                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-2192
                                    ___________

Mary E. Bonner Johnson,                  *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
Richard W. Woodcock,                     *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: April 7, 2006
                                 Filed: April 11, 2006
                                  ___________

Before WOLLMAN, LAY, and MELLOY, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

     Mary E. Bonner Johnson appeals the district court’s1 grant of Richard W.
Woodcock’s motion to dismiss for lack of personal jurisdiction. We affirm.2


      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
      2
       Because we hold that the district court lacked personal jurisdiction, we do not
reach the merits of Johnson’s Lanham Act claim. We are not empowered to issue
opinions on moot questions or to declare rules of law that do not affect the case before
us. Republican Party of Minnesota v. Klobuchar, 381 F.3d 785, 790 (8th Cir. 2004).
In addition, we affirm the district court’s dismissal even though the court was
                                           I.

       Johnson and Woodcock began working together in 1968. Johnson first served
as Woodcock’s secretary at American Guidance Services, a Minnesota company
where Woodcock was involved in the development of psychological and cognitive
ability tests. This relationship flourished for a time, and when Woodcock left
American Guidance Services in 1972 to form Measurement Learning Consultants
(MLC), Johnson joined him at the new firm as the assistant director. While working
together at MLC, Woodcock developed a series of psychological tests, the most
significant of which is the Woodcock-Johnson Psychoeducational Battery (Battery).
The level of Johnson’s involvement is disputed, but Johnson alleges that she was the
co-author of the Battery and was significantly involved in the substantive
development of the tests.

      When Teaching Resources Corporation (Teaching Resources) published the
Battery in 1976, Woodcock and Johnson entered into a contract that allocated ninety
percent of the royalties to Woodcock and the remaining ten percent to Johnson. In
1977, Woodcock moved MLC’s operations to Oregon. Johnson remained in
Minnesota, but she and Woodcock continued to have a business relationship
throughout the 1980s, working together on revisions to the Battery. In February 1986,
they entered into a publishing contract for the revised edition of the Woodcock-
Johnson Battery.



empowered by 28 U.S.C. § 1631 to transfer the action to another court to cure the lack
of jurisdiction. Johnson did not request such a transfer either in the district court or
in the briefs or during oral argument before this court and now raises the issue
belatedly by way of a petition for rehearing. Accordingly, we deem any request for
a transfer to have been waived. See, e.g., Chay-Velasquez v. Ashcroft, 367 F.3d 751,
756 (8th Cir. 2004) (failure to raise issue in opening brief on appeal generally
constitutes waiver).

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       After Woodcock moved his residence from Minnesota in 1977, he resided in
several other states, including Oregon, California, and Tennessee. Except for a short
period in the early 1980s, he has not had a Minnesota residence since 1977 and has
had limited contact with that state. Woodcock continued to have a working
relationship with Johnson until 1989, and they have occasionally corresponded and
conversed over the years. Woodcock has also published two books through American
Guidance Services, a Minnesota company.

       In 1997, Woodcock and three new co-authors, including Kevin McGrew, a
Minnesota resident, entered into a contract with Riverside Publishing Company to
publish a third revision to the Battery. The third revision was published in 2001.
Although she was not a party to the 1997 contract, Johnson claimed a right to royalty
payments thereunder. She filed this action against Woodcock in the District of
Minnesota, alleging violations of the Lanham Act and the Minnesota Deceptive Trade
Practices Act, as well as intentional interference with business relations,
misrepresentation, breach of contract, and promissory estoppel. The district court
dismissed the suit for lack of personal jurisdiction over Woodcock.

                                         II.

       We review de novo a dismissal for lack of personal jurisdiction. Porter v.
Berall, 293 F.3d 1073, 1075 (8th Cir. 2002). The party asserting personal jurisdiction
has the burden of establishing a prima facie case. Epps v. Stewart Information Service
Corp., 327 F.3d 642, 647 (8th Cir. 2003). Because Minnesota’s long-arm statute is
coextensive with constitutional limits, we need only determine whether the assertion
of jurisdiction over this defendant offends due process. Minnesota Mining & Mfg. v.
Nippon Carbide Indus., 63 F.3d 694, 696-97 (8th Cir. 1995).

     Personal jurisdiction exists only if the contacts between the defendant and the
forum state are sufficient to establish that the defendant has purposefully availed

                                         -3-
himself of the benefits and protections of the forum state. Porter, 293 F.3d at 1075.
This purposeful availment must be sufficient to provide the defendant with fair
warning that his activities might result in his being haled into court in that jurisdiction.
Id. “Minimum contacts must exist either at the time the cause of action arose, the
time the suit was filed, or within a reasonable period of time immediately prior to the
filing of the lawsuit.” Pecoraro v. Sky Ranch For Boys, Inc., 340 F.3d 558, 562 (8th
Cir. 2003).

       The nonmoving party also must establish that a “substantial connection” exists
between the defendant and the forum state. Porter, 293 F.3d at 1075 (citing Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)). We consider five factors in
determining whether a substantial connection exists: (1) the nature and quality of the
contacts with the forum state; (2) the quantity of the contacts with the forum state; (3)
the relation of the cause of action to those contacts; (4) the interest of the forum state
in providing a forum for its residents; and (5) the convenience of the parties. Id. at
1076. The last two factors carry less weight and are not dispositive. Id.

       In Helicopteros Nacionales de Colombia, S.A. v. Hall, the Supreme Court
articulated two theories for finding personal jurisdiction: specific jurisdiction and
general jurisdiction. See 466 U.S. 408, 414-15 (1984). Specific jurisdiction can only
be found if the controversy is “related to or ‘arises out of’” the defendant’s contacts
with the forum state. Id. at 414. General jurisdiction exists where the contacts
between the defendant and the forum state are “continuous and systematic” even if
there is no relationship between the contacts and the cause of action. Id. at 415.

      Regarding specific jurisdiction, Johnson makes only a conclusory assertion that
the causes of action are related to the relationship that Woodcock established and
maintained with Minnesota and Johnson. The burden to establish a prima facie case
of personal jurisdiction is on the party asserting jurisdiction, and Johnson does not
meet that burden. The only relevant contacts that are related to or give rise to the

                                            -4-
controversy here are the contacts between Woodcock and Johnson. Those contacts
are too random, fortuitous, or attenuated to support an assertion of jurisdiction in this
case. The contacts asserted in the 1960s, 70s, and 80s are not within the reasonable
timeframe required by Pecararo. 340 F.3d at 562. The occasional correspondences
between Johnson and Woodcock similarly do not support jurisdiction. “Contact by
phone or mail is insufficient to justify exercise of personal jurisdiction under the due
process clause.” Porter, 293 F.3d at 1076. The only other asserted contacts are those
between Woodcock and McGrew and those between Woodcock and a publishing
company in Minnesota. Johnson has made no attempt to explain how any of those
contacts are related to the causes of action here. Johnson’s conclusory allegations do
not satisfy her burden to establish a prima facie case of specific jurisdiction.

       Johnson’s primary argument is that general jurisdiction exists over Woodcock
in Minnesota. The contacts Johnson articulates, however, fall short of the “continuous
and systematic general business contacts” required to find general jurisdiction. See
Helicopteros, 466 U.S. at 416. The correspondence between Woodcock and Johnson
does not support general jurisdiction. See Porter, 293 F.3d at 1076. The other
business contacts between Woodcock and Minnesota that fall within the relevant time
frame, involving some collaboration with a Minnesota resident on one project and a
publishing relationship with a Minnesota company, are also insufficient to warrant
general jurisdiction. Cf. Helicopteros, 466 U.S. at 418 (“[W]e hold that mere
purchases, even if occurring at regular intervals, are not enough to warrant a State’s
assertion of in personam jurisdiction over a nonresident corporation in a cause of
action not related to those purchase transactions.”).

       Johnson argues that the magistrate judge found general jurisdiction over some
claims and that because Woodcock did not challenge this finding, the issue was
waived. Woodcock did challenge this finding in the district court, however, so the
issue was preserved. Johnson further argues that the district court abused its
discretion in denying her motion to supplement the record. The district court

                                          -5-
adequately justified this decision based on its interest in encouraging parties to present
all evidence to the magistrate judge in a clear and timely fashion. Moreover, Johnson
has not shown how the requested expansion of the record would create evidence of
sufficient contacts to affect the outcome of this issue. Accordingly, the district court
did not abuse its discretion in refusing to accept evidence that was not presented to the
magistrate judge.

      The order of dismissal is affirmed.
                      ______________________________




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