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NIMMER v. GIGA ENTERTAINMENT MEDIA

Cite as 298 Neb. 630

John C. Nimmer, appellant, v

Giga Entertainment Media, Inc., 

___ N.W.2d ___

Filed January 12, 2018. No. S-17-070.

1. Judgments: Appeal and Error. When a jurisdictional question does 

not involve a factual dispute, the issue is a matter of law. An appellate court reviews questions of law independently of the lower court’s 

conclusion.

2. Jurisdiction: Rules of the Supreme Court: Pleadings: Appeal and 

Error. When reviewing an order dismissing a party from a case for 

lack of personal jurisdiction under Neb. Ct. R. Pldg. § 6-1112(b)(2), an 

appellate court examines the question of whether the nonmoving party 

has established a prima facie case of personal jurisdiction de novo.

3. Motions to Dismiss: Appeal and Error. In reviewing the grant of a 

motion to dismiss, an appellate court must look at the facts in the light 

most favorable to the nonmoving party and resolve all factual conflicts 

in favor of that party.

4. Jurisdiction: Words and Phrases. Personal jurisdiction is the power of 

a tribunal to subject and bind a particular entity to its decisions.

5. Due Process: Jurisdiction: States. Before a court can exercise personal 

jurisdiction over a nonresident defendant, the court must determine, 

first, whether the long-arm statute is satisfied and, if the long-arm statute is satisfied, second, whether minimum contacts exist between the 

defendant and the forum state for personal jurisdiction over the defendant without offending due process.

6. Constitutional Law: Jurisdiction: States. Nebraska’s long-arm statute, 

Neb. Rev. Stat. § 25-536 (Reissue 2016), extends Nebraska’s jurisdiction 

over nonresidents having any contact with or maintaining any relation to 

this state as far as the U.S. Constitution permits.

7. Due Process: Jurisdiction: States. If the long-arm statute has been 

satisfied, a court must then determine whether minimum contacts exist 

between the defendant and the forum state for personal jurisdiction over 

the defendant without offending due process.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

02/02/2018 08:14 AM CST
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8. ____: ____: ____. The benchmark for determining if the exercise of personal jurisdiction satisfies due process is whether the defendant’s minimum contacts with the forum state are such that the defendant should 

reasonably anticipate being haled into court there.

9. ____: ____: ____. Due process for personal jurisdiction over a nonresident defendant requires that the defendant’s minimum contacts with the 

forum state be such that maintenance of the suit does not offend traditional notions of fair play and substantial justice.

10. Due Process: Jurisdiction: States: Appeal and Error. In analyzing 

personal jurisdiction, an appellate court considers the quality and type of 

the defendant’s activities to decide whether the defendant has the necessary minimum contacts with the forum state to satisfy due process.

11. Jurisdiction: States. Whether a forum state court has personal jurisdiction over a nonresident defendant depends on whether the defendant’s 

actions created substantial connections with the forum state, resulting 

in the defendant’s purposeful availment of the forum state’s benefits 

and protections.

12. ____: ____. The purposeful availment requirement ensures that a 

defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts, or of the unilateral activity of 

another party or a third person. Jurisdiction is proper, however, where 

the contacts proximately result from actions by the defendant himself or 

herself that create a substantial connection with the forum state.

13. ____: ____. A court exercises two types of personal jurisdiction depending upon the facts and circumstances of the case: general personal jurisdiction or specific personal jurisdiction.

14. ____: ____. To satisfy general personal jurisdiction, the plaintiff’s claim 

does not have to arise directly out of the defendant’s contacts with the 

forum state if the defendant has engaged in continuous and systematic 

general business contacts with the forum state.

15. ____: ____. If the defendant’s contacts are neither substantial nor continuous and systematic, but the cause of action arises out of or is related 

to the defendant’s contact with the forum, a court may assert specific 

jurisdiction over the defendant, depending on the quality and nature of 

such contact.

Appeal from the District Court for Sarpy County: David K

Arterburn, Judge. Affirmed as modifie

John C. Nimmer, of Nimmer Law Office, pro se.

Clarence E. Mock, of Johnson & Mock, P.C., L.L.O., for 

appellee.
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Heavican, C.J., Wright, Miller-Lerman, Cassel

Kelch, and Funke, 

Heavican, C

I. INTRODUCTION

John C. Nimmer, a licensed attorney, began providing legal 

representation for Digital Broadcasting Corporation (DBC) in 

1995. In 2012, DBC merged with Giga Entertainment Media, 

Inc. (GEM), whereby GEM became the surviving corporation. 

DBC shareholders received a single share of GEM in exchange 

for each share owned in DBC.

In 2015, Nimmer withdrew from representation of DBC. 

Upon resigning from representation, Nimmer made a demand 

on GEM for cash legal fees and a repurchase of DBC common 

shares. After the parties failed to reach a settlement, Nimmer, 

acting pro se, filed a claim of breach of contract against 

GEM. GEM filed a motion to dismiss for lack of personal 

jurisdiction.

Following a hearing, the trial court granted GEM’s motion 

to dismiss for lack of personal jurisdiction and dismissed 

Nimmer’s complaint with leave to amend the complaint. 

Nimmer filed an amended complaint that included additional 

claims for tortious conversion and a violation of Nebraska’s 

Uniform Deceptive Trade Practices Act.1 GEM filed a second 

motion to dismiss for lack of personal jurisdiction. The district 

court granted GEM’s motion to dismiss for lack of personal 

jurisdiction and dismissed Nimmer’s complaint with prejudice. 

Nimmer appeals. We affirm as modified.

II. BACKGROUND

1. Factual Backg

Nimmer stated in his affidavit that he has provided legal 

services to DBC and its affiliates since April 1995, in exchange 

for DBC common shares and cash compensation. DBC was 

1 See Neb. Rev. Stat. §§ 87-301 to 87-306 (Reissue 2014 & Cum. Supp. 

2016).
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a Delaware corporation with its home offices formerly in 

Nassau County, New York, and is now dissolved. According to 

Nimmer, he provided legal services to “Sky Cable, LLC,” one 

of DBC’s affiliates that is now a dissolved Nevada business 

entity, with its former home office in Omaha, Nebraska.

Nimmer attached extensive documentation to his affidavit 

regarding any contact he had with DBC and GEM in addition 

to any document referencing both DBC and GEM. Among 

those documents is a June 24, 2008, letter that Nimmer sent to 

Gary Nerlinger, chairman of DBC, confirming the understanding that the agreement for the performance of legal services 

to DBC

shall be governed by, and construed and enforced in 

accordance with, the laws of the State of Nebraska. 

[DBC] hereby irrevocably submits to the jurisdiction of 

any federal or state courts of the State of Nebraska for 

purpose of any suit, action, or other proceeding arising 

out of this letter Agreement.

Nerlinger signed the letter as accepted.

Also attached to Nimmer’s affidavit are the minutes for a 

June 1, 2012, DBC board of directors telephonic meeting in 

which DBC’s board of directors approved a statutory merger 

of DBC’s assets with GEM. Nimmer averred in his affidavit 

that “[a]fter GEM’s creation in May 2012 by DBC[, Nimmer] 

continued to e-mail itemized billing statements for overlapping 

DBC and GEM legal work to the same persons addressed to 

‘DBC and Affiliates’.” On August 30, Charles Noska, GEM’s 

vice president of logistic integration, sent an email from a 

GEM email account to “DBC and now [GEM] Investors,” 

informing them that “[DBC] has been transformed formally 

into . . . GEM.” The email also included an attached “copy 

of the GEM Business Plan.” On September 26, Noska sent 

another email concerning the GEM business plan, with the 

subject line “GEM (formerly DBC) Index for Substantiating 

Articles and Research.”

Lawrence W. Silver, vice president of GEM, stated 

in his affidavit that GEM is a Nevada corporation with its 
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principal place of business in New York. GEM has no offices 

in Nebraska; owns no property in Nebraska; generates no revenue in Nebraska; maintains no corporate records in Nebraska; 

and has no employees, officers, or directors in Nebraska. Silver 

also stated that since GEM’s formation in 2012, there has not 

been a single instance in which a GEM employee, officer, 

or director traveled to Nebraska on company business or has 

otherwise been in Nebraska for any purpose relating in any 

way to GEM’s business activities. GEM has not contracted to 

supply goods or services in Nebraska, nor registered with the 

Secretary of State to do business in Nebraska.

On April 1, 2015, GEM mailed a letter to DBC shareholders, directing them to surrender their DBC shares in order to 

be issued shares in GEM. The process set forth in the letter 

required DBC shareholders to send their certificates to GEM. 

DBC notified shareholders that “[t]he DBC certificates will be 

copied, recorded and forwarded to legal counsel, . . . Nimmer[,] 

by our administrative division.”

On July 8, 2015, Nimmer emailed Noska to inform him 

that he, Nimmer, refused to surrender his DBC certificates. 

On November 12, Nimmer withdrew from his representation 

of DBC.

In an email dated November 15, 2015, GEM’s outside counsel, Abram Pafford, stated:

[I]f you want to send proposed stipulation language stating that GEM agrees to Nebraska as a forum for any 

litigation between itself and Nimmer Law Office, and that 

GEM agrees it is responsible for any legal fee invoices 

determined by a court to be owed by DBC to Nimmer 

Law Office, I will send it to the company and probably 

recommend that the Board agree to it.

My recommendation would be based on my understanding that without regard to corporate form, there have 

at least been verbal agreements and a course of dealing 

between GEM and Nimmer Law Office whereby GEM 

agreed to assume responsibility for the unpaid balance of 

legal fees owed by DBC to Nimmer Law Office.
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In an email from Pafford to Nimmer later that same day, 

Pafford stated:

Since you cannot be bothered with proposing stipulation language, and since you ignored my email indicating 

that I was authorized to act for the company on the limited issue of appropriate stipulation language, here is the 

language I would propose:

“The Parties stipulate that Nebraska is the proper venue 

for this litigation, and that the Nebraska courts can properly exercise personal jurisdiction over GEM.”

In a November 17 email, Pafford stated that “[GEM] has 

offered a stipulation that would cover the issues of Nebraska 

venue and successor liability for your legal fees in a straightforward manner. . . . If you choose to file suit without responding to the proposed stipulation that is up to you . . . .”

After the parties failed to reach a settlement, Nimmer, acting 

pro se, filed claims of breach of contract for failing to repurchase Nimmer’s 584,500 DBC common shares and sought the 

value of those shares based upon a share price at the time of 

the merger.

2. Procedural Back

On October 28, 2016, Nimmer filed a verified amended 

complaint. In his amended complaint, Nimmer alleged that 

GEM is the successor of DBC and that thus, DBC’s actions 

are ascribable to GEM for purposes of personal jurisdiction, 

because (1) Nimmer’s monthly billing statements for legal 

representation were addressed to “‘DBC and Affiliates’” and 

later to “‘GEM/DBC and Affiliates’” and sent to the same 

persons; (2) DBC stated to Nimmer that it would merge with 

GEM and that GEM would automatically acquire DBC’s assets 

and would remain responsible for DBC’s financial obligations; 

(3) GEM changed plans to instead cause a share-for-share 

exchange, after which DBC would be dissolved; (4) the April 

1, 2015, letter from GEM to DBC shareholders requested 

DBC shareholders to surrender DBC stock certificates to GEM 

which would be forwarded to Nimmer as GEM’s legal counsel; 
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(5) Nimmer demanded cash legal fees and DBC common 

shares upon resigning from further representation of GEM, and 

GEM agreed to a payment plan of legal fees but Nimmer has 

not agreed to a share repurchase plan; (6) GEM’s legal counsel stipulated to a Nebraska venue in an email to Nimmer; (7) 

both entities have been under common control because there 

is substantial overlap among DBC’s former owners, management, attorneys, accountants, agents, and consultants and those 

in GEM; (8) GEM has admitted that it is DBC’s successor in 

interest in (a) early GEM shareholder updates sent to DBC 

shareholders by Noska, “an officer/director of both DBC and 

GEM, on behalf of GEM from a GEM e-mail account e-mailed 

DBC shareholders,” and once referred to “‘DBC and now 

[GEM] Investors,’” and once stated in the subject line “‘[GEM] 

(formerly DBC) Sept 26 2012 update,’” (b) an April 1, 2015, 

email sent by GEM to DBC shareholders requiring that they 

exchange DBC shares for GEM shares, and (c) a November 13, 

2015, screenshot of GEM’s website in which GEM describes 

its beginnings as involving “digital wireless television systems 

and FCC bandwidth licenses,” which is what DBC and its 

affiliates had done and not what GEM did; (9) Nerlinger controlled both DBC and GEM by (a) recommending all officer 

and board member candidates to Silver, who then appointed 

those candidates, (b) directing the current GEM “initial public 

offering” process, (c) directing significant changes to DBC’s 

and GEM’s business models, (d) directing day-to-day operations, (e) attending and directing board of directors meetings, 

(f) conducting conference calls for investors, (g) negotiating 

and consummating contracts that were signed by other officers 

and directors, (h) receiving substantial equity ownership, (i) 

claiming in agreements disclosed in litigation that he is the 

founder of GEM, (j) “‘cherry pick[ing]’” which GEM shareholders received updates about GEM, (k) serving as Nimmer’s 

primary point of contact for legal representation of DBC and 

GEM, and (l) routinely exceeding his scope as a consultant to 

GEM; (10) Nimmer provided legal representation to one of 

DBC’s affiliates, Sky Cable, which had its former home offices 
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in Omaha commencing in 1995 until Sky Cable’s dissolution; 

(11) for the duration of Nimmer’s representation of DBC and 

GEM, DBC and GEM have issued and sold their own securities 

and have substantially overlapping management as is apparent 

from their public filings; (12) a February 5, 2002, fee agreement between Nimmer and DBC provided that “‘venue for 

all fee matters will continue to be conferred specifically upon 

Nebraska’”; (13) the February 5, 2002, and June 24, 2008, fee 

agreements between Nimmer and DBC provided that venue 

was proper in Nebraska and that the laws of Nebraska applied; 

(14) DBC expressly admitted in previous litigation that while 

it was a Delaware corporation with its home offices in New 

York, it conducts business in Nebraska; (15) Nimmer provided 

litigation and nonlitigation services for DBC in Nebraska; and 

(16) Nerlinger made several trips to Nebraska related to legal 

services provided by Nimmer.

Nimmer also contended that GEM’s actions, standing alone, 

confer personal jurisdiction, because (1) GEM’s retention of 

Nimmer as legal counsel from May 2012 until November 

2015 constituted sufficient minimum contacts; (2) GEM’s 

legal counsel stipulated to a Nebraska venue in response to 

Nimmer’s demands for cash payment for legal fees; and (3) 

Nimmer’s claims of tortious conversion and violation of the 

Uniform Deceptive Trade Practices Act constitute tortious acts 

by GEM that are intentional, directed at Nebraska, and knowingly cause harm to Nimmer in Nebraska, thereby constituting 

sufficient specific minimum contacts with Nebraska.

On January 12, 2017, the district court granted GEM’s 

motion to dismiss, finding that the court lacked personal 

jurisdiction over GEM.2 The court noted that the “factual 

allegations on which [Nimmer] relies include contacts from 

15 to 20 years ago, a forum selection clause from a 2008 

fee agreement between [Nimmer] and DBC, and the fact that 

[Nimmer] had provided legal services to GEM,” and that such 

2 See Neb. Ct. R. Pldg. § 6-1112(b)(2). See, generally, § 6-1112(b).
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was insufficient to constitute the requisite minimum contacts 

between GEM and Nebraska. Nimmer appeals.

III. ASSIGNMENTS OF ERROR

Nimmer assigns, restated, that the trial court erred in (1) 

finding that Nebraska did not have personal jurisdiction over 

GEM and (2) dismissing Nimmer’s complaint with prejudice.

IV. STANDARD OF REVIEW

[1,2] When a jurisdictional question does not involve a factual dispute, the issue is a matter of law. An appellate court 

reviews questions of law independently of the lower court’s 

conclusion.3 When reviewing an order dismissing a party from 

a case for lack of personal jurisdiction under § 6-1112(b)(2), 

an appellate court examines the question of whether the nonmoving party has established a prima facie case of personal 

jurisdiction de novo.4

[3] In reviewing the grant of a motion to dismiss, an appellate court must look at the facts in the light most favorable to 

the nonmoving party and resolve all factual conflicts in favor 

of that party.5

V. ANALYSIS

[4,5] Nimmer argues that the district court erred in finding that the court lacked personal jurisdiction over GEM. 

Personal jurisdiction is the power of a tribunal to subject and 

bind a particular entity to its decisions.6 Before a court can 

exercise personal jurisdiction over a nonresident defendant, 

the court must determine, first, whether the long-arm statute 

is satisfied and, if the long-arm statute is satisfied, second, 

whether minimum contacts exist between the defendant and 

3 S.L. v. Steven L., 274 Neb. 646, 742 N.W.2d 734 (2007).

4 VKGS v. Planet Bingo, 285 Neb. 599, 828 N.W.2d 168 (2013).

5 RFD-TV v. WildOpenWest Finance, 288 Neb. 318, 849 N.W.2d 107 (2014).

6 In re Petition of SID No. 1, 270 Neb. 856, 708 N.W.2d 809 (2006).
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the forum state for personal jurisdiction over the defendant 

without offending due process.7

On appeal, Nimmer makes three primary arguments regarding personal jurisdiction. Nimmer first argues that specific personal jurisdiction exists over GEM because of GEM’s tortious 

conversion and the Uniform Deceptive Trade Practices Act 

claims. Nimmer also argues that general personal jurisdiction exists over GEM because of Nimmer’s provision of legal 

advice to GEM. Alternatively, Nimmer argues that general 

personal jurisdiction exists over GEM due to the actions of 

GEM’s “alter ego predecessor DBC.”8

1. Long-Arm St

[6] Nebraska’s long-arm statute, Neb. Rev. Stat. § 25-536 

(Reissue 2016), extends Nebraska’s jurisdiction over nonresidents having any contact with or maintaining any relation to 

this state as far as the U.S. Constitution permits.9 Therefore, the 

issue is whether GEM had sufficient contacts with Nebraska so 

that the exercise of personal jurisdiction would not offend federal principles of due process.10

2. Minimum Cont

[7-9] If the long-arm statute has been satisfied, a court must 

then determine whether minimum contacts exist between the 

defendant and the forum state for personal jurisdiction over 

the defendant without offending due process.11 The benchmark for determining if the exercise of personal jurisdiction 

satisfies due process is whether the defendant’s minimum 

contacts with the forum state are such that the defendant 

should reasonably anticipate being haled into court there.12

7 S.L. v. Steven L., supra note 3.

8 Brief for appellant at 14.

9 VKGS v. Planet Bingo, supra note 4.

10 See Erickson v. U-Haul Internat., 274 Neb. 236, 738 N.W.2d 453 (2007).

11 Id.

12 Id.
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Due process for personal jurisdiction over a nonresident 

defendant requires that the defendant’s minimum contacts 

with the forum state be such that “‘maintenance of the suit 

does not offend “traditional notions of fair play and substantial justice.”’”13

[10-12] In analyzing personal jurisdiction, we consider the 

quality and type of the defendant’s activities to decide whether 

the defendant has the necessary minimum contacts with the 

forum state to satisfy due process.14 Whether a forum state 

court has personal jurisdiction over a nonresident defendant 

depends on whether the defendant’s actions created substantial 

connections with the forum state, resulting in the defendant’s 

purposeful availment of the forum state’s benefits and protections.15 The “purposeful availment” requirement “‘ensures 

that a defendant will not be haled into a jurisdiction solely as 

a result of “random,” “fortuitous,” or “attenuated” contacts 

. . . or of the “unilateral activity of another party or a third 

person.”’”16 Jurisdiction is proper, however, where the contacts proximately result from actions by the defendant himself 

or herself that create a “‘“substantial connection”’” with the 

forum state.17

[13-15] A court exercises two types of personal jurisdiction 

depending upon the facts and circumstances of the case: general personal jurisdiction or specific personal jurisdiction.18 To 

satisfy general personal jurisdiction, the plaintiff’s claim does 

not have to arise directly out of the defendant’s contacts with 

the forum state if the defendant has engaged in “‘“continuous 

and systematic general business contacts”’” with the forum 

13 Quality Pork Internat. v. Rupari Food Servs., 267 Neb. 474, 481, 675 

N.W.2d 642, 649 (2004), quoting Internat. Shoe Co. v. Washington, 326 

U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945).

14 S.L. v. Steven L., supra note 3.

15 Erickson v. U-Haul Internat., supra note 10.

16 S.L. v. Steven L., supra note 3, 274 Neb. at 653, 742 N.W.2d at 741.

17 Id.

18 Erickson v. U-Haul Internat., supra note 10.
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state.19 If the defendant’s contacts are neither substantial nor 

continuous and systematic, but the cause of action arises out of 

or is related to the defendant’s contact with the forum, a court 

may assert specific jurisdiction over the defendant, depending 

on the quality and nature of such contact.20

(a) Specific Personal Jurisdiction Over GEM

Nimmer first argues that because his claims of tortious conversion and violation of the Uniform Deceptive Trade Practices 

Act are intentional torts, specific personal jurisdiction over 

GEM exists. GEM contends that Nimmer has cited no authority 

to support his assertions, nor does GEM have any meaningful 

contacts with Nebraska; thus, GEM is not subject to specific 

personal jurisdiction.

Nimmer cites to Neb. Rev. Stat. § 8-1112 (Reissue 2012), 

which states:

Registering as a broker-dealer, issuer-dealer, agent, 

investment adviser, or investment adviser representative 

under the Securities Act of Nebraska or directly or indirectly offering a security or investment adviser services in 

this state shall constitute sufficient contact with this state 

for the exercise of personal jurisdiction over such a person in any action which arises under the act.

Nimmer relies heavily on Abdouch v. Lopez.

21 In Abdouch, 

the plaintiff filed suit against an out-of-state defendant and 

his company because the defendant attempted to sell a book 

through his company’s website, which the plaintiff contended 

was a violation of her privacy rights. To determine whether 

specific personal jurisdiction in Nebraska existed over the 

company based on the online advertisement for the book, 

this court, in Abdouch, applied the test set forth by the U.S. 

Supreme Court in Calder v. Jones22:

19 Id. at 249, 738 N.W.2d at 464.

20 S.L. v. Steven L., supra note 3.

21 Abdouch v. Lopez, 285 Neb. 718, 829 N.W.2d 662 (2013).

22 Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984).
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“‘[A] defendant’s tortious acts can serve as a source 

of personal jurisdiction only where the plaintiff makes 

a prima facie showing that the defendant’s acts (1) were 

intentional, (2) were uniquely or expressly aimed at the 

forum state, and (3) caused harm, the brunt of which was 

suffered—and which the defendant knew was likely to be 

suffered—[in the forum state].’”23

This court then quoted the Eighth Circuit Court, which 

held that it “‘construe[s] the Calder effects test narrowly, and 

hold[s] that, absent additional contacts, mere effects in the 

forum state are insufficient to confer personal jurisdiction.’”24

We accordingly held that the plaintiff failed to prove that 

Nebraska residents were targeted with the advertisement, 

because the advertisement did not “expressly direct its offer 

of sale to Nebraska.”25 We further explained that “the mention of Nebraska here is incidental and was not included for 

the purposes of having the consequences felt in Nebraska.”26

Furthermore, in response to the plaintiff’s contention that she 

had a representative contact the defendant with her objection to his commercial use of her name and identity in his 

advertisement, this court emphasized that “‘“it is essential in 

each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities 

within the forum State, thus invoking the benefits and protections of its laws.”’”27

In RFD-TV v. WildOpenWest Finance,

28 we addressed personal jurisdiction based on the enforceability of the arbitration clause in a contract. RFD-TV, LLC (RFD), a Nebraska 

23 Abdouch v. Lopez, supra note 21, 285 Neb. at 731, 829 N.W.2d at 674.

24 Id. at 732, 829 N.W.2d at 675.

25 Id. at 733, 829 N.W.2d at 675.

26 Id.

27 Id. at 734, 829 N.W.2d at 676 (emphasis in original), quoting Burger King 

Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174, 85 L. Ed. 2d 528 

(1985).

28 RFD-TV v. WildOpenWest Finance, supra note 5.
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corporation, entered into an agreement with Sunflower 

Broadband Corporation (Sunflower) in which the parties agreed, among other things, to arbitration in Nebraska. 

Knology, Inc., a television provider, purchased the assets of 

Sunflower. Knology then became a wholly owned subsidiary of 

WOW! Cable (WOW). We found that RFD had “failed to make 

a prima facie case that [WOW and Knology] were subject to 

the arbitration clause.”29 We explained that WOW and Knology 

“were not signatories to the Sunflower Agreement” and that 

they “did not expressly assume the agreement when they 

purchased Sunflower’s assets.”30 Furthermore, we addressed 

whether Nebraska had personal jurisdiction over WOW and 

Knology. We stated:

Parties who reach out beyond one state and create 

continuing relationships and obligations with citizens of 

another state are subject to regulation and sanctions in 

the other state for the consequences of their activities. 

Mail and telephone communications sent by a defendant 

into a forum may count toward the minimum contacts 

that support jurisdiction, but, as we noted in Kugler Co. 

v. Growth Products Ltd., [265 Neb. 505, 658 N.W.2d 

40 (2003),] the existence of a contract with a party in a 

forum state or the mere use of interstate facilities, such 

as telephones and mail, does not, in and of itself, provide 

the necessary contacts for personal jurisdiction. In Kugler 

Co., we said we would also look at the prior negotiations 

between the parties and the contemplated consequences of 

their dealings.31

Accordingly, we held that while WOW and Knology paid 

licensing fees to a party in Nebraska, occasionally used telephone, email, and mail to discuss and pay invoices from RFD 

over the course of 2 years, actual business dealings between 

RFD and WOW and Knology were “extremely limited,” 

29 Id. at 327, 849 N.W.2d at 115.

30 Id.

31 Id. at 328, 849 N.W.2d at 115-16.
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because WOW and Knology “paid to provide services based on 

terms negotiated by other parties.”32 Therefore, we dismissed 

the complaint for lack of personal jurisdiction.

Nimmer contends that GEM’s tortious conversion and violation of the Uniform Deceptive Trade Practices Act were both a 

result of DBC’s decision to do a share-for-share exchange with 

GEM rather than the initially agreed-upon statutory merger. 

Nimmer argues that this alleged deception gave shareholders, 

who had received the DBC shares on a tax-deferred basis, 

two unappealing options upon exchange: pay taxes on GEM 

shares or receive substitute GEM shares with lesser rights. 

Nimmer alleges that the tortious conversion and violation 

of the Uniform Deceptive Trade Practices Act were tortious 

acts by GEM that were intentional and directed at Nimmer 

in Nebraska, thereby constituting sufficient specific minimum 

contacts with Nebraska. Nimmer directs us to an April 1, 2015, 

“Dear Shareholder” letter from GEM and a June 4, 2015, email 

from GEM requesting Nimmer to sign the restricted stock 

award agreement as support for his contention that the contacts 

were directed at Nebraska.

We disagree that Abdouch is helpful to Nimmer’s position. 

In Abdouch, we construed the Calder effects test33 narrowly. 

In determining whether the plaintiff sufficiently alleged that 

the defendant’s tortious acts were “‘“uniquely or expressly 

aimed”’ at the forum state,” this court found that the plaintiff 

did not make a prima facie showing, because she had failed 

to demonstrate “an intent to target and focus on Nebraska 

residents.”34 We find similarly here.

The April 1, 2015, letter was a generic email letter sent to 

all shareholders. As in Abdouch, Nimmer failed to demonstrate 

that GEM “had an intent to target and focus on Nebraska 

residents” with this generic email letter. Furthermore, this 

email letter indicates merely that GEM used Nimmer as 

32 Id. at 328, 849 N.W.2d at 116.

33 See Calder v. Jones, supra note 22.

34 Abdouch v. Lopez, supra note 21, 285 Neb. at 734, 829 N.W.2d at 675-76.
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legal counsel and sent Nimmer a generic shareholder letter. 

Similar to the parties in RFD-TV, paying fees to a party in 

Nebraska, “occasionally us[ing] telephone, e-mail, and mail to 

discuss and pay invoices from RFD over the course of” several years is not sufficient when actual business dealings are 

“extremely limited.”35

Nimmer has provided no other proof of his business dealings with GEM to supplement this correspondence, nor has 

Nimmer demonstrated how any tortious consequences of this 

letter were felt in Nebraska. In Nimmer’s fee arrangement letters with DBC, he explains that he has a New York satellite 

office from which he also transacts business as a New York 

licensed attorney. Therefore, as in Abdouch, any impact upon 

Nimmer as a resident of Nebraska was “incidental.”36 This 

letter provides no basis in finding that GEM “‘“purposefully 

avail[ed] itself of the privilege of conducting activities”’” 

within Nebraska.37

We turn next to the June 4, 2015, email. We find that this 

email also does not serve as a basis for recovery for either 

tort claim. In contrast, we observe that this thread of emails 

provides a basis to find that GEM disclosed the change from 

a statutory merger to a share-for-share exchange and that 

Nimmer simply declined to sign the restricted stock agreement 

after being requested to do so. Therefore, Nimmer has failed 

to plead facts that demonstrate the cause of action for the 

tortious claims arising out of or related to GEM’s June 4 email 

to Nimmer.

Finally, Nimmer does not explain how § 8-1112 is applicable to his claims. Nimmer merely states in his propositions 

of law that the offering of securities constitutes sufficient 

minimum contacts. He has not indicated that GEM is a registered broker-dealer in Nebraska or that GEM has “directly or 

35 See RFD-TV v. WildOpenWest Finance, supra note 5, 288 Neb. at 328, 849 

N.W.2d at 116.

36 See Abdouch v. Lopez, supra note 21, 285 Neb. at 733, 829 N.W.2d at 675.

37 Id. at 734, 829 N.W.2d at 676 (emphasis omitted).
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indirectly offer[ed] a security or investment adviser services” 

in Nebraska.38 Nimmer has not established specific personal 

jurisdiction over GEM based solely based on tortious conduct 

directed at Nebraska.

(b) Continued Retention of Nimmer

Nimmer next argues that GEM’s continued retention of 

Nimmer for “transactional legal work from his Nebraska office 

constitutes sufficient minimum contacts with Nebraska to confer personal jurisdiction over GEM.”39 GEM argues that it “has 

never done business in Nebraska and has never had any meaningful operational or jurisdictional contacts of any kind within 

the state.”40

In Burger King Corp. v. Rudzewicz,

41 a leading case on the 

issue of personal jurisdiction, the U.S. Supreme Court held 

that an individual’s contract with an out-of-state party alone 

cannot “automatically establish sufficient minimum contacts 

in the other party’s home forum.”42 Instead, the Court stated 

that courts must look at “prior negotiations and contemplated 

future consequences, along with the terms of the contract and 

the parties’ actual course of dealing” to determine whether the 

defendant purposefully established minimum contacts within 

the forum.43

Under this test, then, we must look to the terms of the contract and the parties’ “actual course of dealing” to determine 

whether the defendant purposefully established minimum contacts within the forum.44 In determining whether the legal services established minimum contacts in the forum, we analyze 

38 See § 8-1112.

39 Brief for appellant at 16.

40 Brief for appellee at 13.

41 Burger King Corp. v. Rudzewicz, supra note 27.

42 Id., 471 U.S. at 478.

43 Id., 471 U.S. at 479.

44 See id.
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the “prior negotiations and contemplated future consequences” 

of the relationship of the two parties.45

Thompson Hine, LLP v. Taieb,

46 is relevant to this inquiry. 

In this case, the D.C. Circuit Court held that Washington, 

D.C., did not have personal jurisdiction over a Florida resident who retained lawyers in an Ohio law firm’s Washington, 

D.C., office to represent him in a matter pending in Oregon. 

The court reasoned that “[a] non-resident’s mere retention of a 

D.C.-based service provider, absent any other deliberate contact with the forum—demonstrated either by the terms of the 

contract itself or by the non-resident’s actual dealings with the 

District—cannot qualify as a ‘minimum contact.’”47

Nimmer is correct that while a contract alone does not 

establish minimum contacts, the establishment of a continuing 

relationship with obligations to the instate party could. But 

no contract between Nimmer and GEM exists in the record. 

Instead, Nimmer implies a contract by stating that GEM 

retained and utilized him for legal services from May 2012 

until November 2015, and thereafter settled Nimmer’s cash 

claim for legal fees.

Nimmer asserts in his amended complaint and brief that he 

represented GEM “from GEM’s inception on May 12, 2012 

without interruption until November 12, 2015.” Nimmer further argues on appeal that his legal representation of GEM was 

composed of “legal advice, transactional work, securities law 

compliance, and legal advice regarding litigation.”48 It appears 

from Nimmer’s amended complaint that he advised GEM on 

the disclosures for GEM’s filings from 2013 through 2015. 

It also appears that Nimmer acted as legal counsel for GEM 

in anticipation of the statutory merger based on the “Dear 

Shareholder” letter, which states that Nimmer would receive 

45 See id.

46 Thompson Hine, LLP v. Taieb, 734 F.3d 1187 (D.C. Cir. 2013).

47 Id. at 1194.

48 Brief for appellant at 12.
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and record the DBC certificates. But, it is unclear from the 

record whether Nimmer performed this service, because he 

later emailed GEM stating that he did not receive any certificates. It is also unclear whether this service was for GEM or 

DBC. Thus, we are not persuaded that Nimmer has met his 

burden to show that any contract between himself and GEM 

was sufficient to support a finding of personal jurisdiction.

In this type of personal jurisdiction inquiry, courts also 

consider the timeframe of the alleged contacts. In Johnson v. 

Woodcock,

49 the Eighth Circuit held that “‘[m]inimum 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,’” and 

found that the contacts in that case, which occurred in the 

1960’s to 1980’s, were not within a reasonable timeframe. 

The court additionally found that occasional correspondence 

between the parties was too attenuated to support a finding of 

personal jurisdiction.

Nimmer claims that he provided representation for Sky 

Cable, an affiliate of DBC located in Omaha. But by Nimmer’s 

own admission, that representation occurred over 20 years 

ago and did not involve GEM. We conclude that the contacts 

between the forum state and Sky Cable are not within a reasonable timeframe of the current allegations and thus are not 

supportive of a finding of personal jurisdiction.

Nimmer has not shown that a substantial relationship 

existed between GEM and the forum state based on the legal 

services Nimmer provided to GEM. We agree with GEM that 

Nimmer has not provided any details as to whether his legal 

work for GEM pertained to disputes involving Nebraska, 

issues arising under Nebraska law, or any connection beyond 

the Nebraska location of one of his offices. As such, Nimmer 

provides no basis for an understanding of any services rendered to GEM in Nebraska. None of these contacts are such 

that GEM should reasonably anticipate being haled into 

49 Johnson v. Woodcock, 444 F.3d 953, 956 (8th Cir. 2006).
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court in Nebraska. We find Nimmer’s argument to be without merit.

(c) General Personal Jurisdiction Over 

GEM—DBC’s Alter Ego

Nimmer contends that “it is proper to ascribe the actions of 

[GEM’s] alter ego predecessor DBC to GEM for general jurisdiction minimum contacts analysis.”50 In addition to the extensive list of reasons in Nimmer’s amended complaint that GEM 

is DBC’s predecessor, Nimmer contends in his brief that GEM 

is DBC’s alter ego because (1) GEM was a creation of DBC for 

purposes of reincorporation in Delaware and a name change; 

(2) the ownership and management of GEM is the same as 

those of the former DBC, primarily through Nerlinger’s sole 

control of each; and (3) GEM has made numerous admissions 

to DBC and GEM shareholders, and others, that GEM is a 

mere continuation of DBC.

Nimmer cites several cases to illustrate that courts have 

found successor corporations liable for the actions of a parent 

corporation based on the theories of corporate successor liability and contractual successor liability.51 Nimmer contends that 

this court should apply those theories when ascribing minimum 

contacts for personal jurisdiction.

In support of Nimmer’s argument for application of contractual successor liability to personal jurisdiction, Nimmer 

cites the Delaware Superior Court unpublished case Universal 

Capital Mgmt., Inc. v. Micco World, Inc.52 In that case, the 

plaintiff entered into two contracts with a corporation which 

later merged into the defendant corporation. The two contracts 

stated that they were binding on the parties and their respective 

50 Brief for appellant at 16.

51 See, Pallas Shipping Agency, Ltd. v. Duris, 461 U.S. 529, 103 S. Ct. 1991, 

76 L. Ed. 2d 120 (1983); Earl v. Priority Key Servs., 232 Neb. 584, 441 

N.W.2d 610 (1989).

52 Universal Capital Mgmt., Inc. v. Micco World, Inc., No. 10C-07-039 RRC, 

2011 WL 2347612 (Del. Super. June 2, 2011) (unpublished opinion).
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successors. The court acknowledged that the corporate merger 

alone was insufficient to establish personal jurisdiction.53 But 

the court looked at the defendant corporation’s conduct and 

found that because it continued to operate under the terms of 

the contracts, personal jurisdiction existed.

Nimmer also cites Clune v. Alimak AB,

54 in which the 

Eighth Circuit found in a wrongful death action that personal 

jurisdiction existed over a parent corporation of a subsidiary 

that distributed a defective product. The court held that the 

contacts of the parent company and subsidiary were sufficient 

to establish minimum contacts in the forum state. The court 

emphasized that the parent company was a shell corporation 

that had no employees or products to sell.55 We find that neither of these cases are persuasive under the facts of this case. 

Contrary to Nimmer’s assertion, Universal Capital Mgmt., 

Inc. does not support the proposition that similar to successor 

contractual liability, a predecessor’s contacts may be ascribed 

to its successor for personal jurisdiction. Instead, the court 

made clear that for purposes of personal jurisdiction, the court 

must analyze the contacts of the defendant corporation “in its 

own right,” and whether it “continued to operate under the 

terms of the two contracts,” causing injury in the forum state.56

Furthermore, unlike in Clune, DBC is not the parent corporation of GEM, nor is GEM a shell company for purposes of 

DBC’s liability. Therefore, the analysis in Clune is not relevant 

under these facts.

Instead, we find Ashby v. State,

57 to be persuasive. In Ashby, 

we refused to extend a coconspirator liability theory to minimum contacts for purposes of establishing personal jurisdiction. We declined to reach the issue, noting:

53 Id.

54 Clune v. Alimak AB, 233 F.3d 538 (8th Cir. 2000).

55 Id.

56 Universal Capital Mgmt., Inc. v. Micco World, Inc., supra note 52, 2011 

WL 2347612 at *5.

57 Ashby v. State, 279 Neb. 509, 779 N.W.2d 343 (2010).
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Due process for personal jurisdiction over a nonresident 

defendant requires that the plaintiff allege specific acts 

by the defendant which establish that the defendant had 

the necessary minimum contacts before a Nebraska court 

can exercise jurisdiction over a person. Without minimum 

contacts, a Nebraska court cannot exercise jurisdiction 

over [the defendant] without violating his right to due 

process. The difficulty with establishing personal jurisdiction based on an alleged conspiracy is that it merges the 

jurisdiction issue with the merits of the case.58

We do not revisit this decision. As such, we decline Nimmer’s 

invitation to incorporate successor liability and contractual successor liability for minimum contacts for purposes of personal 

jurisdiction under these facts.

Finally, we reject Nimmer’s assertion that GEM’s legal 

counsel stipulated to Nebraska venue. In support of this contention, Nimmer relies on emails sent to him from Pafford. 

These emails include discussions for a proposed settlement 

upon Nimmer’s withdrawal from legal representation. There is 

no indication that Nimmer accepted this offer. That the dispute 

was not settled prior to trial provides a basis for this court to 

find that Nimmer did not accept GEM’s proposed settlement.

As established above, accepting Nimmer’s allegations as true 

and reviewing the record in a light most favorable to Nimmer, 

we find that Nimmer’s amended complaint and general allegations failed to show that GEM made substantial connections 

with Nebraska resulting in GEM’s purposeful availment of 

Nebraska’s benefits and protections. Nimmer’s assignment of 

error is without merit.

(d) Whether District Court Erred in 

Dismissing Nimmer’s Complaint 

With Prejudice

Nimmer argues that the district court erred in dismissing 

his complaint with prejudice. GEM argues that a dismissal 

58 Id. at 532, 779 N.W.2d at 360-61.
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with prejudice was appropriate because “Nimmer was given a 

chance to amend his complaint, and after full briefing on this 

amended complaint, the district court entered its order of dismissal with prejudice.”59

In support of his argument, Nimmer cites RFD-TV v. 

WildOpenWest Finance,

60 in which RFD asserted that the 

district court erred in dismissing the case with prejudice. 

We stated:

There is no statutory grant of judicial discretion to 

decide whether to dismiss with or without prejudice on a 

motion to dismiss for lack of personal jurisdiction. Thus, 

we find this issue to be a question of law. The Eighth 

Circuit has said that “a dismissal with prejudice operates as a rejection of the plaintiff’s claims on the merits 

and res judicata precludes further litigation.” However, 

the Full Faith and Credit Clause of the U.S. Constitution 

requires a court to recognize a judgment from another 

jurisdiction only if the court rendering the judgment had 

jurisdiction over the subject matter and parties. Thus, a 

dismissal for lack of personal jurisdiction, even a dismissal with prejudice, should not prevent RFD from pursuing its claims in an appropriate forum.

On the other hand, a dismissal with prejudice would 

preclude RFD from filing a second suit with the same 

claims in a Nebraska court. . . . However, as noted by 

the Eighth Circuit in Pohlmann v. Bil-Jax, Inc., [176 F.3d 

1110 (8th Cir. 1999),] because personal jurisdiction is 

determined at the time a suit is commenced, it is possible 

that due to future events, this legal situation could change. 

Although it seems unlikely under the facts of this case, if, 

for example, appellees were to relocate to Nebraska, then 

personal jurisdiction over appellees in a subsequent suit 

could be proper in this state.

59 Brief for appellee at 27.

60 RFD-TV v. WildOpenWest Finance, supra note 5.
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We also note that in this case, both parties agreed in 

briefs and in arguments before this court that the dismissal should have been without prejudice.61

For these reasons, we reversed the district court’s opinion and 

modified the order to a dismissal without prejudice.

We agree that generally a trial court’s dismissal of a claim 

for lack of personal jurisdiction must be without prejudice. 

This follows from the premise that a court lacking jurisdiction 

cannot adjudicate the merits of a claim.62 Here, as in RFD-TV, 

it is possible that personal jurisdiction could be found in a 

subsequent lawsuit. But that does not mean that a dismissal 

for lack of jurisdiction can never have preclusive effect. If 

a subsequent suit presented no different circumstances, the 

same result would necessarily follow. Thus, in that sense, the 

dismissal could be described as “with prejudice.” Generally 

speaking, it is better to adhere to the articulation of a dismissal 

without prejudice. For this reason, we find that the district 

court erred in dismissing the case with prejudice and its order 

is modified to a dismissal without prejudice.

VI. CONCLUSION

For the foregoing reasons, the decision of the district court 

is affirmed as modified.

Affirmed as modif

Wright, J., not participating in the decision

61 Id. at 329-30, 849 N.W.2d at 116-17.

62 Cf. 20 Am. Jur. 2d Courts § 53 (2015).