1

The Honorable David S. Doty, United States District Judge for the District of

Minnesota.

2

Because we hold that the district court lacked personal jurisdiction, we do not

reach the merits of Johnson’s Lanham Act claim. We are not empowered to issue

opinions on moot questions or to declare rules of law that do not affect the case before

us. Republican Party of Minnesota v. Klobuchar, 381 F.3d 785, 790 (8th Cir. 2004).

In addition, we affirm the district court’s dismissal even though the court was

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 05-2192

___________

Mary E. Bonner Johnson, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Richard W. Woodcock, *

*

Appellee. *

___________

Submitted: April 7, 2006

Filed: April 11, 2006

___________

Before WOLLMAN, LAY, and MELLOY, Circuit Judges.

___________

WOLLMAN, Circuit Judge.

 Mary E. Bonner Johnson appeals the district court’s1

 grant of Richard W.

Woodcock’s motion to dismiss for lack of personal jurisdiction. We affirm.2
empowered by 28 U.S.C. § 1631 to transfer the action to another court to cure the lack

of jurisdiction. Johnson did not request such a transfer either in the district court or

in the briefs or during oral argument before this court and now raises the issue

belatedly by way of a petition for rehearing. Accordingly, we deem any request for

a transfer to have been waived. See, e.g., Chay-Velasquez v. Ashcroft, 367 F.3d 751,

756 (8th Cir. 2004) (failure to raise issue in opening brief on appeal generally

constitutes waiver).

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I.

Johnson and Woodcock began working together in 1968. Johnson first served

as Woodcock’s secretary at American Guidance Services, a Minnesota company

where Woodcock was involved in the development of psychological and cognitive

ability tests. This relationship flourished for a time, and when Woodcock left

American Guidance Services in 1972 to form Measurement Learning Consultants

(MLC), Johnson joined him at the new firm as the assistant director. While working

together at MLC, Woodcock developed a series of psychological tests, the most

significant of which is the Woodcock-Johnson Psychoeducational Battery (Battery).

The level of Johnson’s involvement is disputed, but Johnson alleges that she was the

co-author of the Battery and was significantly involved in the substantive

development of the tests. 

When Teaching Resources Corporation (Teaching Resources) published the

Battery in 1976, Woodcock and Johnson entered into a contract that allocated ninety

percent of the royalties to Woodcock and the remaining ten percent to Johnson. In

1977, Woodcock moved MLC’s operations to Oregon. Johnson remained in

Minnesota, but she and Woodcock continued to have a business relationship

throughout the 1980s, working together on revisions to the Battery. In February 1986,

they entered into a publishing contract for the revised edition of the WoodcockJohnson Battery. 
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After Woodcock moved his residence from Minnesota in 1977, he resided in

several other states, including Oregon, California, and Tennessee. Except for a short

period in the early 1980s, he has not had a Minnesota residence since 1977 and has

had limited contact with that state. Woodcock continued to have a working

relationship with Johnson until 1989, and they have occasionally corresponded and

conversed over the years. Woodcock has also published two books through American

Guidance Services, a Minnesota company. 

In 1997, Woodcock and three new co-authors, including Kevin McGrew, a

Minnesota resident, entered into a contract with Riverside Publishing Company to

publish a third revision to the Battery. The third revision was published in 2001.

Although she was not a party to the 1997 contract, Johnson claimed a right to royalty

payments thereunder. She filed this action against Woodcock in the District of

Minnesota, alleging violations of the Lanham Act and the Minnesota Deceptive Trade

Practices Act, as well as intentional interference with business relations,

misrepresentation, breach of contract, and promissory estoppel. The district court

dismissed the suit for lack of personal jurisdiction over Woodcock. 

II.

We review de novo a dismissal for lack of personal jurisdiction. Porter v.

Berall, 293 F.3d 1073, 1075 (8th Cir. 2002). The party asserting personal jurisdiction

has the burden of establishing a prima facie case. Epps v. Stewart Information Service

Corp., 327 F.3d 642, 647 (8th Cir. 2003). Because Minnesota’s long-arm statute is

coextensive with constitutional limits, we need only determine whether the assertion

of jurisdiction over this defendant offends due process. Minnesota Mining & Mfg. v.

Nippon Carbide Indus., 63 F.3d 694, 696-97 (8th Cir. 1995).

Personal jurisdiction exists only if the contacts between the defendant and the

forum state are sufficient to establish that the defendant has purposefully availed
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himself of the benefits and protections of the forum state. Porter, 293 F.3d at 1075.

This purposeful availment must be sufficient to provide the defendant with fair

warning that his activities might result in his being haled into court in that jurisdiction.

Id. “Minimum contacts must exist either at the time the cause of action arose, the

time the suit was filed, or within a reasonable period of time immediately prior to the

filing of the lawsuit.” Pecoraro v. Sky Ranch For Boys, Inc., 340 F.3d 558, 562 (8th

Cir. 2003).

The nonmoving party also must establish that a “substantial connection” exists

between the defendant and the forum state. Porter, 293 F.3d at 1075 (citing Burger

King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)). We consider five factors in

determining whether a substantial connection exists: (1) the nature and quality of the

contacts with the forum state; (2) the quantity of the contacts with the forum state; (3)

the relation of the cause of action to those contacts; (4) the interest of the forum state

in providing a forum for its residents; and (5) the convenience of the parties. Id. at

1076. The last two factors carry less weight and are not dispositive. Id.

In Helicopteros Nacionales de Colombia, S.A. v. Hall, the Supreme Court

articulated two theories for finding personal jurisdiction: specific jurisdiction and

general jurisdiction. See 466 U.S. 408, 414-15 (1984). Specific jurisdiction can only

be found if the controversy is “related to or ‘arises out of’” the defendant’s contacts

with the forum state. Id. at 414. General jurisdiction exists where the contacts

between the defendant and the forum state are “continuous and systematic” even if

there is no relationship between the contacts and the cause of action. Id. at 415.

Regarding specific jurisdiction, Johnson makes only a conclusory assertion that

the causes of action are related to the relationship that Woodcock established and

maintained with Minnesota and Johnson. The burden to establish a prima facie case

of personal jurisdiction is on the party asserting jurisdiction, and Johnson does not

meet that burden. The only relevant contacts that are related to or give rise to the
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controversy here are the contacts between Woodcock and Johnson. Those contacts

are too random, fortuitous, or attenuated to support an assertion of jurisdiction in this

case. The contacts asserted in the 1960s, 70s, and 80s are not within the reasonable

timeframe required by Pecararo. 340 F.3d at 562. The occasional correspondences

between Johnson and Woodcock similarly do not support jurisdiction. “Contact by

phone or mail is insufficient to justify exercise of personal jurisdiction under the due

process clause.” Porter, 293 F.3d at 1076. The only other asserted contacts are those

between Woodcock and McGrew and those between Woodcock and a publishing

company in Minnesota. Johnson has made no attempt to explain how any of those

contacts are related to the causes of action here. Johnson’s conclusory allegations do

not satisfy her burden to establish a prima facie case of specific jurisdiction. 

Johnson’s primary argument is that general jurisdiction exists over Woodcock

in Minnesota. The contacts Johnson articulates, however, fall short of the “continuous

and systematic general business contacts” required to find general jurisdiction. See

Helicopteros, 466 U.S. at 416. The correspondence between Woodcock and Johnson

does not support general jurisdiction. See Porter, 293 F.3d at 1076. The other

business contacts between Woodcock and Minnesota that fall within the relevant time

frame, involving some collaboration with a Minnesota resident on one project and a

publishing relationship with a Minnesota company, are also insufficient to warrant

general jurisdiction. Cf. Helicopteros, 466 U.S. at 418 (“[W]e hold that mere

purchases, even if occurring at regular intervals, are not enough to warrant a State’s

assertion of in personam jurisdiction over a nonresident corporation in a cause of

action not related to those purchase transactions.”).

Johnson argues that the magistrate judge found general jurisdiction over some

claims and that because Woodcock did not challenge this finding, the issue was

waived. Woodcock did challenge this finding in the district court, however, so the

issue was preserved. Johnson further argues that the district court abused its

discretion in denying her motion to supplement the record. The district court
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adequately justified this decision based on its interest in encouraging parties to present

all evidence to the magistrate judge in a clear and timely fashion. Moreover, Johnson

has not shown how the requested expansion of the record would create evidence of

sufficient contacts to affect the outcome of this issue. Accordingly, the district court

did not abuse its discretion in refusing to accept evidence that was not presented to the

magistrate judge.

The order of dismissal is affirmed.

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