[Cite as Waldman v. Levien , 2023
- Ohio
- 1584.]

C ivil Appeal From: Hamil ton County Court of Common Pleas Judg ment Appealed From Is : Af f irmed Date of Judgment Entry on Appeal: May 12, 2023

Hennis Rothstein Ellis LLP a nd Stev en M. Rothstein , for P lain ti ff

- Appell ant , Kea ting Mueth ing & Klek amp , Steven C. C offar o and Paul R. Kerridge , for D ef endant

- Appel lee

.



## IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

LAWRENCE WALDMAN , P laintiff

- Appell ant ,
vs. JAN LEVIEN , Defendant

- Appell ee . :

:

:

:

: APPEAL NO. C

- 22 0 4 5 5 TRIAL NO. A

- 2201022

O P I N I O N

.O HIO F IRST D ISTRICT C OURT OF A PPEALS

2 W INKLER , Judge. 

### {¶1} Plaintiff

- appellant Lawrence Waldman filed a complaint against defendant

- appellee Jan Levien for intentional infliction of emotional distress. Th e trial c o urt granted Levien’s motion to dismiss for lack of jurisdiction. Waldman now appeals that judgment. We find no merit in his sole assignment of error, and we affirm the trial court’s judgment. 

### {¶2} The record shows that Levien is an attorney who resi des and p r act ices law in the state of New York. New York is the only state in which she is li censed to practice. Waldman is an Ohio resident. In October 2014, he loaned his son David Waldman and David’s wife $350,000 for a down payment on an apartment i n New Yo rk , w hich was memorialized in a promissory note signed by David and his wife. 

### {¶3} From Se ptember 28, 2021 , until December 17, 2021, Levien represented David in a divorce proceeding filed in New York. Levien stated that David was her client and that sh e ne ve r rep re sented any other member of the family. 

### {¶4} Waldman alleged that he “was in con tact with [Levien] in connection with a number of issues with respect to her representation” of David, including the treatment of the $350,000 loan. He further alleg ed tha t in No vember 2021, he had a telephone conversation with Levien, in which she stated that he “ should be prepared to abandon the loan under the theory that the funds had been ‘ converted ’ to marital property and were no longer a debt of the parties be c ause t hey w ou ld be needed to sustain David’s wife after the divorce. ” He added that Levien “made additional representations of supposed [New York] law to [Waldman] * * * that bore no reasonable relationship to the actual law that was applicable to the mat ter at hand .” Levien denied making those statements. 

### {¶5} Waldman alleged that Levien kne w or should have known that those statements were incorrect and that telling someone that he o r she had to abandon aO HIO F IRST D ISTRICT C OURT OF A PPEALS

3 $350,000 debt would cause serious emotional distress. He f urther a lle ged that Levien’s advice to him “was either intentionally misleading ” to pressure him and his son into concessions, that it was so “ recklessly made as to constitute intent, or was just simply made without due regard for its accuracy. ” Fina lly, he alleg ed that Levien’s “advice and representations * * * were committe d with the purpose” of injuring him, and that Levien “ should have reasonably expected that the representations would injure him. ” 

### {¶6} Levien filed a Civ.R. 12(B) motion to dis miss fo r lack o f per son al jurisdiction in which she argued that even if Waldman’s all egations were true, he failed to show that she had sufficient contact with the state of Ohio under Ohio’s long

- arm statute and the requirements of due process. The trial court g ranted L evien ’s motion to dismiss. This appeal followed. 

### {¶7} In his sole assignme nt of error, Waldman contends that the trial court erred by granting Levien’s motion to dismiss. He argues that the record before the trial court was sufficient to demons trate l ong - arm juris dic tion over Levien under R.C. 2307.382(A)(6) and that jurisdicti on in Ohio comported with the requirements of due process. This assignment of error is not well taken. 

### {¶8} Personal jurisdiction is an issue of law that we review de novo. Kauffm an Racin g Equ ip. , L.L.C. v. Roberts , 126 Ohio St.3d 81, 2010

- Ohio

- 2551, 930 N.E.2d 784, ¶ 27; Fern Exposition Servs., L.L.C. v. Lenhof , 1st Dist. Hamilton No. C

130791, 2014 - Ohio

- 3246, ¶ 9. Wh en a defendant moves to dismiss a c omplaint for lack of persona l juris dictio n, the pl aintiff bears the burden to establish that jurisdiction is proper. Kauffman Racing Equip. at ¶ 27; Fern Exposition Servs. at ¶ 9. When the trial court determines a Civ.R. 12( B)(2) motion to dismiss without an evidentiary hearing, th e plain tiff n eed only make a p rima facie showing of jurisdiction

. Fraley v. Estate of Oeding , 138 Ohio St.3d 250, 2014

- Ohio

- 452, 6 N.E.3d 9, ¶ 11; FernO HIO F IRST D ISTRICT C OURT OF A PPEALS

4 Exposition Ser v s. at ¶ 9. In making its determination, the cou rt must view allegations in the pleading s and t he doc umentary evidence in a light most favorable to the plaintiff and resolve competing inferences in favor of the plaintiff. Kauffman Racing Equip. at ¶ 27; N. Am. Software, Inc. v. James I. Black & Co. , 1s t Dist. Hamilton No. C

- 100696,

2011 - Ohio

- 3376, ¶ 11. 

### {¶9} Whether a n Ohio c ourt has personal jurisdiction over a nonresident defendant involves a two

- part inquiry. First, we must determine whether Ohio’s long

arm statute, R.C. 2307.382 and its complementary ci vil rule, Civ.R. 4.3(A), confer jurisdic tion. If so, we must decide w hether the exercise of that jurisdiction would violate the defendant’s due

- process rights. Fern Exposition Servs . at ¶ 13; N. Am. Software at ¶ 12. 

### {¶10} Waldman relies on R.C. 2307.382(A)(6) , which provides that “[a] court
may exe rcise p ersona l jurisdi ction ov er a person who acts directly or by an agent, as to a cause of action arising from the person’s * * * [c]ausing tortious injury in this state to any person by an act outside this state committed with the purpose of injuring
pe rsons, when t he person might r easonably have expected that some person would be injured thereby in this state.” Thus, to invoke personal jurisdiction under that section, Waldman must show that Levien caused tortious injury in Ohio and that his cause of

a ction arose f

rom that tortious conduct. Fern Exposition Servs. at ¶ 14. 

### {¶11} Even construing all of Waldman’s allegations as true, the conduct alleged in th e complaint does not, as a matter of law, rise to the extreme and outrageous level necessary for a prima facie case o f intentional inf liction of emotional distress. S ee FAP Prop ertie s XL, LLC v. Griffin , 1st Dist. Hamilton No. C

- 210646,

2022 - Ohio

- 3410, ¶ 23

- 2 5; Mann v. Cincinnati Enquirer , 1st Dist. Hamilton No. C

090747, 2010 - Ohio

- 3963, ¶ 25

- 26. Waldman h as failed to demonstrate that Levi en engaged in tortious activity ou tside Ohio or that he suffered tortious injury in Ohio asO HIO F IRST D ISTRICT C OURT OF A PPEALS

5 a resul t . Therefore, R.C. 2307.382(A)(6) does not provide a basis for Ohio to assert j urisdi ction over Levien. 

### {¶12} Also, Ohio’s asser tion of juris diction over Levien d oes not compo rt with the requirements of due process. The Due Process Clause imposes a limitation on the authority of a state to assert jurisdiction over a nonresident defendant. Fern Exposition Servs. , 1st Dist. Hamilto n No. C

- 13079 1, 2014 - Ohio

- 3246, at ¶ 16, citing Walden v. Fiore , 571 U.S. 277, 283, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014). The United States Supreme Court has held that a state may only assert personal jurisdicti on ove r a nonresident defendant if the nonr esident has “ certain minimum conta cts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” N. Am. Software , 1st Dist. Hamilton No. C

- 100696, 2011

- Ohio

3376, at ¶ 20, quoting Internatl. Shoe Co. v. Washington , 326 U.S. 310, 316, 66 S.Ct

. 154, 90 L.Ed. 95 (1945). 

### {¶13} A state may exercise either general or specific jurisdiction, depending on the nature of the contacts that the defendant has with the fo rum st ate. Kauffman Racing Equip. , 126 Ohio St.3d 8 1, 2010 - Ohio

- 2551, 930 N.E.2d 784, at ¶ 46; N. Am. Software at ¶ 20. General jurisdiction is proper only where a defendant’s contacts with the forum state are of such a continuous and systemic nature that the state may exercise personal juris diction over the defendant even if the acti on is unre lated to the defendant’s contacts with the state. Kauffman Racing Equip. at ¶ 46; N. Am. Software at ¶ 20. For an individual, “the paradigm form for the exercise of gen eral jurisdiction is the individu al’s domicile [.]” Fern Exposition Servs. a t ¶ 19, qu oting Daimler AG v.
Bauman , 571 U.S. 117, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014). Waldman has not alleged any facts supporting the conclusion that Levien had sufficie nt c ontact with Ohio to render her “e ssentially at home” in Ohio and allow Ohio to have ge neral jurisdiction. See Fern Exposition Servs. at ¶ 19.O HIO F IRST D ISTRICT C OURT OF A PPEALS

6 

### {¶14} Specific jurisdiction applies when “a State exercises jurisdiction over a defendant in a suit arising out of or related to the defendant’s contac ts with the f orum.” N. Am. Software at ¶ 2 0, quoting Kauffman Racing Equip. at ¶ 47. A court may exercise specific jurisdiction over a n onresident if the defendant has “ purposely directed” his or her activities at residen ts of the forum state and the lit igation resul ts from the alleged injuries t hat “arise out of or relate to those activities.” Fern Exposition Servs. at ¶ 21, quoting Burger King Corp. v. Rudzewicz , 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) . In determining whet her exercis ing specific juri s diction is proper, the Oh io Supreme Court has adopted the three

- part test set forth in Southern Machine Co. v. Mahasco Industries, Inc. , 401 F.2d 374 (6th Cir.1968). Kauffman Racing Equip . at ¶ 5o. 

### {¶15} The first factor is whether the defenda nt purposely availed himself or herself of the privilege of acting in the forum state or causing a consequence in the forum state. Kauffman Racing Equip . at ¶ 51; N. Am. Software , 1st Dist. Hamilton No. C

- 100696, 201 1 - Ohio

- 3376, at ¶ 2 2. “Purposeful avai lment” is pre sent when the defendant’s cont acts with the forum state “proximately result from actions by the defendant himself that create a ‘substantial connection’ with the forum S tate. ” (Emphasis in original.) Kaufmann Racing Equip. at ¶ 51, quoting B urger King at 475 “The defendant’s conduc t and connection to the state must be such that he ‘should reasonably anticipate being haled into court there.’ ” Id. , quoting Burger King at 474. 

### {¶16} Waldman alleged that he was “in contact” with Levien regarding “a

n umber of issu es with respect to her repre sentation of [Waldman’s] son.” He does not specify the nature of the contacts. He claims that the tortious injury was the result of his phone call with Levien regarding the loan. But the use of interstate means o f communicati on such as the telephone or email does not, standing alone, constitute sufficient minimum contacts to make the exercise of jurisdiction appropriate. StarO HIO F IRST D ISTRICT C OURT OF A PPEALS

7 Seal of Ohio, Inc. v. Tri State Pavement Supplies, LLC , 10th D ist. Franklin No. 09AP

969 , 2010 - Ohio

- 2 324, ¶ 25; Barnabas Consulti ng Ltd. v. Riverside Health Sys., 10th Dis t
. Fra nklin No. 07AP

- 1014, 2008

- Ohio

- 3287, ¶ 20; Lak, Inc. v. Deer Creek Ent. , 885 F.2d 1293, 1301 (6th Cir.1989). 

### {¶17} Wald man failed to make even a prima facie cas e tha t Levie n purposely

a vailed he rself of the privilege of acting in Ohio. The purposeful

- availment requirement ensures that a defendant will not be haled into a jurisdiction solely because of “random, ” “ fortuitous, ” or “ attenuated contacts” or the “unilater a l activ ity of anothe r party o r third person.” Kauffman Racing Equip. , 126 Ohio St.3d 81, 20 1 0 - Ohio

- 2551, 930 N.E.2d 784, at ¶ 51; N. Am. Software , 1st Dist. Hamilton No. C

100696, 2011

- Ohio

- 3376, at ¶ 22. 

### {¶18} The se cond factor is whether the cause of actio n arose from the defe ndant’s a ctivities in the forum state. If a defendant’s contacts with the forum state are “related to the operative facts of the controversy, then an action will be deemed to have arisen from t hose contacts.” Kaufman Racing Equip. a t ¶ 70, q uoting Compus erve, Inc . v. Patterson , 89 F.3d 1257, 12 6 7 (6th Cir.1996). The action need not formally arise from the defendant ’ s contacts with the forum. They only need to have a substantial connection to the defendant’s in

- state activities. Id. ; Fern E xposition Ser vs. , 1st Dist. Hamilton No. C

- 130791, 201 4 - Ohio

- 3246, at ¶ 28. Arguably , Waldman satisfies this requirement because the alleged cause of action did have a substantial connection with the tel ephone cal l, but Waldman m us t satisfy all three
pro n gs of the te s t
. See K au fman Ra cing Equip. at ¶ 48; Cincinnati E quine, LLC v. Sandringham Farm, LL C, 1st Dis t. Hamilton No. C

- 150067, 2016

- Ohio

- 803, ¶ 14

. 

### {¶19} The third factor is whethe r t he acts of the nonresident defendant or consequences caused by the de fendant have a substan tial connection with the forum
state so as to make the exercise of jurisdiction reasonable. Kaufman Racing Equip. atO HIO F IRST D ISTRICT C OURT OF A PPEALS

8 ¶ 7 1; N. Am. Software at ¶ 25. This case pr ese nts the unusual situation where Ohio has little interest in resolving the dispute. See Fer n Exposition Servs. at ¶ 30. Due
process req uires that a defendant “not be compelled to defend himself in a court of a
state with which he has no relevant connection

. ” Id. at 32, quoting Southern Machine , 401 F.2d at 386, fn. 34. L ev ien had no relevant conn ection to the state of Ohio, an d Ohio ’ s a ssertion of jurisdiction would not comport with “fair play and substantial justice.” See Burger King Corp. , 471 U.S. at 47 6, 105 S.Ct. 2174, 85 L.Ed.2d 528; Greene v . Whiteside , 1 8 1 Ohio A pp.3d 253, 20 09 - Ohio

- 7 41, 908 N.E.2d 975, ¶ 17 (1st Dist.). 

### {¶20} Consequ ently, the trial court did not err in granting Levien’s motion to dismiss for lack of personal jurisdiction. W e overrule Waldman’s assignment of error and affirm t he trial court’s judgment

. Judgmen t a ffirmed.

B ERGERON , P. J . , and B OCK , J., concur . Ple ase n ote: The cour t has recorded its own entr y this date

.