UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ GUY HEFFINGTON, Plaintiff - Appellant,

v. PAMELA PULEO; FREDERICK G. SUNDHEIM, JR.; OUGHTERSON, SUNDHEIM & ASSOCIATES, P.A., Defendants - Appellees. No. 18-3034 (D.C. No. 6:17-CV -01192-EFM-KGG) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , Chief Judge, McKAY and MATHESON , Circuit Judges.

________________ _________________ Guy Heffington sued the defendant s for claims related to their handling of his grandmother’s estate. The distric t court dismissed his claims for lack of personal jurisdiction and denied Heffingt on’s motion to appoint counsel and his request for default judgment. We affirm.

* After examining the briefs and appellate record, this panel ha s determined unanimously to honor the parties ’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir . R. 34.1(G). The case is ther efore submitted without oral argument. T his order and judgment is no t binding precedent, except under the doctrines of la w of the case, res judicata, an d collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### October 12, 2018
Elisabeth A. Shumaker Clerk of Court2 I. Background Heffington is a lifelong Kansas r esident. His grandparents liv ed in New York until 1976, when they moved to Flo rida. With the help of Frede rick Sundheim, a Florida attorney, his grandparent s created a joint declaration of trust providing for the distribution of certain assets i n the event of their death. He ffington’s grandfather died in 2011. The following year , his grandmother moved back t o New York to live with her best friend and her fri end’s daughter, Pamela Puleo. Heffington’s grandmother (again with Sundheim ’s help) amended the trust to l eave her Florida condominium to Puleo and, later , to name Puleo her successor trustee. Aside from the condominium and a donation to the Southern Illinois Univers ity, the trust assets were to go to Heffington and his brother when they turned 30. Heffington’s grandmother died in 2017. Several months later, h e filed this lawsuit in the District of Kan sas alleging Puleo and Sundheim 1 stole trust property and breached their duties to Hef fington as a beneficiary. Spec ifically, he claimed (1) violations of his Fifth and Fourteenth Amendment rights, (2 ) breach of fiduciary duty, (3) negligence, and (4) c onversion. Puleo and Sundheim m oved to dismiss, arguing the district court lacked personal jurisdiction. The d istrict court agreed and dismissed Heffington’s claims. I t also denied Heffington’s mot ions for appointment of counsel and for default judgment against Puleo.

1 Heffington also named Sundheim’s law firm, Oughterson, Sundhei m & Associates, P.A., as a defendant . We refer to both Sundheim an d his firm as “Sundheim.”3 Heffington appeals. During the pendency of his appeal, Heffing ton has filed motions to supplement the reco rd, add defendants, and proceed w ithout prepayment of fees. II. Analysis Heffington argues the district c ourt erred by dismissing his cl aims because (A) it has personal jurisdicti on over the defendants and (B) hi s claims have merit. He also challenges (C) the districtcourt’s refusal to appoint cou nsel to represent him and (D) its order denying default j udgment against Puleo. We addre ss these arguments in turn, as well as (E) Heffi ngton’s pending motions. A. Personal Jurisdiction Heffington argues the district c ourt erred by concluding it lac ked personal jurisdiction over the defendants . Because Heffington failed to make a prima facie showing of personal jurisd iction, we see no error. We review the district court’s di smissal for lack of personal j urisdiction de novo. Old Republic Ins. Co. v. Cont’l Motors, Inc. , 877 F.3d 895, 903 (10th Cir. 2017). To overcome the defendants’ motions to dismiss, Heffing ton must make a prima facie showing of p ersonal jurisdiction. Id

. “The law of the forum state a nd constitutional due process limi tations govern personal jurisdiction in federal court.” Id . Kansas’ long-arm statute supports personal jurisdiction to the ext ent constitutionally permitted, so we must determine whether the exercise of persona l jurisdiction satisfies due pro cess. Marcus Food Co. v. DiPanfilo , 671 F.3d 1159, 1166 (10th Cir. 2011).4 Two types of personal jurisdic tion satisfy due p rocess: genera l jurisdiction and specific jurisdiction. Bristol-Myers Squibb Co. v. Superior Court of Cal. , 137 S. Ct. 1773, 1779-80 (2017) . “A court with general jurisdi ction may hear any claim against that defendant, eve n if all the incidents underly ing the claim occurred in a different state.” Id . at 1780 (emphasis omitted) . In contrast, a court may exercise specific jurisdiction “ only if the cause of action rel ates to the party’s contacts with the forum state.” Old Republic Ins. Co. , 877 F.3d at 904. To prove the district court has general jurisdiction, Heffingto n must show the defendants’ affiliations with Kan sas are “so continuous and sys tematic as to render them essentially at home” there. Goodyear Dunlop Tires Operations, S.A. v. Brown , 564 U.S. 915, 919 (2011) (inter nal quotation marks omitted). H effington acknowledges in his amended compla int that Puleo is a New York resident, Sundheim is a Florida resident w hose primary place of business is Florida, and Sundheim’s law firm is located i n Florida. And as the district court recognized, Heffington does not allege any of t he defendants has ever been to Kansas, conducted business in Kansas, or had cont act with anyone in Kansas other than his immediate family. We therefore agree with the district court that Heffin gton failed to show it has general jurisdiction over the defendants. Nevertheless, the district cour t has specific jurisdiction over the defendants if Heffington proves they have “m inimum contacts” with Kansas. Old Republic Ins.
Co. , 877 F.3d at 904. This requires him to show (1) the defendant s “purposefully directed [their] activities at [ Kansas] residents” and (2) Heff ington’s injuries “arise5 out of the defendant’s forum -related activities.” Id . (alterations and internal quotation marks omitted). The only Kansas-directed activitie s Heffington identifies are c ommunications between his family and the defe ndants. His amended complaint i dentifies fewer than twenty exchanges by mail, phone, e mail, and text message betwee n 2012 and 2017. Heffington alleges his family cal led or emailed Sundheim severa l times to inquire about his grandmother’s estate and, on one occasion, Sundheim e mailed his family copies of his grandmother’s will and trust. Heffington also al leges that his family exchanged phone calls a nd text messages with Puleo (which gener ally related to his grandmother’s health, visiting hi s grandmother in New York, and Puleo’s role as trustee) and that Puleo mailed Heffington money and some of his grandmother’s belongings. These limited comm unications are not enough to est ablish minimum

contacts. See Far W. Capital, Inc. v. Towne , 46 F.3d 1071, 1076- 77 (10th Cir. 1995) (the “defendants’ phone calls, an d ten-to-twenty faxes and lett ers” were not sufficient to establish minimum contacts); Soma Med. Int’l v. St andard Chartered Bank , 196 F.3d 1292, 1299 ( 10th Cir. 1999) (“a li mited number of faxe s and other written communications concerni ng [a bank] account” we re not sufficient to establish minimum contacts). And regardle ss, Heffington does not allege his injuries stemmed from these communications, but from the defendants’ conversion of trust assets and failure to perform their duties to him as a trust beneficiary. See Kuenzle v. HTM Sport-Und Freizeitgerate AG , 102 F.3d 453, 456-67 (10th Cir. 1996) (the requirement that the plaintiff’s injuries must arise out of the defendant’s6 “forum-related activit ies[] is not satisfied when the plaintiff would have suffered the same injury even if none of the defendant’s forum contacts had taken place” (alterations and internal quot ation marks omitted)). Heffington points to “affidavits [that] included family photos over the years and statements that [his grandmot her] lived in Ka nsas in 1997 a nd bought a townhome there in 2005,” and ar gues the district court ignored these affidavits in concluding it lacked personal ju risdiction. Aplt. Opening Br. at 5. To the extent this evidence was properly befo re the district court, 2 it neither suggests the defendants had continuous and systemat ic contacts with Kansas, Goodyear Dunlop Tires Operations, S.A. , 564 U.S. at 919, nor shows they purposefully directed actions toward Kansas, Old Republic Ins. Co. , 877 F.3d at 904. In short, evidence Heffington’s grandmother once live d in Kansas and may have owne d property there (which Heffington does not allege w as part of the trust) does n ot support personal jurisdiction over the defendants. B. Merits Heffington also argues the distri ct court erred by dismissing h is claims because the facts alleged in his complai nt showed the defendants illega lly deprived him of his inheritance. According to Heffi ngton, the district court shoul d have allowed discovery and given him an opport unity to present his case. Bu t before it can resolve

2 It appears the affidavit sta ting Heffington’s grandmother live d in Kansas in 1997 and bought a townhome there in 2005 was attached to Heffin gton’s motion to reconsider. See R. at 274. Heffington does not s pecifically challenge the den ial of his motion to reconsider in his appellate briefs, so we do not address the issue.7 a case, a federal court must hav e both subject-matter jurisdict ion (power to decide the claim) and personal jurisdicti on (power over the parties). Lightfoot v. Cendant Mortg. Corp. , 137 S. Ct. 553, 562 (2017). Becau se it lacked p ersonal juris diction over the defendants, the distric t court had no authority to rea ch the merits of Heffington’s claims. C. Appointment of Counsel Heffington argues the district c ourt erred by refusing to appoi nt counsel to represent him. We see no abuse of discretion. A civil litigant does not have a Sixth Amendment right to couns el. Davis v. Clifford , 825 F.3d 1131, 1137 n.3 (10t h Cir. 2016). But courts have di scretion under 28 U.S.C. § 1915(e)(1) to “request an attorney to represent any person unable to afford counsel.” We review the district court’s refusal to appoint counsel for a buse of discretion. Hill v. SmithKline Beecham Corp. , 393 F.3d 1111, 1115 (10th Cir. 2004). “Only in those extreme cases wher e the lack of counsel results in fundamental unfairness will the district cour t’s decision be overturned.” Id . (internal quotation marks omitted). We have no reason to believe tha t, even with appointed counsel, Heffington could have avoided dismissal fo r lack of personal jurisdiction. Although counsel may have helped him present the best argument pos sible, the sam e could be said in
any case. See Rucks v. Boergermann , 57 F.3d 978, 979 (10t h Cir. 1995). Seeing no8 fundamental unfairness resulti ng from Heffington’s lack of appo inted counsel, see Hill , 393 F.3d at 1115, we c onclude the district court did not abus e its discretion. D. Default Judgment Heffington argues the district c ourt “erred in failing to grant [his request for] default judgment after . . . Pul eo was 11 days late in respondi ng to his complaint.” Aplt. Opening Br. at 6. The distr ict court denied default judg ment because Heffington filed an amended comp laint prior to the response dea dline, and Puleo moved to dismiss the amended complaint within 14 days. See Fed. R. Civ. P. 15(a)(3) (“Unless the court orde rs otherwise, any required resp onse to an amended pleading must be made within the time remaining to respond to t he original pleading or within 14 days after service o f the amended pleading, whiche ver is later.”). Heffington offers no argument orauthority supporting his claim the district court erred, so we do not con sider it on appeal. See Kelley v. City of Albuquerque , 542 F.3d 802, 819-20 (10th Cir. 2008). E. Pending Motions Heffington has three pending mo tions: (1) a motion to suppleme nt the record on appeal, (2) a motion to add de fendants, and (3) a motion for leave to proceed without prepayment of fees. We deny Heffington’s first two mot ions and grant his third. Heffington moves to supplement the record on appeal to include additional evidence that his grandmother lived in Kansas in 1997 and bough t a townhome there in 2005. He suggests this eviden ce helps establis h the distric t court had personal9 jurisdiction over the defendant s. But even if supplementing th e appellate record was otherwise appropriate, the evide nce does not establish personal jurisdiction over Puleo or Sundheim forthe reasons explained above. We therefor e deny Heffington’s request to supplement the record. Heffington also moves to add Pule o’s former attorney, Justin Li te, and his law firm, Lite & Russell, PLLC, as de fendants-appellees. But neith er Lite nor his firm was a party in the district c ourt, so we deny Heffington’s moti on to add them as parties to this appeal. Finally, Heffington moves to pro ceed on appeal without prepayme nt of fees or costs. To do so, Heffington “mus t show a financial inability t o pay the required filing fees and the existence of a reasoned, nonfrivolous argum ent on the law and facts in support of the i ssues raised on appeal.” DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991). We ha ve reviewed Heffington’s finan cial affidavit and conclude he lacks the ability to prepay the filing fee. And al though his appeal was unsuccessful, his arguments wer e not frivolous, so we grant Hef fington’s request to proceed without prepayment of fees . Because we can excuse only prepayment of fees, see 28 U.S.C. § 1915(a)(1), Heffingt on remains obligated to pay al l fees and

costs. III. Conclusion We affirm the district court’s order dismissing Heffington’s cl aims for lack of personal jurisdiction. We also affirm the denial of Heffington ’s request for appointment of counsel and defa ult judgment. We deny Heffingto n’s motions to10 supplement the record on appeal and to add defendants, and gran t Heffington’s motion to proceed on appeal witho ut prepayment of fees or costs

.
Entered for the Court

Monroe G. McKay Circuit Judge