* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore submitted without o ral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court ge nerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

1 Tom Olsen is the plaintiff in a pending administrat ive proceeding brought under the Longshore Harbor Worker’s Compensation Ac t, which is currently before Judge Mapes in San Francisco, California. R obert Babcock is an attorney who represents Mr. Olsen’s former employer, Triple A Machine Shop, Inc., in that proceeding. Plaintiffs’ claims arise from the alleged conduct of Judge Mapes 

## F I L E D United States Court of Appeals Tenth Circuit 

### June 30, 2005 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

NAOMI OLSEN; TOM OLSEN, Plaintiffs-Appellants,

v. PAUL MAPES; ROBERT BABCOCK, Defendants-Apellees. No. 04-2023 (D.C. No. CIV-01-563-MCA/RLP)

(New Mexico)



### ORDER AND JUDGMENT *

Before SEYMOUR , HARTZ , and McCONNELL , Circuit Judges.
Tom and Naomi Olsen brought a pro se civil action against attorney Robert Babcock and Administrative Law Judge Paul Mapes. 1 In a Second Amendedand Mr. Babcock in those proceedings. -2-

Complaint filed without permission of the court, th e Olsens attempted to add the New Mexico Board of Pharmacy (Board) as a defendant . The claims against Mr. Babcock were dismissed for lack of in personam jurisdiction. The claims against Judge Mapes were dismissed based on the district co urt’s determination that the Olsens failed to comply with the court’s orders to perfect service. The district court then struck the Second Amended Complaint, eff ectively dismissing all claims against the Board. The Olsens appealed the dismissal of claims against Judge Mapes and the Board and we reversed. Olsen v. Mapes , 333 F.3d 1199 (10th Cir. 2003). The Olsens did not appeal the di smissal of the complaint against Mr. Babcock. Id. at 1200 n.1. Although noting the Olsens had not appealed with respect to Mr. Babcock, on remand the district court nevertheless reaffirmed its order of dismissal with prejudice wi th respect to him and granted Judge Mapes’ motion to dismiss for lack of personal jurisdiction. The Olsens appeal. We dismiss the appeal with respect to Mr. Babcock for lack of appellate jurisdiction and otherwise affirm. The first issue we must resolve is whether this court has jurisdiction over Mr. Babcock. Although the Olsens raise issues conc erning Mr. Babcock in their appellate brief, he contends our jurisdiction is ci rcumscribed to the contents of the notice of appeal. F ED
. R. A PP
. P. 3(c) (the notice of appeal must designate the-3-

order being appealed). However, timely filed appel late briefs and pro se documents may serve as the functional equivalent of a notice of appeal. See, e.g., Smith v. Barry , 502 U.S. 244, 248-49 (1992); Rodgers v. Wyoming Att’y Gen. , 205 F.3d 1201, 1204 n.3 (10th Cir. 2000), overruled on other grounds as recognized by Moore v. Marr , 254 F.3d 1235, 1239 (10th Cir. 2001). Although the Olsens’ references to Mr. Babcock in their appellate brief constitute the functional equivalent of a notice of appeal, their claims agai nst him must nevertheless be dismissed. “This court cannot exercise jurisdictio n absent a timely notice of appeal.” United States v. Smith , 182 F.3d 733, 734 (10th Cir. 1999). The deadline for filing a notice of appeal in a civil c ase expires “30 days after the judgment or order appealed from is entered.” F ED
. R. A PP
. P. 4(a)(1). The Olsens’ appellate brief, dated June 25, 2004, was n ot filed within thirty days of the court’s August 25, 2003 order dismissing Mr. Babcock, and we therefore lack appellate jurisdiction over their claims against hi m. The remaining issue is whether the district court e rred in dismissing Judge Mapes for want of in personam jurisdiction. “We review de novo the district court’s dismissal for lack of personal jurisdiction .” Soma Med. Int’l v. Standard Chartered Bank, 196 F.3d 1292, 1295 (10th Cir. 1999). “When, as in this case, a district court grants a motion to dismiss for lack of personal jurisdiction without conducting an evidentiary hearing, the plaintiff ne ed only make a prima facie-4-

showing of personal jurisdiction to defeat the moti on.” Id

. (internal quotation omitted). The district court held the Olsens faile d to make a prima facie showing that the constitutional requirements for the exerci se of personal jurisdiction were satisfied with respect to Judge Mapes. We agree. “To obtain personal jurisdiction over a nonresidentdefendant in a diversity action, a plaintiff must show that jurisdiction is legitimate under the laws of the forum state and that the exercise of jurisdiction d oes not offend the due process clause of the Fourteenth Amendment.” Id. (internal quotation omitted). New Mexico’s long arm statute is coextensive with const itutional limitations imposed by the due process clause. Tercero v. Roman Catholic Diocese of Norwich,
Conn. , 48 P.3d 50, 54-55 (N.M. 2002). Our opinion in OMI Holdings, Inc. v. Royal Ins. Co. of Canada , 149 F.3d 1086 (10th Cir. 1998), lays out the well-established constitutional analysis for person al jurisdiction: “The Due Process Clause protects an individual’s li berty interest in not being subject to the binding judgments of a forum w ith which he has established no meaningful ‘contacts[,] ties, or rel ations.’” Burger King Corp. v. Rudzewicz , 471 U.S. 462, 471-72 (1985). Therefore, a “courtmay exercise personal jurisdiction over a nonresident d efendant only so long as there exist ‘minimum contacts’ between the defendan t and the forum state.” World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286, 291 [(1980)]. The requirement that “minimum contacts” be present protects a defendant, who has no meaningful contact with a state, from th e burdens of defending a lawsuit far from home in a forum where the substa ntive and procedural laws may be quite different from those with which t he litigant is familiar. See id . at 292 . . . . The “minimum contacts” standard may be met in two ways. First, a court may, consistent with due proc ess, assert specific jurisdiction over a nonresident defendant “if the defendant has-5-

‘purposefully directed’ his activities at residents of the forum, and the litigation results from alleged injuries that ‘aris e out of or relate to’ those activities.” Burger King , 471 U.S. at 472 (internal quotations omitted). Where a court’s exercise of jurisdiction does not directly arise from a defendant’s forum-related activities, the court maynonetheless maintain general personal jurisdiction over the defendant ba sed on the defendant’s general business contacts with the forum state. He licopteros Nacionales de Colombia v. Hall , 466 U.S. 408, 415 (1984). Id . at 1090-91 (emphasis added). We agree with the d istrict court that the Olsens’ submissions are insufficient to demonstrate the typ e of continuous and systematic contacts with New Mexico that would warrant general jurisdiction over Judge Mapes. The question then is whether the Olsens mad e a prima facie showing that the requirements of specific jurisdiction have been met. A specific jurisdiction analysis involves a two-ste p inquiry. First, we must consider whether “the defendant's conduct and conne ction with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen , 444 U.S. at 297. In this connection, we examine whether the “defendant purposefully avail[ed] itsel f of the privilege of conducting activities within the forum State.” Hanson v. Denckla , 357 U.S. 235, 253 (1958). “Second[,] if the defendant’s actions create suffic ient minimum contacts, we must then consider whether the exercise of personal juri sdiction over the defendant offends ‘traditional notions of fair play and subst antial justice.’” OMI, 149 F.3d at 1091 (quoting Asahi Metal Indus. Co. v. Superior Court of Califor nia , 480 U.S. 102, 113 (1987)). In other words, the forum state’ s exercise of jurisdiction over-6-

the defendant must be reasonable “in light of the c ircumstances surrounding the
case.” Id . at 1091. We agree with the district court that Judge Mapes’ contact with the Olsens in response to proceedings they initiated in Califo rnia did not create a substantial connection between Judge Mapes and New Mexico. Fir st, “[i]t is well-established that phone calls and letters are not necessarily su fficient in themselves to establish minimum contacts.” Far West Capital, Inc. v. Towne , 46 F.3d 1071, 1077 (10th Cir. 1995). Instead, “the exercise of j urisdiction depends on the

nature of those contacts.” Rambo v. Am. S. Ins. Co. , 839 F.2d 1415, 1418 (10th Cir. 1988). There is simply no evidence on the rec ord that Judge Mapes purposefully chose New Mexico as the forum for any of his contacts with the Olsens. Judge Mapes neither lives nor works in NewMexico. Indeed, it was mere fortuity that the Olsens happened to reside in New Mexico when some of their contacts with Judge Mapes occurred. Burger King , 471 U.S. at 475 (“‘purposeful availment’ requirement ensures that adefendant will not be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts”). In addition, a showing of minimum contacts cannot r est on the Olsens’ unilateral actions seeking contact with Judge Mapes

. Id . at 478 (an individual’s contract with an out-of-state party alone does not automatically establish-7-

sufficient minimum contacts in the other party’s ho me forum). Tom Olsen is a plaintiff in an administrative proceeding which is currently pending before Judge Mapes in the Northern District of California. The mere fact that Judge Mapes engaged in communication with the Olsens while theywere in New Mexico regarding a case they filed in California does not constitute sufficient minimum contacts with New Mexico to support personal jurisd iction under federal law. See
Soma , 196 F.3d at 1298-99 (British bank’s actions in se nding faxes and other communications to Utah corporation held insufficien t to establish specific personal jurisdiction in Utah where corporation app arently unilaterally decided to conduct business with British bank and Utah had onl y fortuitous role in parties’ relationship). In fact, all of the actions complai ned about by the Olsens were conducted by Judge Mapes in his official capacity i n California. Even though Judge Mapes does not have the requisite minimum contacts with New Mexico, we address the second part of the due process inquiry which involves determining whether the exercise of person al jurisdiction over the defendant offends “traditional notions of fair play and substantial justice.” OMI, 149 F.3d at 1091 (quotation omitted). We do so bec ause the two requirements for specific jurisdiction are interrelated such that an especially strong showing of reasonableness may serve to fortify a borderline sh owing of minimum contacts. Id . at 1091-92. Determining whether the second requi rement is satisfied requires-8-

consideration of several factors: (1) the defendant ’s burden of appearing, (2) the forum state’s interest in adjudicating the dispute, (3) the plaintiff’s interest in obtaining convenient and efficient relief, (4) the judicial system’s interest in obtaining the most efficient resolution of the cont roversy, and (5) the common interests of all sovereigns in promoting substantiv e social policies. See Burger King , 471 U.S. at 476-77. We agree with the district court with regard to the reasonableness inquiry. There do not appear to be any practical burdens or inconveniences for either party associated with litigating the claims outside of Ne w Mexico because both parties currently reside in California. The Olsens have no t identified any interest in the state of New Mexico in adjudicating their dispute w ith Judge Mapes, nor have they pointed to any fundamental substantive social policy that would be advanced by litigating their claims in New Mexico. Moreover , retention of the case by the District of New Mexico does not appear necessary to bring about an efficient resolution. Thus, the constitutional prerequisites for the district court’s exercise of specific jurisdiction over Judge Mapes have not been satisfied. For the reasons stated above, we DISMISS the appeal against Mr. Babcock
and otherwise AFFIRM

. SUBMITTED FOR THE COURT Stephanie K. Seymour Circuit Judge