                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                         June 30, 2005

                                   TENTH CIRCUIT                    PATRICK FISHER
                                                                             Clerk


 NAOMI OLSEN; TOM OLSEN,

          Plaintiffs-Appellants,
                                                        No. 04-2023
 v.                                          (D.C. No. CIV-01-563-MCA/RLP)
                                                       (New Mexico)
 PAUL MAPES; ROBERT BABCOCK,

          Defendants-Apellees.



                          ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Tom and Naomi Olsen brought a pro se civil action against attorney Robert

Babcock and Administrative Law Judge Paul Mapes. 1 In a Second Amended

      *
       After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
      1
       Tom Olsen is the plaintiff in a pending administrative proceeding brought
under the Longshore Harbor Worker’s Compensation Act, which is currently
before Judge Mapes in San Francisco, California. Robert Babcock is an attorney
who represents Mr. Olsen’s former employer, Triple A Machine Shop, Inc., in
that proceeding. Plaintiffs’ claims arise from the alleged conduct of Judge Mapes
Complaint filed without permission of the court, the Olsens attempted to add the

New Mexico Board of Pharmacy (Board) as a defendant. The claims against Mr.

Babcock were dismissed for lack of in personam jurisdiction. The claims against

Judge Mapes were dismissed based on the district court’s determination that the

Olsens failed to comply with the court’s orders to perfect service. The district

court then struck the Second Amended Complaint, effectively dismissing all

claims against the Board. The Olsens appealed the dismissal of claims against

Judge Mapes and the Board and we reversed. Olsen v. Mapes, 333 F.3d 1199

(10th Cir. 2003). The Olsens did not appeal the dismissal of the complaint

against Mr. Babcock. Id. at 1200 n.1. Although noting the Olsens had not

appealed with respect to Mr. Babcock, on remand the district court nevertheless

reaffirmed its order of dismissal with prejudice with respect to him and granted

Judge Mapes’ motion to dismiss for lack of personal jurisdiction. The Olsens

appeal. We dismiss the appeal with respect to Mr. Babcock for lack of appellate

jurisdiction and otherwise affirm.

      The first issue we must resolve is whether this court has jurisdiction over

Mr. Babcock. Although the Olsens raise issues concerning Mr. Babcock in their

appellate brief, he contends our jurisdiction is circumscribed to the contents of

the notice of appeal. F ED . R. A PP . P. 3(c) (the notice of appeal must designate the



and Mr. Babcock in those proceedings.

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order being appealed). However, timely filed appellate briefs and pro se

documents may serve as the functional equivalent of a notice of appeal. See, e.g.,

Smith v. Barry, 502 U.S. 244, 248-49 (1992); Rodgers v. Wyoming Att’y Gen., 205

F.3d 1201, 1204 n.3 (10th Cir. 2000), overruled on other grounds as recognized

by Moore v. Marr, 254 F.3d 1235, 1239 (10th Cir. 2001). Although the Olsens’

references to Mr. Babcock in their appellate brief constitute the functional

equivalent of a notice of appeal, their claims against him must nevertheless be

dismissed. “This court cannot exercise jurisdiction absent a timely notice of

appeal.” United States v. Smith, 182 F.3d 733, 734 (10th Cir. 1999). The

deadline for filing a notice of appeal in a civil case expires “30 days after the

judgment or order appealed from is entered.” F ED . R. A PP . P. 4(a)(1). The

Olsens’ appellate brief, dated June 25, 2004, was not filed within thirty days of

the court’s August 25, 2003 order dismissing Mr. Babcock, and we therefore lack

appellate jurisdiction over their claims against him.

      The remaining issue is whether the district court erred in dismissing Judge

Mapes for want of in personam jurisdiction. “We review de novo the district

court’s dismissal for lack of personal jurisdiction.” Soma Med. Int’l v. Standard

Chartered Bank, 196 F.3d 1292, 1295 (10th Cir. 1999). “When, as in this case, a

district court grants a motion to dismiss for lack of personal jurisdiction without

conducting an evidentiary hearing, the plaintiff need only make a prima facie


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showing of personal jurisdiction to defeat the motion.” Id. (internal quotation

omitted). The district court held the Olsens failed to make a prima facie showing

that the constitutional requirements for the exercise of personal jurisdiction were

satisfied with respect to Judge Mapes. We agree.

      “To obtain personal jurisdiction over a nonresident defendant in a diversity

action, a plaintiff must show that jurisdiction is legitimate under the laws of the

forum state and that the exercise of jurisdiction does not offend the due process

clause of the Fourteenth Amendment.” Id. (internal quotation omitted). New

Mexico’s long arm statute is coextensive with constitutional limitations imposed

by the due process clause. Tercero v. Roman Catholic Diocese of Norwich,

Conn., 48 P.3d 50, 54-55 (N.M. 2002). Our opinion in OMI Holdings, Inc. v.

Royal Ins. Co. of Canada, 149 F.3d 1086 (10th Cir. 1998), lays out the

well-established constitutional analysis for personal jurisdiction:

      “The Due Process Clause protects an individual’s liberty interest in not
      being subject to the binding judgments of a forum with which he has
      established no meaningful ‘contacts[,] ties, or relations.’” Burger King
      Corp. v. Rudzewicz, 471 U.S. 462, 471-72 (1985). Therefore, a “court may
      exercise personal jurisdiction over a nonresident defendant only so long as
      there exist ‘minimum contacts’ between the defendant and the forum state.”
      World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 [(1980)].
      The requirement that “minimum contacts” be present protects a defendant,
      who has no meaningful contact with a state, from the burdens of defending
      a lawsuit far from home in a forum where the substantive and procedural
      laws may be quite different from those with which the litigant is familiar.
      See id. at 292 . . . . The “minimum contacts” standard may be met in two
      ways. First, a court may, consistent with due process, assert specific
      jurisdiction over a nonresident defendant “if the defendant has

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      ‘purposefully directed’ his activities at residents of the forum, and the
      litigation results from alleged injuries that ‘arise out of or relate to’ those
      activities.” Burger King, 471 U.S. at 472 (internal quotations omitted).
      Where a court’s exercise of jurisdiction does not directly arise from a
      defendant’s forum-related activities, the court may nonetheless maintain
      general personal jurisdiction over the defendant based on the defendant’s
      general business contacts with the forum state. Helicopteros Nacionales de
      Colombia v. Hall, 466 U.S. 408, 415 (1984).

Id. at 1090-91 (emphasis added). We agree with the district court that the Olsens’

submissions are insufficient to demonstrate the type of continuous and systematic

contacts with New Mexico that would warrant general jurisdiction over Judge

Mapes. The question then is whether the Olsens made a prima facie showing that

the requirements of specific jurisdiction have been met.

      A specific jurisdiction analysis involves a two-step inquiry. First, we must

consider whether “the defendant's conduct and connection with the forum State

are such that he should reasonably anticipate being haled into court there.”

World-Wide Volkswagen, 444 U.S. at 297. In this connection, we examine

whether the “defendant purposefully avail[ed] itself of the privilege of conducting

activities within the forum State.” Hanson v. Denckla, 357 U.S. 235, 253 (1958).

“Second[,] if the defendant’s actions create sufficient minimum contacts, we must

then consider whether the exercise of personal jurisdiction over the defendant

offends ‘traditional notions of fair play and substantial justice.’” OMI, 149 F.3d

at 1091 (quoting Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S.

102, 113 (1987)). In other words, the forum state’s exercise of jurisdiction over

                                         -5-
the defendant must be reasonable “in light of the circumstances surrounding the

case.” Id. at 1091.

      We agree with the district court that Judge Mapes’ contact with the Olsens

in response to proceedings they initiated in California did not create a substantial

connection between Judge Mapes and New Mexico. First, “[i]t is well-established

that phone calls and letters are not necessarily sufficient in themselves to

establish minimum contacts.” Far West Capital, Inc. v. Towne, 46 F.3d 1071,

1077 (10th Cir. 1995). Instead, “the exercise of jurisdiction depends on the

nature of those contacts.” Rambo v. Am. S. Ins. Co., 839 F.2d 1415, 1418 (10th

Cir. 1988). There is simply no evidence on the record that Judge Mapes

purposefully chose New Mexico as the forum for any of his contacts with the

Olsens. Judge Mapes neither lives nor works in New Mexico. Indeed, it was

mere fortuity that the Olsens happened to reside in New Mexico when some of

their contacts with Judge Mapes occurred. Burger King, 471 U.S. at 475

(“‘purposeful availment’ requirement ensures that a defendant will not be haled

into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’

contacts”).

      In addition, a showing of minimum contacts cannot rest on the Olsens’

unilateral actions seeking contact with Judge Mapes. Id. at 478 (an individual’s

contract with an out-of-state party alone does not automatically establish


                                          -6-
sufficient minimum contacts in the other party’s home forum). Tom Olsen is a

plaintiff in an administrative proceeding which is currently pending before Judge

Mapes in the Northern District of California. The mere fact that Judge Mapes

engaged in communication with the Olsens while they were in New Mexico

regarding a case they filed in California does not constitute sufficient minimum

contacts with New Mexico to support personal jurisdiction under federal law. See

Soma, 196 F.3d at 1298-99 (British bank’s actions in sending faxes and other

communications to Utah corporation held insufficient to establish specific

personal jurisdiction in Utah where corporation apparently unilaterally decided to

conduct business with British bank and Utah had only fortuitous role in parties’

relationship). In fact, all of the actions complained about by the Olsens were

conducted by Judge Mapes in his official capacity in California.

      Even though Judge Mapes does not have the requisite minimum contacts

with New Mexico, we address the second part of the due process inquiry which

involves determining whether the exercise of personal jurisdiction over the

defendant offends “traditional notions of fair play and substantial justice.” OMI,

149 F.3d at 1091 (quotation omitted). We do so because the two requirements for

specific jurisdiction are interrelated such that an especially strong showing of

reasonableness may serve to fortify a borderline showing of minimum contacts.

Id. at 1091-92. Determining whether the second requirement is satisfied requires


                                         -7-
consideration of several factors: (1) the defendant’s burden of appearing, (2) the

forum state’s interest in adjudicating the dispute, (3) the plaintiff’s interest in

obtaining convenient and efficient relief, (4) the judicial system’s interest in

obtaining the most efficient resolution of the controversy, and (5) the common

interests of all sovereigns in promoting substantive social policies. See Burger

King, 471 U.S. at 476-77.

      We agree with the district court with regard to the reasonableness inquiry.

There do not appear to be any practical burdens or inconveniences for either party

associated with litigating the claims outside of New Mexico because both parties

currently reside in California. The Olsens have not identified any interest in the

state of New Mexico in adjudicating their dispute with Judge Mapes, nor have

they pointed to any fundamental substantive social policy that would be advanced

by litigating their claims in New Mexico. Moreover, retention of the case by the

District of New Mexico does not appear necessary to bring about an efficient

resolution. Thus, the constitutional prerequisites for the district court’s exercise

of specific jurisdiction over Judge Mapes have not been satisfied.

      For the reasons stated above, we DISMISS the appeal against Mr. Babcock

and otherwise AFFIRM.

                                         SUBMITTED FOR THE COURT

                                         Stephanie K. Seymour
                                         Circuit Judge

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