwide Mut. Ins. Co. v. Tryg Int'l Ins. Co., Ltd., 91 F.3d 790, 794 (6th Cir. 1996) (citations omitted). In their response to the Defendant's prior motion to dismiss, the Plaintiffs argued that the Court could exercise this special jurisdiction because the Defendant was part of a conspiracy. (Doc. # 52, at 9). Under this theory, the Defendant establishes the necessary minimum contacts with Kentucky through his relationship with fellow co-conspirators, at least one of whom had sufficient contacts with Kentucky to face the Court's jurisdiction.

The Sixth Circuit has never explicitly endorsed the conspiracy theory of jurisdiction. See Chrysler Corp. v. Fedders Corp. , 643 F.2d 1229, 1236 (6th Cir. 1981) ("This court has not addressed the question of whether the acts of a coconspirator, performed in the forum state in furtherance of the conspiracy, constitute sufficient minimum contacts to establish personal jurisdiction over an absent coconspirator who has no other contact with the forum.") The Court need neither accept nor reject Plaintiff's jurisdictional theories to rule in Defendant's favor, however. Because even if participation in a conspiracy was a basis for jurisdiction in the Sixth Circuit, Plaintiffs fail to show (or even try to show) that it applies here.

"The leading case on this conspiracy theory' of jurisdiction is Leasco Data Processing Equipment Corp. v. Maxwell, 319 F.Supp. 1256 (S.D.N.Y.1970)." Chrysler Corp., 643 F.2d at 1236. Under Leaseco, if a Plaintiff shows that 1) a conspiracy existed and 2) there is a "connection between the acts of the conspirator who was present in the jurisdiction and the conspirator who was absent, " then a court may exercise jurisdiction over the absent conspirator. Id. Defendant asserts that, because the claims against the present conspirators have been dismissed, there can be no connection to the absent conspirator-the Defendant-and thus the Court cannot exercise personal jurisdiction.

Defendant is correct. "A voluntary dismissal with prejudice operates as a final adjudication on the merits...." Warfield v. AlliedSignal TBS Holdings, Inc. , 267 F.3d 538, 542 (6th Cir. 2001). In the present matter, Plaintiffs agreed to a voluntary dismissal with prejudice of the claims against Arthur Andersen, LLC, Curtis, Mallet-Prevost, Colt & Mosle, LLP and William L. Bricker, Jr. (Doc. # 134). Consequently, under Warfield, ...

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