Lieberman v. Mayavision, Inc.

GRAEFF, J. On May 23, 2008, a Louisiana court entered a default judgment in the amount of $313,552 against appellants, Mel-vyn Lieberman and Lieberman & Walisko, in favor of appel-lee, Mayavision, Inc. (“Mayavision”), a Spanish language tele ²⁶⁸ vision station. On July 29, 2008, Mayavision recorded the foreign judgment in the Circuit Court for Montgomery County. On December 19, 2008, appellants moved to vacate the foreign judgment, arguing that the Louisiana court lacked personal jurisdiction over them. The circuit court denied appellants’ motion.

Appellants noted an appeal and present two questions for our review, which we have rephrased slightly: 1. Did the circuit court err in denying appellants’ motion to vacate the entry of the foreign judgment? 2. Did the circuit court err when it failed to conduct an evidentiary hearing to determine whether appellants had minimum contacts with Louisiana? For the reasons set forth below, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND Mr. Lieberman, a Maryland resident and a licensed engineer, owns Lieberman & Walisko, a consulting engineering firm located in Silver Spring, Maryland. Mr. Lieberman’s firm provides consulting engineering services to the telecommunications industry. On May 19, 2005, Ernesto Schweikert, President of Crocodile Broadcasting Corporation, hired Mr. Lieberman and his firm to perform services relating to the operation of a radio station in New Orleans, Louisiana. 1 Mr. Lieberman sent a letter to Mr. Schweikert, stating: “This letter will confirm your retention of our firm to represent your group, and any other telecommunications entities owned by your group or you but not specifically named in this agreement in connection with various telecommunications engineering matters as you may require.” ²⁶⁹ Mr. Schweikert subsequently became President of Mayavision, which was incorporated on February 2, 2006. He then “began exploring the opportunity of obtaining a broadcasting license and becoming the first all-Spanish-speaking television channel in Louisiana.” Mr. Lieberman performed services in connection with this venture. 2 The exact scope of Mr. Lieberman’s services to Mayavision is a matter of dispute.

Mr. Lieberman contends that he was hired “to provide consulting engineering services,” and that, although he traveled to Louisiana, it was merely to review the “efforts of Mayavision’s local telecommunications engineer ... to get Mayavision’s television station operating and on the air.” Mayavision, on the other hand, asserts that Mr. Lieberman was responsible for the design, acquisition, and installation of a new transmitter and antenna for the television station. It asserts that Mr. Lieberman came up with a plan to remove the old antenna from the station Mayavision acquired and install a new one using a “risky helicopter-based plan.” Mayavision contends that the antenna and transmitter installation was “a complete failure,” which resulted in “gross delays, escalated costs, and exposed Mayavision to substantial liability to other parties.” An equipment seller sued Mayavision in the Civil District Court for the Parish of Orleans in Louisiana, alleging breach of contract based on Mayavision’s failure to pay for a “radio transmission system” and other “transmission equipment.” Mayavision filed an answer and a cross-claim against appellants. In early 2008, Mr. Lieberman “received a complaint which [Mayavision] filed in Orleans Parish, Louisiana against [him] ²⁷⁰ and Lieberman & Walisko.” Mr. Lieberman did not respond to the lawsuit. On May 14, 2008, the Civil District Court for the Parish of Orleans, Louisiana entered a default judgment against appellants.

On May 23, 2008, the court confirmed the judgment in favor of Mayavision against appellants for $313,552 as a result of “their breach of contract, negligent performance, and failure to perform.” On July 29, 2008, Mayavision filed a Motion to Enroll Foreign Judgment in the Circuit Court for Montgomery County, requesting that the court enroll the Louisiana judgment in Maryland. That same day, the clerk of the circuit court issued a Notice of Foreign Judgment, which certified that the foreign judgment was recorded in the circuit court: CERTIFIED COPY OF JUDGMENT FROM CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS, STATE OF LOUISIANA, DIV. “G-ll” FILED ON MAY 23, 2008 IN FAVOR OF PLAINTIFF MAYAVISION, INC[.] AND AGAINST DEFENDANTS MELVYN LIEBERMAN AND LIEBERMAN & WALISKO IN THE AMOUNT OF THREE HUNDRED THIRTEEN THOUSAND FIVE HUNDRED FIFTY-TWO DOLLARS AND NO CENTS ($313,552.00), ENTERED. On August 27, 2008, appellants filed a Motion to Vacate Entry of Foreign Judgment and Request for the Court to Refuse to Recognize and Enforce Said Judgment. Appellants argued that “the Louisiana court lacked personal jurisdiction over defendants” because appellants did “not do business in Louisiana and physical ‘contacts’ with Louisiana are nonexistent.” They asserted that “Mr. Lieberman went to Louisiana only at the specific request of plaintiff, otherwise he would have remained in Maryland.

In short, they have not had purposeful physical contacts with the forum.” Appellants requested a hearing on the motion. On December 19, 2008, Mayavision filed an Opposition to Defendant’s Motion to Vacate Entry of Foreign Judgment and Related Relief. Mayavision argued that “the Louisiana Court ²⁷¹ properly exercised ‘specific’ or ‘special’ jurisdiction over” appellants. It asserted that, in the course of providing consulting services to Mayavision, Mr. Lieberman “ ‘purposely availed himself of the benefits of doing business in Louisiana and established sufficient ‘minimum contacts’ ” with Louisiana.

Mayavision appended seven monthly bills issued by appellants for consulting services from October 4, 2006, through May 30, 2007. These bills indicated that Mr. Lieberman made regular contact with persons in Louisiana by phone and email, and he traveled to Louisiana at least two times to work on the project. 3 On January 12, 2009, a hearing was held on appellants’ motion to vacate the foreign judgment. Counsel for appellants contended that “the Louisiana Court lacked personal jurisdiction over Mr. Lieberman for any purpose.” Counsel noted that general jurisdiction requires “substantial, continuous, and systematic contact between the party ... and the state of Louisiana,” arguing that this was “clearly missing here.” He further argued that Louisiana lacked special jurisdiction over appellant, asserting that “fortuitous contacts” or “single transaction contacts just don’t cut it.” Counsel stated that “two trips down to Louisiana by Mr. Lieberman at the request of his client to come look at some particular thing does not subject him to the jurisdiction of [the] Louisiana Court,” but “even if it does, the jurisdiction of the Louisiana Court is limited to the purpose of the visit there.” Counsel for Mayavision argued that “this is your classic civil procedure International Shoe[ 4 ] minimum contacts argument,” and “the bottom line is ... defendant purposely availed ²⁷² itself of the privilege of conducting business in Louisiana.” Counsel asserted that appellants “contracted with the plaintiffs in this case for the installation of an antenna and a transmitter for a television station,” and “in furtherance of that project, that business contract ... [Mr. Lieberman] traveled to Louisiana on at least two occasions” and made “numerous teleconferences, mailings, et cetera back and forth in furtherance of the project.” In counsel’s view, “there are more than sufficient contacts] that were made between Mr. Lieberman, his company and the State of Louisiana.” The court denied appellants’ motion to vacate the judgment, finding that appellants had minimum contacts with Louisiana. The court explained its decision as follows: This is an International Shoe minimum contacts due process consideration.

Did, in fact, Melvyn Lieberman have sufficient contacts with the State of Louisiana that, whereby he would be put on not[ice], would he be taking advantage of the laws of Louisiana with a project? And would he also be available to be knowing that he would be hailed into court for possible suit? This was not just a consult over the phone of what [do] you guys think we should do if we’re going to put up a tower. This was a hands on, ongoing representation of the plaintiff on dealing with this tower.

That is, Mr. Lieberman was very involved in this for a long period of time dealing with a lot of telephone conferences, dealing with the specs, and dealing with a structure. A structure that was put[ ] up regardless of whether it was put up well or not well, it was a structure that was put up. * * * But when he has an ongoing teleconference with the people in New Orleans, when he’s taking on more of a role than a consultant, and is actually he is involved in the process of setting it up and how they’re going to move it and what they’re going to do. And he makes trips to the soil of Louisiana on a minimum of two occasions. And we’ll say no more than two occasions.

And he’s putting up a ²⁷³ structure or he’s involved in a structure being put up. He knows full well and he should know well and he’s on notice that if that structure falls and hits somebody, that suit[’s] going to be in New Orleans or in Louisiana. If there’s a suit on the contract or in the installation or the design of anything, that’s going to be in the state of Louisiana. The only saving grace that he had is that the laws of Maryland wouldn’t apply.

However, under due process and looking at the laws of Maryland on International Shoe and all the other cases that have been decided by our Court of Appeals, I clearly find that he had minimum contacts in the State of Louisiana. That he would be on notice that he’d be hailed into court on a lawsuit. He also took advantage of the rights and privileges of doing business in Louisiana. He had minimum contacts.

Considering all the factors and looking at all the bills, this Court will deny the motion to vacate the entry of foreign judgment [from] the State of Louisiana. On January 16, 2009, the circuit court entered an order denying appellants’ motion. This timely appeal followed. DISCUSSION I. Personal Jurisdiction Appellants contend that the circuit court erred in denying their motion to vacate the recorded judgment.

They argue that the Louisiana court lacked personal jurisdiction over them, asserting that they did not have “sufficient minimum contacts” with Louisiana to give Louisiana personal jurisdiction over them. Appellants further contend that the assertion of personal jurisdiction by Louisiana did not comport with concerns of “reasonableness” and “fairness,” arguing that Maryland was the appropriate forum for litigating the dispute. Mayavision argues that the circuit court properly determined that appellants “ ‘purposefully availed’ himself/themselves of the benefits of doing business in Louisiana.” It ²⁷⁴ argues that “Lieberman’s connection with Louisiana is sufficient to satisfy the ‘minimum contacts’ test.” In support, Mayavision lists the following facts: A. Mayavision retained Lieberman to provide advice and consulting services, and to assist in setting up contacts with third parties to facilitate the installation of the broadcasting antennae that was to be installed in Louisiana; B. Lieberman regularly invoiced Mayavision for work performed from October 2006 through November 2007. These invoices describe, in detail, the work performed by Lieberman in Louisiana.

C. Lieberman regularly communicated with various parties located in Louisiana, including Schweikert, Ernest Harvey (Schweikert’s engineer), Entergy of Louisiana, and Mayavision’s attorney, Romualdo Gonzalez. All of these communications were related to work on the antennae and transmitter that would be installed in Louisiana. Specifically, there are references throughout the invoices relative to various locations being considered for the installation of a broadcasting tower. Locations referenced included New Orleans, Kenner, Chalmette or Gretna — all of which are located in South Louisiana.

D. Lieberman took at least two trips to New Orleans, in direct contradiction to this sworn affidavit that he only went to Louisiana once “at the Plaintiffs request.” Mayavision further argues that “the trial court properly determined that the exercise of jurisdiction by the Louisiana court was fair and reasonable.” Article IV, § 1 of the United States Constitution provides, in part, that “[f]ull faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” The United States Supreme Court has held that, in order “to fulfill this constitutional mandate, ‘the judgment of a state court should have the same credit, validity, and effect, in every other court of the United States, which it had ²⁷⁵ in the state where it was pronounced.’ ” Imperial Hotel, Inc. v. Bell Atl. Tri-Con Leasing Corp., 91 Md.App. 266, 270 , 603 A.2d 1371 (1992) (quoting Underwriters Nat’l Assurance Co. v. North Carolina Life and Accident and Health Ins. Guar. Assoc, et al, 455 U.S. 691, 704 , 102 S.Ct. 1357 , 71 L.Ed.2d 558 (1982)).

There are limits, however, on this provision. “[B]efore one state court is bound by a judgment rendered by a court in another state, it may inquire into the propriety of a foreign court’s exercise of jurisdiction. If the foreign court did not have jurisdiction, full faith and credit need not be given.” Id. at 270-71, 603 A.2d 1371 . Maryland’s Uniform Enforcement of Foreign Judgments Act (the “Act”) 5 “provides the mechanism by which a judgment creditor or the attorney of a judgment creditor may enforce a foreign judgment.” Id. at 272 , 603 A.2d 1371 . “[W]hen a properly authenticated copy of a foreign judgment is presented for recording and enforcement, the burden is on a resisting party to establish that the rendering court lacked either subject matter or personal jurisdiction.” Legum v. Brown, 395 Md. 135, 145-46 , 909 A.2d 672 (2006). Jurisdiction is “ ‘presumed unless disproved by extrinsic evidence or by the record itself.’” Id. at 145 , 909 A.2d 672 (quoting Adam v. Saenger, 303 U.S. 59, 62, 58 S.Ct. 454 , 82 L.Ed. 649 (1938)).

When a person offers “some competent evidence” to support an attack on jurisdiction, “the forum court must make an inquiry and determine from the evidence whether jurisdiction existed. It cannot give full faith and credit to the judgment based solely on the presumption of regularity once competent and persuasive evidence is presented that is facially sufficient to rebut the presumption.” Id. at 147 , 909 A.2d 672 . Accord Oxendine v. SLM Capital Corp., 172 Md.App. 478, 485-86 , 915 A.2d 1030 (2007). ²⁷⁶ In determining whether another state properly exercised personal jurisdiction over a Maryland resident, the court typically begins with a two-step process: First, “the trial court must determine whether the [foreign state] purports to authorize the assertion of personal jurisdiction ... to the full limits allowed by constitutional due process.” Second, the Maryland court must determine “whether the exercise of jurisdiction permitted by the [foreign] statute violates the due process clause of the fourteenth amendment.” Oxendine, 172 Md.App. at 486 , 915 A.2d 1030 (quoting Superior Court of Cal., County of Stanislaus, Family Support Div. ex rel Jones v. Ricketts, 153 Md.App. 281, 332 , 836 A.2d 707 (2003)). In Louisiana, however, the Supreme Court of Louisiana has explained: [T]he sole inquiry into jurisdiction over a nonresident is a one-step analysis of the constitutional due process requirements.

If the assertion of jurisdiction meets the constitutional requirements of due process, the assertion of jurisdiction is authorized under the long-arm statute. The limits of Louisiana’s long-arm statute and the limits of constitutional due process are now coextensive. Superior Supply Co. v. Assoc. Pipe & Supply Co., 515 So.2d 790, 792 (La.1987). 6 ²⁷⁷ Thus, our sole inquiry is whether the Louisiana court’s exercise of jurisdiction in this case was proper under the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

To satisfy due process, “ ‘the exercise of personal jurisdiction over an out-of-state defendant requires that the defendant have established minimum contacts with the forum state and that to hale him or her into court in the forum state would comport with traditional notions of fair play and substantial justice.’ ” CSR, Ltd. v. Taylor, 411 Md. 457, 476 , 983 A.2d 492 (2009) (quoting Bond v. Messerman, 391 Md. 706, 722 , 895 A.2d 990 (2006)). Accord Int’l Shoe Co. v. Washington, 326 U.S. 310 , 66 S.Ct. 154 , 90 L.Ed. 95 (1945). The type of contacts required for a State to exercise personal jurisdiction depends on “ ‘the nature of the action brought and the nexus of the contacts to the subject matter of the action.’ ” CSR, Ltd., 411 Md. at 477 , 983 A.2d 492 (quoting Camelback Ski Corp. v. Behning, 312 Md. 330, 338 , 539 A.2d 1107 (1988)). For general jurisdiction, the cause of action can be unrelated to the defendant’s contact with the forum state, Miserandino v. Resort Props., Inc., 345 Md. 43, 50 , 691 A.2d 208 , cert, denied, 522 U.S. 953 , 118 S.Ct. 376 , 139 L.Ed.2d 292 , cert, denied, 522 U.S. 963 , 118 S.Ct. 397 , 139 L.Ed.2d 310 (1997), but the defendant’s contacts with the forum state must be “continuous and systematic.” CSR, Ltd., 411 Md. at 477 , 983 A.2d 492 .

By contrast, “specific jurisdiction” arises “where the cause of action arises out of the defendant’s contacts with the forum state.” Miserandino, 345 Md. at 50 , 691 A.2d 208 . Here, the parties agree that the issue involves whether there was specific jurisdiction over appellants. In determining whether specific personal jurisdiction satisfies due process: [W]e consider (1) the extent to which the defendant has purposefully availed itself of the privilege of conducting activities in the State; (2) whether the plaintiffs’ claims arise out of those activities directed at the State; and (3) ²⁷⁸ whether the exercise of personal jurisdiction would be constitutionally reasonable. CSR, Ltd., 411 Md. at 477 , 983 A.2d 492 (quoting Beyond Sys. v. Realtime Gaming Holding Co., LLC, 388 Md. 1, 26 , 878 A.2d 567 (2005)).

Appellants challenge the first and third criteria, whether Mr. Lieberman purposefully availed himself of the privilege of conducting activities in the State and whether the exercise of jurisdiction by the Louisiana court was reasonable. The United States Supreme Court has stated 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.” Burger King Corp. v. Rud-zewicz, 471 U.S. 462, 475 , 105 S.Ct. 2174 , 85 L.Ed.2d 528 (1985) (quotation omitted). It explained: T[he] “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 that create a “substantial connection” with the forum State. Thus where the