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The Honorable Daniel Hovland, Chief Judge, United States District Court for

the District of North Dakota. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-3185

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Mark D. Boyko, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of North Dakota.

Elizabeth A. Robinson, *

* [UNPUBLISHED]

Appellee. *

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Submitted: March 31, 2009

Filed: April 10, 2009

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Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.

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PER CURIAM.

In this civil action based upon diversity jurisdiction, Mark Boyko appeals the

district court’s1

 Federal Rule of Civil Procedure 12(b)(2) dismissal of his complaint

for lack of personal jurisdiction over the defendant, Elizabeth Robinson. Boyko has

also filed in this court a “motion for a hearing de novo.”

Upon de novo review of the dismissal for lack of personal jurisdiction, see

Stanton v. St. Jude Med., Inc., 340 F.3d 690, 693 (8th Cir. 2003) (standard of review),
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we agree with the district court that the record shows Robinson had no meaningful

contacts with North Dakota and could not have had “fair warning” that she could be

subject to North Dakota’s jurisdiction; therefore, exercising personal jurisdiction

would violate due process. See Burlington Indus., Inc. v. Maples Indus., Inc., 97 F.3d

1100, 1102 (8th Cir. 1996) (five factors to be considered in due process

determination); Gould v. P.T. Krakatau Steel, 957 F.2d 573, 576 (8th Cir. 1992)

(primary issue is whether nonresident defendant had “fair warning” that he or she

could be subject to jurisdiction of foreign sovereign).

We further conclude that Boyko’s reliance on the “effects test” is unavailing

because Robinson’s actions were not intentionally or expressly aimed at North

Dakota. See Calder v. Jones, 465 U.S. 783, 789-90 (1984) (establishing “effects” test:

non-resident defendant must “reasonably anticipate being haled into court” when his

“intentional, and allegedly tortious, actions were expressly aimed at” and produced

tangible effects in forum state); Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946

F.2d 1384, 1390-91 (8th Cir. 1991) (Calder “effects test” is additional factor to

consider, but “[i]n relying on Calder, we do not abandon the five-part test”). 

We also reject Boyko’s other arguments on appeal. First, there is nothing in the

record that would lead an average person to question the district court’s impartiality.

See United States v. Dehghani, 550 F.3d 716, 721 (8th Cir. 2008) (test for

impartiality). Second, Boyko’s belief the court ruled on the merits of his defamation

and emotional-distress claims is mistaken. See Ruhrgas AG v. Marathon Oil Co., 526

U.S. 574, 584 (1999) (without personal jurisdiction district court is powerless to

proceed to adjudication). Last, the court did not abuse its discretion in dismissing

Boyko’s complaint without a hearing. See Theunissen v. Matthews, 935 F.2d 1454,

1458 (6th Cir. 1991) (acknowledging that district court can decide properly supported

Rule 12(b) motion on pleadings).

Accordingly, we affirm. Boyko’s pending motion is denied.

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