Peter Paul Mitrano v.  CHRISTOPHER J. HAWES, d/b/a CJH Color and Design Group

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 PETER PAUL MITRANO,
Plaintiff-Appellant,
v. No. 03-1414 
CHRISTOPHER J. HAWES, d/b/a CJH
Color and Design Group,
Defendant-Appellee. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CA-02-1841-A)
Argued: June 2, 2004
Decided: July 26, 2004
Before WILKINS, Chief Judge, LUTTIG, Circuit Judge,
and Louise W. FLANAGAN, United States District Judge for the
Eastern District of North Carolina, sitting by designation.
Vacated and remanded by published opinion. Chief Judge Wilkins
wrote the opinion, in which Judge Luttig and Judge Flanagan joined.
COUNSEL
ARGUED: Peter Paul Mitrano, Merrifield, Virginia, for Appellant.
John William Toothman, Alexandria, Virginia, for Appellee.

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OPINION
WILKINS, Chief Judge:
Peter Paul Mitrano, an attorney proceeding pro se, appeals a district
court order dismissing his breach of contract action based on
improper venue.1 We vacate the judgment and remand for further pro-
ceedings.
I.
In August 2000, Mitrano entered into an oral agreement to provide
legal services to Christopher J. Hawes, doing business as CJH Color
and Design Group. A trademark infringement action by L’Oreal
Societe Anonyme was pending against Hawes in France because
Hawes had registered a website domain name, <lorealcom
plaints.com>, with Network Solutions, Inc. Because of the lawsuit,
control of the domain name was deposited into the registry of the
French court.
At the time of the agreement, Mitrano resided in New Hampshire,
and Hawes resided in Massachusetts. Between December 2000 and
January 2001, however, Mitrano moved to Virginia while continuing
to provide legal services to Hawes. On April 12, 2001, Mitrano filed
a lawsuit on Hawes’ behalf against Network Solutions and L’Oreal
Societe Anonyme in the Eastern District of Virginia ("Eastern Dis-
trict"), challenging the transfer of the domain name into the French
court registry ("the underlying suit"). The district court dismissed the
complaint, and on appeal, this court partially affirmed, partially
reversed, and remanded for further proceedings. See Hawes v. Net-
work Solutions, Inc., 337 F.3d 377, 379 (4th Cir. 2003).
On December 19, 2002, Mitrano filed this action against Hawes in
the Eastern District, claiming that he provided approximately
$579,280 in legal services to Hawes and that Hawes had only paid
him $113,200. Hawes moved to dismiss, arguing that the district court
lacked subject matter and personal jurisdiction and that venue was
1Mitrano also appeals an order denying his motion to reconsider.
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improper in the Eastern District. The district court concluded that it
had subject matter and personal jurisdiction. However, relying on our
decision in Broadcasting Co. of the Carolinas v. Flair Broadcasting
Corp., 892 F.2d 372 (4th Cir. 1989), the district court reasoned that
Massachusetts, rather than Virginia, was the proper venue because:
(1) the contract was formed in Massachusetts; (2) the negotiations
leading to the formation of the contract were held in Massachusetts;
(3) the contract contemplated that services would be performed in
Massachusetts or France; (4) actual performance of the contract
occurred, in part, in Massachusetts; and (5) the alleged breach of the
contract (failure to make payments) took place in Massachusetts. The
district court therefore dismissed the action without conducting an
evidentiary hearing.
Mitrano moved for reconsideration, arguing that the 1990 amend-
ments to the federal venue statute, 28 U.S.C.A. § 1391 (West 1993 &
Supp. 2004), rendered Broadcasting Co. obsolete. Mitrano argued
that, under the amended statute, venue was proper in the Eastern Dis-
trict because he "performed a substantial part of the legal services for
[Hawes] in [the Eastern District], namely research, drafting of plead-
ings, court appearances, court filings and review of the underlying lit-
igation that relates to this action." J.A. 31-32 (internal quotation
marks omitted). In addressing the motion, the district court recog-
nized that under the amended version of § 1391, venue for a given
suit could be appropriate in multiple districts. The district court never-
theless concluded that venue was not proper in the Eastern District
because Mitrano’s performance of legal work was "tangential, not
substantial" to Mitrano’s breach of contract claim. Id. at 36. The court
therefore denied the motion for reconsideration.
II.
Mitrano contends that the district court erred in ruling that venue
was improper in the Eastern District. We agree.
We review the district court venue ruling de novo. See United
States v. Newsom, 9 F.3d 337, 338 (4th Cir. 1993). To survive a
motion to dismiss for improper venue when no evidentiary hearing is
held, the plaintiff need only make a prima facie showing of venue.
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See Delong Equip. Co. v. Washington Mills Abrasive Co., 840 F.2d
843, 845 (11th Cir. 1988).
Prior to 1990, § 1391 provided that an action based on diversity of
citizenship—as this one is—could be brought in the judicial district
"in which the claim arose." 28 U.S.C. § 1391(a) (1988). When it was
not clear that a claim arose in only one district, we applied a "weight
of the contacts" test for determining venue under § 1391(a). Broad-
casting Co., 892 F.2d at 377 (internal quotation marks omitted).
Under this test, venue was proper in the district having the most sig-
nificant connection with the claim. See id. at 376.
In 1990, § 1391 was amended to make venue proper in any "judi-
cial district in which a substantial part of the events or omissions giv-
ing rise to the claim occurred."2 Judicial Improvements Act of 1990,
Pub. L. No. 101-650, § 311(1), 104 Stat. 5089, 5114. Congress
amended the statute because the prior language "led to wasteful litiga-
tion whenever several different forums were involved in the transac-
tions leading up to the dispute." Cottman Transmission Sys., Inc. v.
Martino, 36 F.3d 291, 294 (3d Cir. 1994) (citing Rep. of the Fed. Cts.
Study Comm. 94 (Comm. Print 1990)). Under the amended statute,
it is possible for venue to be proper in more than one judicial district.
See Jenkins Brick Co. v. Bremer, 321 F.3d 1366, 1371 (11th Cir.
2003). We therefore no longer apply the "weight of the contacts" test.
See Ciena Corp. v. Jarrard, 203 F.3d 312, 318 (4th Cir. 2000) (deter-
mining venue under amended statute without reference to "weight of
the contacts" test). Additionally, in determining whether events or
omissions are sufficiently substantial to support venue under the
amended statute, a court should not focus only on those matters that
are in dispute or that directly led to the filing of the action. See Uffner
v. La Reunion Francaise, S.A., 244 F.3d 38, 42 (1st Cir. 2001).
Rather, it should review "the entire sequence of events underlying the
2An action may also be brought in a judicial district where a defendant
resides, if all defendants reside in the same state, or where any defendant
is subject to personal jurisdiction, if there is no other district in which the
action may be brought. See 28 U.S.C.A. § 1391(a). Because Hawes
resided in Massachusetts and venue would be proper in Massachusetts,
neither provision would provide a basis for venue in Virginia.
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claim." Id.; see First of Mich. Corp. v. Bramlet, 141 F.3d 260, 264
(6th Cir. 1998).
Applying these principles here, we conclude that Mitrano’s work
under the contract constituted "a substantial part of the events [and]
omissions giving rise to [Mitrano’s] claim" for breach of contract. 28
U.S.C.A. § 1391(a). Indeed, it was Mitrano’s work that allegedly cre-
ated his entitlement to the payment he now seeks. For that reason,
depending on the amount of work that Mitrano completed in the East-
ern District, that work alone may be sufficient to justify venue there.
This conclusion is strongly supported by Uffner, which concerned a
bad faith claim-denial action against an insurer arising out of the sink-
ing of a yacht it insured. There, the First Circuit held that the sinking
of the yacht was a "substantial part of the events or omissions giving
rise to the claim" even though the claim did not concern how, when,
or why the accident occurred. See Uffner, 244 F.3d at 43. The court
reached that conclusion because the sinking of the vessel, like
Mitrano’s performance of the legal services at issue here, was the
event that allegedly entitled the plaintiff to the payment sought under
the contract. See id.
Because we reject the analysis of the district court, we vacate the
dismissal order and remand for reconsideration of the venue issue.
However, we note that a question apparently not previously addressed
by the parties or the district court is exactly what portion of Mitrano’s
work was performed in the Eastern District.3 We will not attempt to
delineate exactly how much work Mitrano would need to have com-
pleted in the Eastern District to support venue there, but rather, will
leave that legal question to the district court to answer in the first
instance on remand along with the factual question of how much
work Mitrano actually performed in the Eastern District.
III.
Hawes argues that even if venue is proper in the Eastern District,
3Mitrano stated in his declaration that it was "a substantial part," J.A.
31 (internal quotation marks omitted), and he maintained at oral argu-
ment that it was "more than half" of the work.
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we should affirm the dismissal of Mitrano’s suit on the basis that the
district court lacked personal jurisdiction over Hawes. We disagree.
When a district court rules on personal jurisdiction without holding
an evidentiary hearing, we view the facts in the light most favorable
to the plaintiff and determine de novo whether he has made a prima
facie showing of personal jurisdiction. See Carefirst of Md., Inc. v.
Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003). To
establish personal jurisdiction over a nonresident defendant through
a state long arm statute, a court must first determine that jurisdiction
is authorized by state law. See Ellicott Mach. Corp. v. John Holland
Party Ltd., 995 F.2d 474, 477 (4th Cir. 1993). If it is, the court must
next decide whether exercise of personal jurisdiction would be consis-
tent with due process. See English & Smith v. Metzger, 901 F.2d 36,
38 (4th Cir. 1990).
Virginia’s long arm statute extends personal jurisdiction to the lim-
its allowed by due process. See id.; Va. Code Ann. § 8.01-328.1 (Lex-
isNexis Supp. 2003). And, for a district court to exercise its
jurisdiction consistently with due process requirements, a defendant
before it must have "certain minimum contacts with [the forum state]
such that the maintenance of the suit does not offend traditional
notions of fair play and substantial justice." Int’l Shoe Co. v. Wash-
ington, 326 U.S. 310, 316 (1945) (internal quotation marks omitted).
The standard for determining whether a court may exercise personal
jurisdiction over a nonresident defendant depends on whether the
defendant’s contacts with the forum state provide the basis for the
suit. See Carefirst of Md., 334 F.3d at 397. If so, those contacts may
establish "specific jurisdiction." See id.; Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 414 & n.8 (1984). To decide
whether specific jurisdiction exists, we examine "(1) the extent to
which the defendant 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) whether the
exercise of personal jurisdiction would be constitutionally reason-
able." ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707,
712 (4th Cir. 2002) (alteration & internal quotation marks omitted).
A defendant should be able to anticipate being sued in a court that can
exercise personal jurisdiction over him; thus, to justify such an exer-
cise of jurisdiction, a defendant’s actions must have been "directed at
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the forum state in more than a random, fortuitous, or attenuated way."
ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 625 (4th Cir.
1997).
Here, Mitrano contends that Hawes purposefully directed his activ-
ities into Virginia by prosecuting the underlying suit there. Although
it is undisputed that Mitrano’s breach of contract case arises out of the
action that Mitrano and Hawes prosecuted in Virginia, Hawes argues
that he did not purposefully direct his activities toward Virginia and
that it would be unfair for him to defend Mitrano’s suit there because
it was Mitrano, not Hawes, who selected the forum for the underlying
suit. See Hanson v. Denckla, 357 U.S. 235, 253 (1958) ("The unilat-
eral activity of those who claim some relationship with a nonresident
defendant cannot satisfy the requirement of contact with the forum
State."). However, even assuming Hawes was not involved in the ini-
tial selection of the forum, viewing the record in the light most favor-
able to Mitrano, Hawes knew that the suit had been filed there.
Indeed, Hawes admits in his declaration that Mitrano provided him
with "copies of papers that he had filed . . . in the U.S. District Court
in Alexandria, Virginia . . . ." J.A. 65. Thus, Hawes’ knowing contin-
uation of the suit in Virginia demonstrates that his availment of Vir-
ginia’s legal protections was purposeful. See Daynard v. Ness,
Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 55 (1st Cir.
2002) ("Whether or not an agent is initially authorized to act on
behalf of a principal, the agent’s actions may be attributed to the prin-
cipal, for purposes of personal jurisdiction, if the principal later rati-
fies the agent’s conduct."); Int’l. Med. Group v. Am. Arbitration
Ass’n, 312 F.3d 833, 845 (7th Cir. 2002) (attributing the actions of the
defendant’s attorneys to the defendant for purposes of determining the
existence of personal jurisdiction); cf. Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 479 n.22 (1985) (stating that commercial
activities performed on a party’s behalf "may sometimes be ascribed
to the party" but not "resolv[ing] the permissible bounds of such attri-
bution"). And, considering that Hawes allowed Mitrano to continue
to litigate on his behalf in Virginia, there is nothing unfair about
requiring him to defend the resulting fee suit in the same forum.4
4Hawes maintains that if we determine that the district court possessed
personal jurisdiction over him and that venue was appropriate in Vir-
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IV.
For the foregoing reasons, we hold that the district court correctly
concluded that Mitrano made out a prima facie case of personal juris-
diction over Hawes, but we reject the basis provided by the district
court for dismissing Mitrano’s suit for lack of venue. We therefore
vacate the dismissal order and remand for reconsideration of the
venue issue.
VACATED AND REMANDED
ginia, this action should be transferred to Massachusetts pursuant to 28
U.S.C.A. § 1404(a) (West 1993) ("For the convenience of parties and
witnesses, in the interest of justice, a district court may transfer any civil
action to any other district or division where it might have been
brought."). Mitrano also argues that he is entitled to summary judgment
on the merits of his claim. Because the district court has never ruled on
these issues, we will allow that court to address them in the first instance
should the court conclude on remand that venue is proper.
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