Joel Wells, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0063

Joel Wells, petitioner,
Appellant,

vs.

Jeffrey Michael Fischbach,
Respondent.

Filed December 10, 2018
Reversed and remanded
Florey, Judge

Dakota County District Court
File No. 19AV-CV-17-1678

Daniel L. Gerdts, Minneapolis, Minnesota (for appellant)

Melvin R. Welch, Minneapolis, Minnesota (for respondent)

Considered and decided by Florey, Presiding Judge; Ross, Judge ; and Reyes, Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
The district court dismissed a ppellant’s petition for a harassm ent restraining order
(HRO) for lack of personal jurisdiction over respondent. On appeal, appellant argues both
that the district court erred by finding a lack of personal jur isdiction and that respondent
waived any objection to persona l jurisdiction. Because appella nt made a prima facie
showing of personal jurisdiction, we reverse and remand for further proceedings.

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FACTS
Appellant Joel Wells was indicted on federal charges and in 2009 pleaded guilty to
possession of child pornography. Appellant lives in Minnesota. Respondent Jeffrey
Michael Fischbach lives in California and is an expert in the field of digital contraband. In
2008, appellant sought respondent’s expert services, and respon dent was hired by
appellant’s legal-defense team. Respondent traveled to Minneso ta to participate in the
legal defense. At some point, a grudge developed between the parties, apparently over the
return of respondent’s professional fees, which appellant felt were unearned.
Following appellant’s release fro m prison, the parties engaged in back-and-forth
litigation. Appellant sued respondent in Minnesota seeking $15,000 in allegedly unearned
fees and the return of property, and respondent travelled to Mi nnesota in March 2016 to
respond to the claim. Respondent sued appellant in Minnesota, but dismissed his own suit
in September 2017. Respondent sought a restraining order in California against appellant,
but the action was dismissed b ecause respondent failed to prove his case. In Minnesota,
appellant sought an HRO against respondent, and it appears that the HRO was granted, but
then dismissed in April 2017 pursuant to a settlement agreement reached on March 1, 2017.
Both parties claim that the other breached the settlement agreement.
In June 2017, appellant filed a petition for an HRO against res pondent, and the
present appeal arises from this HRO proceeding. Appellant alleged that respondent made
harassing phone calls and emails and made false reports with tw o police departments,
appellant’s probation officers, and others. Appellant alleged that respondent stole $10,000
and destroyed property, and that he suffered post-traumatic-str ess disorder as a result of

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respondent’s harassing behavior. Appellant did not request a h earing, unless his petition
was denied.
The district court granted an ex parte HRO. The court found r easonable grounds to
believe that respondent harassed appellant. The ex parte HRO w as served on respondent
in California. In August 2017, respondent, via email, requested an HRO hearing, and asked
to appear by phone. A hearing was set for August 31, and the c ourt permitted respondent
to appear by phone. At the August 31 hearing, respondent’s att orney challenged
jurisdiction, and the district court requested that written motions be filed and served on the
issue. The matter was continued.
In September 2017, respondent m oved to dismiss appellant’s HRO for lack of
personal jurisdiction, asserting that he had insufficient conta cts with Minnesota.
Respondent filed an affidavit with his motion. Appellant, in t urn, filed motions and
affidavits providing some additional clarity for his HRO claims . Appellant affirmed that
respondent made “insane claims ” about appellant threatening to abduct and harm
respondent’s children. Appellant also affirmed that respondent made “psychotic
allegations” to the Eagan Police Department, appellant’s probation officer, and others.
Appellant submitted a prior affidavit from respondent from November 2016. In that
affidavit, respondent affirmed that appellant made comments abo ut respondent’s children
at a prior hearing in March 2016, and respondent affirmed that he contacted Eagan police,
spoke with a detective, and was referred to appellant’s probati on officer, who requested
copies of email messages received by respondent from appellant. Respondent also
affirmed that, as a result of forwarding appellant’s email mess ages, appellant lost the use

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of Internet in his home, was f ound in violation of release cond itions, and was placed on
Global Positioning System monitoring.
In December 2017, the district court dismissed with prejudice appellant’s HRO
petition for lack of personal jurisdiction. The court found th at the settlement agreement
prohibited appellant from filing for an HRO based upon claims t hat were mutually
dismissed via the settlement agre ement. Therefore, the distric t court determined that the
basis for appellant’s HRO action needed to occur after March 1, 2 0 1 7 , t h e d a t e o f t h e
agreement. The court concluded that it did not have personal jurisdiction over respondent
and therefore dismissal was proper. The court concluded that r espondent had “met his
burden” of challenging personal jurisdiction, that appellant co uld not therefore rely on
general statements in his pleadi ng to establish jurisdiction, a nd that respondent’s limited
contacts with Minnesota showed a lack of personal jurisdiction. This appeal followed.
D E C I S I O N
Appellant raises two arguments. First, he asserts that Minnesota’s long-arm statute
allows for personal jurisdicti on over respondent because respon dent’s directed contacts
with Minnesota caused appellant injury and/or property damage. Second, appellant asserts
that respondent waived his jurisdictional challenge by invoking the power of the court and
by failing to promptly challenge jurisdiction. Because respond ent’s contacts with
Minnesota are sufficient for personal jurisdiction under Minnes ota’s long-arm statute, we
need only address appellant’s first argument.
Whether personal jurisdiction exists is a legal question, which we review de novo.
Juelich v. Yamazaki Mazak Optonics Corp. , 682 N.W.2d 565, 569 (Minn. 2004). When

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reviewing a motion to dismiss for lack of personal jurisdiction , appellate courts must
determine whether the petitioner has made a prima facie showing of personal jurisdiction.
Rilley v. MoneyMutual, LLC, 884 N.W.2d 321, 326 (Minn. 2016). In determining whether
a prima facie showing has been made, the factual allegations in the complaint and
supporting affidavits are taken as true. Id.; Hardrives, Inc. v. City of LaCrosse, 240 N.W.2d
814, 816 (Minn. 1976). Any doubts about jurisdiction are “reso lved in favor of retention
of jurisdiction.” Hardrives, 240 N.W.2d at 818.
Under Minnesota’s long-arm statute, Minn. Stat. § 543.19, subd. 1 (2018):
As to a cause of action arising from any acts enumerated
in this subdivision, a court of this state with jurisdiction of the
subject matter may exercise personal jurisdiction over
any . . . nonresident individual . . . in the same manner as
if . . . the individual were a resident of this state. This se ction
applies if, in person or through an agent, the . . . nonresiden t
individual:
(1) owns, uses, or possesses any real or personal
property situated in this state; or
(2) transacts any business within the state; or
(3) commits any act in Minnesota causing injury or
property damage; or
(4) commits any act outside Minnesota causing injury
or property damage in Minnesota, subject to the following
exceptions when no jurisdiction shall be found:
(i) Minnesota has no substantial interest in providing a
forum; or
(ii) the burden placed on the defendant by being brought
under the state’s jurisdicti on would violate fairness and
substantial justice.

The long-arm statute allows Minnesota courts to assert personal jurisdiction over a
respondent to the full extent permissible under federal due-process requirements. Juelich,
682 N.W.2d at 570. To abide by due-process requirements, a respondent must have certain

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minimum contacts with Minnesota, and the exercise of jurisdicti on must not offend
traditional notions of fair pla y and substantial justice. Id. In Minnesota, five factors are
analyzed to determine whether th e minimum contact and fair-play requirements are met:
“(1) the quantity of contacts with the forum state; (2) the nat ure and quality of those
contacts; (3) the connection of t he cause of action with these contacts; (4) the interest of
the state providing a forum; and (5) the convenience of the parties.” Rilley, 884 N.W.2d at
328 (quotation omitted). The fir st three factors concern minim um contacts, and the last
two concern fair play and substantial justice. Id. We first address minimum contacts.
Minimum contacts exist when a respondent purposefully avails hi mself of the
privileges, benefits, and protec tions of Minnesota to such a de gree that he should
reasonably anticipate being called into court. Id. at 327. The minimum-contacts
requirement may be satisfied in the context of general personal jurisdiction or specific
personal jurisdiction. Domtar, Inc. v. Niagara Fire Ins. Co. , 533 N.W.2d 25, 30 (Minn.
1995). At oral argument, appellant conceded that only specific personal jurisdiction is
relevant in this case. Specific personal jurisdiction exists w hen the respondent’s contacts
with Minnesota are limited, but the petitioner’s claim arises out of or relates to those limited
contacts. Id.
Appellant alleged in his HRO petition that respondent made several harassing phone
calls and emails, including false statements to “at least two p olice departments, United
States [p]robation officers, attorneys, court officials and others,” and appellant alleged that
this harassment caused harm, including triggering post-traumati c-stress disorder.
Appellant submitted an affidavit i ndicating that respondent mad e false statements to law

7
enforcement in Minnesota. In de termining whether appellant has made a prima facie
showing of jurisdiction, we do not delve into the merits of app ellant’s claims, but simply
accept the factual allegations in appellant’s petition and supporting affidavits as true. See
Rilley, 884 N.W.2d at 326. Under this standard of review, on the limited issue of personal
jurisdiction, appellant has made a prima facie showing of minimum contacts.
Specific personal jurisdiction does not require that a respondent actually set foot in
Minnesota, and “minimum contacts may exist when an out-of-state [respondent]
purposefully directs activities at the forum state, and the lit igation arises out of or relates
to those activities.” Id. at 327-28 (quotations omitted). Although respondent’s contacts
with Minnesota have been limited in quantity, they have largely concerned the ongoing
dispute with appellant, and appe llant’s HRO claim arises direct ly from respondent’s
alleged contacts with law enforcement in this forum state. Add itionally, respondent has
not merely responded to litigatio n in Minnesota, but has commen ced his own litigation
h e r e a g a i n s t a p p e l l a n t . M i n i m u m c o n t a c t s w i t h M i n n e s o t a a r e p resent and support the
exercise of personal jurisdiction.
We next determine whether appellant made a prima facie showing that it is fair and
reasonable to exercise jurisdiction over respondent. Id. at 328. Accepting, as we must,
that respondent contacted law e nforcement and appellant’s proba tion agent in Minnesota
and made false statements that injured appellant, it is fair and reasonable to find jurisdiction
over respondent. Accepting appe llant’s factual allegations as true, Minnesota has an
interest in providing a forum for relief for its citizens injured by slander coming from out
of state. It is no doubt an inconvenience for respondent to tr avel to Minnesota, but the

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district court made accommodations in the past, allowing respon dent to appear by phone,
and the district court indicated that it would allow respondent to appear by interactive
television if the matter proceeded to an evidentiary hearing. The exercise of jurisdiction in
this case does not offend traditional notions of fair play and substantial justice.
The district court relied on Hoff v. Kempton, 317 N.W.2d 361, 363 n.2 (Minn. 1982),
in concluding that respondent “met his burden to challenge the personal jurisdiction.” In
Hoff, the plaintiff utilized an uncon stitutional means of establish ing quasi-in-rem
jurisdiction. Id. at 362-63. Despite this, the plaintiff in Hoff suggested that his claim should
not be dismissed because of the possibility that the defendant had minimum contacts with
Minnesota. Id. at 363 n.2. But the plaintiff failed to submit “any supporting documents”
after the defendant affirmed no contacts with Minnesota. Id. This case is distinguishable
because appellant alleged actual contacts in his pleading, and he submitted affidavits
indicating that respondent contacted law enforcement in Minnesota.
Lastly, the district court, with out legal citation, concluded that the parties’ March 1
settlement agreement precluded a ppellant from seeking an HRO ba sed on claims that
occurred prior to that agreement. However, both parties allege d that the settlement
agreement was breached by the other party. “It is elementary that a breach of a contract by
one party excuses performance by the other.” Wasser v. W. Land Secs. Co., 107 N.W. 160,
162 (Minn. 1906). Given the p rocedural posture, it was improper for the district court to
disregard appellant’s claim of breach and allegations arising prior to March 1, 2017.
Without addressing the merits of the case, and accepting, as we must, appellant’s
allegations and supporting evidence as true, appellant has made a prima facie showing that

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the district court has personal jurisdiction over respondent. We therefore reverse and
remand for further proceedings.
Reversed and remanded.