Nimmer v. Giga Entertainment Media
905 N.W.2d 523
Neb.2018Background
- Nimmer, a Nebraska-licensed attorney, provided legal services to Digital Broadcasting Corporation (DBC) and affiliates beginning in 1995 and alleges continued representation of the successor corporation Giga Entertainment Media, Inc. (GEM) from GEM’s 2012 formation until November 2015.
- DBC merged with GEM in 2012 (GEM the surviving corporation); DBC shareholders received GEM shares. GEM is a Nevada corporation with principal place of business in New York and no offices, property, or employees in Nebraska.
- After Nimmer withdrew as counsel in 2015, he demanded cash fees and repurchase of DBC shares; negotiations failed and Nimmer sued GEM pro se for breach of contract and later added tortious conversion and deceptive trade practices claims.
- Nimmer relied on various contacts (fee agreements with Nebraska forum-selection language to DBC, billing to DBC/GEM, emails from GEM officers to shareholders, and GEM counsel’s proposed stipulation referencing Nebraska) to argue personal jurisdiction over GEM.
- GEM moved to dismiss for lack of personal jurisdiction. The trial court granted dismissal (first with leave to amend, then with prejudice after a second motion). On appeal, the Nebraska Supreme Court affirmed dismissal but modified it to be without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nebraska has specific jurisdiction over GEM for tort claims (conversion, UDTPA) | Nimmer: GEM’s shareholder communications and alleged deceptive exchange were intentional acts aimed at and causing harm in Nebraska, satisfying Calder effects test | GEM: Generic shareholder communications and limited contacts do not target Nebraska residents; no purposeful availment | Held: No specific jurisdiction — generic mailings/emails and limited dealings insufficient to show acts uniquely or expressly aimed at Nebraska (Calder test not met) |
| Whether offering securities/activities under Neb. Rev. Stat. § 8-1112 confer jurisdiction | Nimmer: GEM’s securities-related conduct (share exchange) constitutes sufficient contacts | GEM: GEM is not registered or offering securities in Nebraska and has no targeted securities activities in Nebraska | Held: Not established — Nimmer did not show GEM registered or directly/offensively offered securities/services in Nebraska under § 8-1112 |
| Whether GEM’s retention/continued use of Nimmer (counsel) creates general or specific jurisdiction | Nimmer: Ongoing legal representation from his Nebraska office constituted continuous contacts sufficient for jurisdiction | GEM: No contract or meaningful operational contacts in Nebraska; occasional communications are insufficient | Held: No jurisdiction — contract alone or sporadic dealings do not show purposeful availment; alleged work for GEM lacks sufficient Nebraska ties or reasonable timeframe of contacts |
| Whether DBC’s (predecessor) contacts can be attributed to GEM for general jurisdiction (alter-ego/successor theory) and whether dismissal should be with prejudice | Nimmer: GEM is successor/continuation of DBC and DBC’s contacts should be ascribed to GEM; dismissal with prejudice appropriate after amendment | GEM: GEM is separate, has its own contacts (or lack thereof); proposed stipulations were not accepted | Held: No attribution of DBC’s contacts to GEM for jurisdictional purposes; court rejects extending successor/alter-ego contacts to establish jurisdiction here. Dismissal for lack of personal jurisdiction must be without prejudice (modified by court) |
Key Cases Cited
- Abdouch v. Lopez, 285 Neb. 718 (2013) (Calder effects test applied narrowly; mere incidental effects in forum insufficient for specific jurisdiction)
- RFD-TV v. WildOpenWest Finance, 288 Neb. 318 (2014) (contractual/communications contacts and limited business dealings insufficient for personal jurisdiction; dismissal for lack of jurisdiction should generally be without prejudice)
- Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) (contract alone does not automatically create minimum contacts; courts examine prior negotiations, contemplated consequences, terms, and course of dealing)
- Thompson Hine, LLP v. Taieb, 734 F.3d 1187 (D.C. Cir. 2013) (mere retention of forum-based counsel by nonresident, absent other deliberate forum contacts, does not establish minimum contacts)
- Clune v. Alimak AB, 233 F.3d 538 (8th Cir. 2000) (parent and subsidiary contacts may be aggregated where parent is effectively a shell and controls distribution — distinguished on facts)
- Johnson v. Woodcock, 444 F.3d 953 (8th Cir. 2006) (minimum contacts must exist at time cause arose, suit filed, or within a reasonable prior period; stale/attenuated contacts insufficient)
- Ashby v. State, 279 Neb. 509 (2010) (refused to extend conspirator/coconspirator liability to establish minimum contacts; jurisdiction requires specific acts by the defendant)