1

United States Court of Appeals

Fifth Circuit

FILED

July 22, 2003

Charles R. Fulbruge III

Clerk

Revised July 25, 2003

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________

No. 02-40783

 

RELIGIOUS TECHNOLOGY CENTER, 

Plaintiff - Appellee,

v.

DELL LIEBREICH, Individually and

as personal representative of 

the Estate of Lisa McPherson,

Defendant - Appellant, 

THOMAS J. DANDAR; KENNAN G. DANDAR,

Appellants,

-------------------

consolidated with

No. 02-40786

-------------------

RELIGIOUS TECHNOLOGY CENTER,

Plaintiff - Appellant,

v.

DELL LIEBREICH, as personal

representative of the Estate

of Lisa McPherson,

Defendant - Appellee, 

-------------------

consolidated with

No. 02-40964

-------------------

RELIGIOUS TECHNOLOGY CENTER,
1RTC’s motion to file a supplemental memorandum of law is

granted. 

2All three of the appeals at bar stem from rulings entered

by the district court in the course of adjudicating the breach of

contract claim, and consequently, the issue of personal

jurisdiction is dispositive of all the issues presented to the

Court in this appeal. Consequently, we confine our analysis to

the question of personal jurisdiction. 

2

Plaintiff - Appellee,

v.

DELL LIEBREICH, as personal

representative of the Estate

of Lisa McPherson,

Defendant - Appellant.

 

Appeal from the United States District Court

for the Eastern District of Texas

Before KING, Chief Judge, DAVIS and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

This consolidated appeal arises from a breach of contract

suit instigated by Plaintiff-Appellee-Cross-Appellant Religious

Technologies Center (RTC) against the estate of Lisa McPherson

(the Estate).1 We find the district court lacked personal

jurisdiction over the Estate, and we herein vacate the judgment

of the district court.2 

I.

A. The Florida Wrongful Death Action

In 1997, the Estate of Lisa McPherson filed a wrongful death

action in state court in Tampa, Florida against various
3

corporations and individuals affiliated with the Church of

Scientology. Among those named in the complaint were the Church

of Scientology, Flag Service Organization, Inc. (a corporation

associated/affiliated with the Church of Scientology), and

several individual Scientologists. Upon being served with the

complaint, and ostensibly as a cost-saving measure, Defendant

Flag Service Organization (Flag) proposed to the Estate that they

enter into an agreement to limit the number of

Scientology-related corporate entities and individuals that would

be named in the suit. The Estate and Flag consequently entered

into a contract in which the Estate agreed to forego adding

certain enumerated corporate defendants, and Flag agreed to

forego encumbering its assets. 

In 1999, the Estate moved the Florida court to add David

Miscavige (the "worldwide ecclesiastical leader of Scientology")

to the list of named defendants in its wrongful death action. 

Miscavige is the Chairman of the Board of RTC, a Scientology

corporation, and while RTC was listed among the parties which the

Estate was contractually bound to exclude from its action, the

Estate sought to add Miscavige under the theory that it was not

contractually precluded from adding Miscavige in his personal

capacity. The Florida court was presented with the

defendant-limiting contract between the Estate and Flag, and

entered an interlocutory ruling that the contract did not

prohibit the Estate from adding Miscavige as a defendant in his
3The order itself appears to be conditional. In ruling from

the bench, the court stated, “[a]ll right. Subject to my ruling

on the insufficiency of service of process issue, I will go ahead

and rule that the 1997 agreement does not bar the plaintiff from

trying to bring in Mr. Miscavige as an individual outside his

capacity as an officer of RTC.”

4

personal capacity.3 

No appeal from the order in which the court permitted the

Estate to add Miscavige in his personal capacity was attempted,

nor was an appeal necessary in that on June 16, 2000, the Florida

court granted Miscavige's motion to dismiss the complaint with

respect to him due to insufficient service of process. Miscavige

also sought attorneys’ fees, and the Florida court denied

Miscavige's motion with respect to fees. Miscavige appealed the

fee issue to the Florida appellate court. The Florida appellate

court affirmed the trial court's ruling on the issue of

attorneys’ fees. 

B. The Breach of Contract Action

While Miscavige's appeal of the attorneys’ fee issue was

still pending, RTC filed suit against the Estate for breach of

the Estate-Flag defendant-limiting contract, and against

Liebreich personally for tortiously interfering with the contract

between the Estate and Flag. RTC filed in United States District

Court in the Eastern District of Texas under a diversity of

citizenship jurisdictional theory. RTC claimed standing as a
4The Estate moved to dismiss the breach claim for want of

jurisdiction (subject matter and personal), for lack of capacity

to be sued in Texas, for lack of standing, and for improper

venue. The Estate also asked the district court to dismiss the

action based on multiple abstention doctrines, a theory of

litigation privilege, the doctrine of law of the case, and the

Constitutional requirements of the Full Faith and Credit Clause.

Finally, in rounding out its rather omnibus motion, the Estate

asserted the defenses of waiver and estoppel. The district court

rejected each of these theories of dismissal. 

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third-party beneficiary of the Estate-Flag contract. 

On the Estate's motion, the district court dismissed the

tortious interference count against Liebreich for failing to

state a claim. However, the district court denied the Estate's

motion to dismiss RTC's breach of contract claim.4

The district court next entertained the parties' dispositive

motions. The district court denied the Estate's motion for

summary judgment, finding that it embodied only points of law

which had already been addressed and rejected by the district

court in passing upon the Estate's motion to dismiss. The

district court also denied RTC's motion for partial summary

judgment on the issue of liability, finding that the contract was

ambiguous on the question of whether the contract precluded suit

against Miscavige in his personal capacity, and consequently

material facts were in dispute concerning liability. 

RTC moved the district court to reconsider its motion for

partial summary judgment. In support of its motion to reconsider,

RTC attached extrinsic evidence which purported to demonstrate

that the contracting parties intended Miscavige to be protected
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from suit in his personal capacity. In light of this evidence,

the district court reconsidered its previous ruling and granted

summary judgment in favor of RTC on the issue of liability. 

The case then proceeded to trial on the issue of damages. 

The Estate proposed to offer the testimony of Liebreich to

dispute the foreseeability of the damages incurred by RTC, under

the theory that prior to adding Miscavige - the sole act of

breach - Liebreich reasonably relied on the Florida court's order

permitting Liebreich to add Miscavige, but the district court

determined the evidence to be irrelevant and excluded it. RTC,

on the other hand, was permitted by the district court to

provide testimony concerning attorneys’ fees incurred by RTC in

moving to have Miscavige dismissed for want of service of

process, and in aiding Miscavige in his quest to recover

attorneys’ fees from the Florida trial and appellate courts. 

At the close of testimony, the Estate moved for a directed

verdict asserting that RTC had failed to meet its burden at

trial. The district court denied the motion from the bench. 

The Estate offered a proposed jury instruction regarding the

prevailing market rate for attorneys’ fees in Tampa, but the

district court rejected the instruction. The jury returned a

verdict for $258,697.10. 

C. Post-Trial Motions 

Upon completion of the trial the Estate filed a Rule 59
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motion for a new trial, asserting, again, that the district court

erred in failing to dismiss the action prior to trial and

reasserting its previously adjudicated arguments that the

district court lacked both personal and subject matter

jurisdiction, that venue was improper, that the Estate enjoyed a

litigation privilege immunity, that RTC lacked standing, and so

forth. The Estate also chose to use its Rule 59 motion for a new

trial to reassert its opposition to the district court's

previous evidentiary rulings, jury instruction rulings, and the

ruling denying a directed verdict. The district court summarily

denied the Rule 59 motion. The Estate filed a notice of appeal.

RTC, on the other hand, moved to recover its costs and fees

as a prevailing party pursuant to the Estate-Flag contract. RTC

petitioned the district court for an award of $549, 015.84 in

costs and fees for the litigation of this single-issue breach of

contract case. The district court reduced the award to $327,

654.00. 

RTC also moved the district court to impose sanctions

pursuant to 28 U.S.C. §1927 on the Estate's counsel, citing

vexatiously repetitive motions and filings on the part of the

Estate. The Estate responded with its own §1927 motion for

sanctions. The district court declined to sanction RTC’s

counsel, but the court did impose sanctions against the Estate's

counsel for 30% of the attorneys’ fees awarded, which totaled

$98, 296.00. The Estate’s counsel, Thomas and Kennan Dandar,
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(the Dandars) filed a second, separate, appeal of the imposition

of §1927 sanctions against them. 

Finally, RTC filed a cross-appeal challenging the district

court's decision to grant Liebreich's 12(b)(6) motion to dismiss

the tortious interference claim. The three appeals have been

consolidated and are pending now before this Court. 

II.

This Court reviews de novo the district court's

determination regarding personal jurisdiction. Central Freight

Lines Inc. v. APA Transport Corp., 322 F.3d 376, 380 (5th Cir.

2003). To determine whether a federal district court sitting in

diversity has personal jurisdiction over a nonresident defendant,

the district court considers first whether exercising

jurisdiction over the defendant comports with due process, and if

due process is met, the district court turns to the

extraterritorial jurisdictional rules of the state in which it

sits to determine whether personal jurisdiction is conferred. 

Interfirst Bank Clifton v. Fernandez, 844 F.2d 279, 282 (5th Cir.

1988); Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex.1990).

Because the Texas Long Arm Statute is coextensive with the

confines of due process, questions of personal jurisdiction in

Texas are generally analyzed entirely within the framework of the

Constitutional constraints of Due Process. See Texas Long Arm
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Statute, Tex.Civ.Prac. & Rem.Code Ann. § 17.041 (Vernon 2001) et.

seq.; Gessmann v. Stephens, 51 S.W.3d 329, 335 (Tex.App. 2001); 

Fernandez, 844 F.2d at 282. 

However, exercising personal jurisdiction over an estate

which is probated in a foreign district presents particular

jurisdictional problems. Usually when a court exercises

jurisdiction over either a foreign or domestic estate the

jurisdiction is in rem - that is, the court has jurisdiction over

the property itself. Here, however, there is no question that

the district court lacked in rem jurisdiction over the Estate. 

Instead, the contention here is that Liebreich, as the personal

representative of the Estate, created in personam jurisdiction

over the Estate. There are two ways in which Liebreich might

have brought the Estate into the reach of the district court, and

both avenues have been presented to this Court. First, the

district court found general jurisdiction over the Estate via

Liebreich. Moreover, RTC argues that Liebreich created specific

jurisdiction over the Estate. However, neither general nor

specific jurisdiction existed over the Estate. 

A. General Jurisdiction

The district court correctly found that it had general

personal jurisdiction over Liebreich as a resident of Texas. 
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However, the district court impermissibly imputed that general 

personal jurisdiction to the Estate. The district court stated

that, "[t]here can be no doubt that as a resident of the State of

Texas, Ms. Liebreich has had sufficient contacts with the state

to confer general jurisdiction over her in this matter, both in

her individual and representative capacities." Thus, the district

court concluded that the general jurisdiction which a Texas court

has over a Texas resident applies equally to a foreign estate

whose representative lives in Texas. However, the district court

is in error on this point. 

General jurisdiction exists where a "defendant's contacts

with the forum state are substantial and continuous and

systematic but unrelated to the instant cause of action." 

Central Freight Lines, 322 F.3d at 381 (internal quotations

omitted); Helicoptieros Nacionales de Columbia, S.A. v. Hall, 466

U.S. 408 (1984). The residency of a defendant in the forum state

routinely creates such systematic and continuous contact. In the

instant case, however, the defendant in question is not a

resident of Texas. As a creature of the Florida probate regime,

the Estate resides in Florida. Thus, for an estate probated in a

foreign jurisdiction to establish the type of continuous and

systematic contact necessary for general jurisdiction, the

representative of the Estate must have made those contacts in her

representative capacity, on behalf of the Estate. It is not
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sufficient that the personal representative herself lives in

Texas. 

Here, despite the fact that Liebreich conducted some Estate

business from her home in Texas, she did not establish systematic

and continuous contact with Texas on behalf of the Estate such

that general jurisdiction over the Estate was conferred. RTC

argues that on behalf of the Estate Liebreich signed a retainer

letter in Texas, received and distributed property from the

Estate in Texas, and participated in decisions concerning the

Florida litigation while she was in Texas. However, these

sporadic Estate-related activities cannot be described as a part

of a systematic and continuous stream of activities tying the

Estate to Texas. None of the activities individually constitutes

a substantial or meaningful contact with Texas, Texas law, or

Texas residents, and certainly considered in toto they fail to

amount to continuous and systematic contact with Texas such that

general jurisdiction is created. Compare, Central Freight Lines,

322 F.3d 381(finding that general jurisdiction was lacking over

corporate defendant, despite the fact that the defendant,

"routinely arranges and receives interline shipments to and from

Texas and apparently sends sales people to the state on a regular

basis to develop business, negotiate contracts, and service

national accounts...."); see also, Wilson v. Belin, 20 F.3d 644,

649-51 (5th Cir. 1994) (finding no general personal jurisdiction
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over the defendant, despite the fact that defendant engaged in at

least one professional legal project a year in Texas over the

previous three years). Consequently, the district court erred in

concluding that it had general personal jurisdiction over the

Estate. 

B. Specific Jurisdiction

Although the district court relied on general personal

jurisdiction over the Estate, RTC suggests that the district

court also had specific jurisdiction over the Estate. Specific

jurisdiction may be found when a foreign defendant "has

‘purposefully directed’ his activities at residents of the forum,

and the litigation results from alleged injuries that ‘arise out

of or relate to’ those activities." Burger King Corp. v.

Rudzewicz, 471 U.S. 462,472 (1985)(citing Keeton v. Hustler

Magazine, Inc., 465 U.S. 770,774 (1984) and Helicopteros

Nacionales, 466 U.S. at 414)(internal citations omitted)). A

single act may support specific jurisdiction where the act is

directed at residents of the forum, and the cause of action

relates to the act. Burger King Corp., 471 U.S. at 476 n.18

(citing McGee v. International Life Insurance Co., 355 U.S. 220

at 223 (1957)).

In the specific jurisdiction rubric, only those acts which
5 Additionally, the presence of Liebreich in Texas lacks the

significance that it might otherwise have, had she been acting on

her own behalf, as she was at the time representing an entity

whose "physical presence" was in Florida. 

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relate to the formation of the contract and the subsequent breach

are relevant. In support of its argument that specific

jurisdiction exists, RTC points to the fact that Liebreich

participated in negotiations concerning the Estate-Flag contract

while in Texas, and the fact that Liebreich signed the

Estate-Flag contract while in Texas. However, neither of these

acts were directed at residents of the forum state, or at the

forum state itself. While it is well established that "with

respect to interstate contractual obligations...parties who reach

out beyond one state and create...obligations with citizens of

another state are subject to regulation and sanctions in the

other State for the consequences of their activities," here,

while contracting in the stead of a Florida resident, Liebreich 

reached out from Texas to residents of Florida (Flag) and

California (RTC). Burger King, 471 U.S. at 473. Therefore, the

Estate did not direct its activities at the forum state. 

Moreover, the physical location of Liebreich at the time she

signed the agreement and participated in negotiations on behalf

of the Estate is not especially relevant in the analysis.5 The

Supreme Court has rejected a formalistic rendering of minimum

contacts, opting instead to look at the degree that a nonresident
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defendant has reached out and availed himself of the foreign

venue. Here, in forming the contract, the Estate availed itself

of the State of Florida and contracted exclusively with non-Texas

residents. The Estate did not reach out to Texas, nor did it

direct its contract-related activities toward Texas. It did not

contract with Texas residents nor did it avail itself of Texas

law in the formation of the contract. Therefore, the fact that

Liebreich signed the contract in Texas does not, alone, support

specific jurisdiction. 

In sum, the district court lacked personal jurisdiction over

the Estate. Liebreich's general jurisdiction cannot be imputed to

the Estate, and the Estate did not establish minimum contacts

relating to the breach action with the forum jurisdiction

sufficient to support specific jurisdiction. Therefore, the

district court erred in failing to dismiss the action against the

Estate for want of jurisdiction. 

III. 

For the foregoing reasons the judgment of the district court

is vacated and the case is remanded for proceedings consistent

with the renderings herein.