Paul Rolf Jensen v. Larry Klayman, a/k/a Larry E. Klayman, A candidate for the United States Senate from…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1478
PAUL ROLF JENSEN,
Plaintiff - Appellant,
versus
LARRY KLAYMAN, a/k/a Larry E. Klayman, A
candidate for the United States Senate from
Florida
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, District
Judge. (CA-03-1600-A)
Submitted: October 1, 2004 Decided: November 19, 2004
Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Paul Rolf Jensen, Appellant Pro Se. Joseph Ray Price, ARENT FOX,
P.L.L.C., Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Paul Rolf Jensen appeals the district court’s order
granting the Defendant’s motion to dismiss his civil action under
Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction, or in
the alternative, under Fed. R. Civ. P. 12(b)(1), because of the
parties’ agreement to arbitrate the dispute in Florida. Jensen
asserts the district court erred in determining he failed to make
a prima facie showing of personal jurisdiction over the Defendant,
in finding his claims were subject to an arbitration agreement, and
in failing to sua sponte transfer his case to the Southern District
of Florida. Because we find no reversible error, we affirm.
When personal jurisdiction is challenged under Rule
12(b)(2), the jurisdictional question is resolved by the judge,
with the burden on the plaintiff ultimately to prove grounds for
jurisdiction by a preponderance of the evidence. Mylan Labs., Inc.
v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir. 1993). When a district
court rules on a pretrial personal jurisdiction motion without
conducting an evidentiary hearing, we review 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. Mitrano
v. Hawes, 377 F.3d 402, 406 (4th Cir. 2004). 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; if so, the court must next decide whether

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exercising personal jurisdiction would be consistent with due
process. Id. (citations omitted).
Virginia’s long arm statute extends personal jurisdiction
to the limits allowed by due process. Id. (citations omitted).
Thus, our statutory inquiry merges with our constitutional inquiry.
Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d
390, 396-97 (4th Cir. 2003). A court’s exercise of jurisdiction
over a nonresident defendant comports with due process if the
defendant has “minimum contacts” with the forum, such that to
require the defendant to defend its interests in that state “does
not offend traditional notions of fair play and substantial
justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)
(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 an exercise of
jurisdiction, a defendant’s actions must have been ‘directed at the
forum state in more than a random, fortuitous, or attenuated way.’”
Mitrano, 377 F.3d at 407 (citing ESAB Group, Inc. v. Centricut,
Inc., 126 F.3d 617, 625 (4th Cir. 1997)).
The standard for determining the existence of personal
jurisdiction over a nonresident defendant varies, depending on
whether the defendant’s contacts with the forum state also provide
a basis for the suit. Carefirst of Md., 334 F.3d at 397. If those
contacts form the basis for the suit, they may establish “specific

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jurisdiction.” Id. In determining whether specific jurisdiction
exists, the court considers (1) the extent to which the defendant
has purposefully availed himself of the privilege of conducting
activities in the state; (2) whether the plaintiff’s claims arise
out of those activities directed at the state; and (3) whether the
exercise of personal jurisdiction would be constitutionally
reasonable. Id. “If, however, the defendant’s contacts with the
state are not also the basis for the suit, then jurisdiction over
the defendant must arise from the defendant’s general, more
persistent, but unrelated contacts with the state.” Id. To
establish general jurisdiction, the defendant’s activities in the
state must have been “continuous and systematic,” a more demanding
standard than is necessary for establishing specific jurisdiction.
ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707,
712 (4th Cir. 2002) (citations omitted). Our review of the record
convinces us that Jensen failed to make the requisite prima facie
showing of personal jurisdiction.
We also agree with the district court that this dispute
is subject to an arbitration agreement between the parties.
Because the examination of the scope of an arbitration agreement is
primarily a task of contract interpretation, we review a district
court’s determination of the arbitrability of a dispute de novo.
Cara’s Notions v. Hallmark Cards, 140 F.3d 566, 569 (4th Cir.
1998). In applying state-law contract interpretation principles,

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due regard is given to federal policy favoring arbitration, and
ambiguities are resolved in favor of arbitration. Id. An
agreement to arbitrate in a particular place “is, in effect, a
specialized kind of forum-selection clause that posits not only the
situs of suit but also the procedure to be used in resolving the
dispute.” Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 (1974).
Since its decision in The Bremen v. Zapata Off-Shore Co., 407 U.S.
1 (1972), “the Supreme Court has consistently accorded choice of
forum and choice of law provisions presumptive validity.” Allen v.
Lloyd’s of London, 94 F.3d 923, 928 (4th Cir. 1996) (citations
omitted). We find the district court correctly determined Jensen’s
claims were covered by an agreement to arbitrate in Florida.
Finally, Jensen claims the district court erred in
failing to sua sponte transfer this case to the Southern District
of Florida under 28 U.S.C. § 1631 (2000) once the court determined
that it lacked personal jurisdiction over the Defendant. First, we
note that Jensen waived this claim by failing to raise it in the
district court. See Muth v. United States, 1 F.3d 246, 250 (4th
Cir. 1993). Moreover, the district court did not plainly err in
failing to transfer the case, since the parties agreed to
arbitration and Jensen did not establish that a transfer to a
district court in Florida would be in the interest of justice. See
28 U.S.C. § 1631.

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Accordingly, we affirm the judgment of the district
court. We grant Appellee’s unopposed motions for leave to file
transcripts with his brief and to seal the parties’ briefs. We
deny Appellee’s motion for summary affirmance as moot, and we deny
Appellee’s motion to seal his motion for summary affirmance. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED

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