UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-1478

PAUL ROLF JENSEN,

Plaintiff - Appellant,

versus

LARRY KLAYMAN, a/k/a Larry E. Klayman, A

candidate for the United States Senate from

Florida

Defendant - Appellee.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. T. S. Ellis, III, District

Judge. (CA-03-1600-A)

Submitted: October 1, 2004 Decided: November 19, 2004

Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Paul Rolf Jensen, Appellant Pro Se. Joseph Ray Price, ARENT FOX,

P.L.L.C., Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Paul Rolf Jensen appeals the district court’s order

granting the Defendant’s motion to dismiss his civil action under

Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction, or in

the alternative, under Fed. R. Civ. P. 12(b)(1), because of the

parties’ agreement to arbitrate the dispute in Florida. Jensen

asserts the district court erred in determining he failed to make

a prima facie showing of personal jurisdiction over the Defendant,

in finding his claims were subject to an arbitration agreement, and

in failing to sua sponte transfer his case to the Southern District

of Florida. Because we find no reversible error, we affirm.

When personal jurisdiction is challenged under Rule

12(b)(2), the jurisdictional question is resolved by the judge,

with the burden on the plaintiff ultimately to prove grounds for

jurisdiction by a preponderance of the evidence. Mylan Labs., Inc.

v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir. 1993). When a district

court rules on a pretrial personal jurisdiction motion without

conducting an evidentiary hearing, we review the facts in the light

most favorable to the plaintiff and determine de novo whether he

has made a prima facie showing of personal jurisdiction. Mitrano

v. Hawes, 377 F.3d 402, 406 (4th Cir. 2004). To establish personal

jurisdiction over a nonresident defendant through a state long arm

statute, a court must first determine that jurisdiction is

authorized by state law; if so, the court must next decide whether
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exercising personal jurisdiction would be consistent with due

process. Id. (citations omitted). 

Virginia’s long arm statute extends personal jurisdiction

to the limits allowed by due process. Id. (citations omitted).

Thus, our statutory inquiry merges with our constitutional inquiry.

Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d

390, 396-97 (4th Cir. 2003). A court’s exercise of jurisdiction

over a nonresident defendant comports with due process if the

defendant has “minimum contacts” with the forum, such that to

require the defendant to defend its interests in that state “does

not offend traditional notions of fair play and substantial

justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)

(internal quotation marks omitted). “A defendant should be able to

anticipate being sued in a court that can exercise personal

jurisdiction over him; thus, to justify an exercise of

jurisdiction, a defendant’s actions must have been ‘directed at the

forum state in more than a random, fortuitous, or attenuated way.’”

Mitrano, 377 F.3d at 407 (citing ESAB Group, Inc. v. Centricut,

Inc., 126 F.3d 617, 625 (4th Cir. 1997)).

The standard for determining the existence of personal

jurisdiction over a nonresident defendant varies, depending on

whether the defendant’s contacts with the forum state also provide

a basis for the suit. Carefirst of Md., 334 F.3d at 397. If those

contacts form the basis for the suit, they may establish “specific
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jurisdiction.” Id. In determining whether specific jurisdiction

exists, the court considers (1) the extent to which the defendant

has purposefully availed himself of the privilege of conducting

activities in the state; (2) whether the plaintiff’s claims arise

out of those activities directed at the state; and (3) whether the

exercise of personal jurisdiction would be constitutionally

reasonable. Id. “If, however, the defendant’s contacts with the

state are not also the basis for the suit, then jurisdiction over

the defendant must arise from the defendant’s general, more

persistent, but unrelated contacts with the state.” Id. To

establish general jurisdiction, the defendant’s activities in the

state must have been “continuous and systematic,” a more demanding

standard than is necessary for establishing specific jurisdiction.

ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707,

712 (4th Cir. 2002) (citations omitted). Our review of the record

convinces us that Jensen failed to make the requisite prima facie

showing of personal jurisdiction.

We also agree with the district court that this dispute

is subject to an arbitration agreement between the parties.

Because the examination of the scope of an arbitration agreement is

primarily a task of contract interpretation, we review a district

court’s determination of the arbitrability of a dispute de novo.

Cara’s Notions v. Hallmark Cards, 140 F.3d 566, 569 (4th Cir.

1998). In applying state-law contract interpretation principles,
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due regard is given to federal policy favoring arbitration, and

ambiguities are resolved in favor of arbitration. Id. An

agreement to arbitrate in a particular place “is, in effect, a

specialized kind of forum-selection clause that posits not only the

situs of suit but also the procedure to be used in resolving the

dispute.” Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 (1974).

Since its decision in The Bremen v. Zapata Off-Shore Co., 407 U.S.

1 (1972), “the Supreme Court has consistently accorded choice of

forum and choice of law provisions presumptive validity.” Allen v.

Lloyd’s of London, 94 F.3d 923, 928 (4th Cir. 1996) (citations

omitted). We find the district court correctly determined Jensen’s

claims were covered by an agreement to arbitrate in Florida. 

Finally, Jensen claims the district court erred in

failing to sua sponte transfer this case to the Southern District

of Florida under 28 U.S.C. § 1631 (2000) once the court determined

that it lacked personal jurisdiction over the Defendant. First, we

note that Jensen waived this claim by failing to raise it in the

district court. See Muth v. United States, 1 F.3d 246, 250 (4th

Cir. 1993). Moreover, the district court did not plainly err in

failing to transfer the case, since the parties agreed to

arbitration and Jensen did not establish that a transfer to a

district court in Florida would be in the interest of justice. See

28 U.S.C. § 1631.
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Accordingly, we affirm the judgment of the district

court. We grant Appellee’s unopposed motions for leave to file

transcripts with his brief and to seal the parties’ briefs. We

deny Appellee’s motion for summary affirmance as moot, and we deny

Appellee’s motion to seal his motion for summary affirmance. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED