William H. Davis, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1417

William H. Davis,
Appellant,

vs.

EagleBank,
Respondent,

Launch Sport Performance, P.C., et al.,
Respondents.

Filed June 20, 2022
Reversed and remanded
Johnson, Judge

Hennepin County District Court
File No. 27-CV-19-7874

Daniel M. Eaton, Christensen Law Office, P.L.L.C., Minneapolis, Minnesota (for
appellant)

Melissa L.B. Porter, David R. Mortensen, Logs Legal Group, L.L.P., Eagan, Minnesota
(for respondent EagleBank)

Joseph M. Windler, Kyle R. Kroll, Winthrop & Weinstine, P.A., Minneapolis, Minnesota
(for respondents Launch Sport Performance and Elizabeth Wheeler)

Considered and decided by Slieter, Presiding Judge; Johnson, Judge; and Smith,
John P., Judge.
∗

∗Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant
to Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
JOHNSON, Judge
A Minnesota resident sued a Maryland resident and two Maryland-based
companies. The district court dismissed the case on the ground that there is a lack of
personal jurisdiction over each of the three defendants. We conclude that there is personal
jurisdiction over two defendants. We further conclude that the third defendant waived the
defense of lack of personal jurisdiction. Therefore, we reverse and remand.
FACTS
The facts relevant to this appeal are found primarily in the complaint and also in the
defendants’ answers and the parties’ affidavits.
William H. Davis is a resident of Minneapolis. In 2005, he met and became friends
with Elizabeth Wheeler while she was working in Minnesota. Two years later, Wheeler
moved to Maryland. In 2010, Wheeler started a business, Launch Sport Performance P.C.
(LSP), which provided physical therapy, athletic training services, and nutrition counseling
to elite athletes and others.
Approximately three years later, Wheeler sought to expand LSP and told Davis that
she was looking for investors. Davis told Wheeler about his experience in applying for a
loan guaranteed by the Small Business Administration (SBA). Specifically, Davis told
Wheeler that he had applied for an SBA loan using two of his Minneapolis rental properties
as collateral. Wheeler decided that LSP would apply for an SBA loan. Wheeler and Davis
agreed that Wheeler could use Davis’s two Minneapolis rental properties as collateral for
LSP’s loan application. Davis alleges that, i n exchange, he and Wheeler agreed that he
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would receive a nine- percent ownership interest in LSP and would be paid $1,667 per
month as a consultant, with LSP having the option to defer Davis’s monthly payments for
two years.
In September 2013, EagleBank, which is chartered by and headquartered in the state
of Maryland, approved LSP’s application for a $500,000 loan. Wheeler signed a loan-
commitment agreement on behalf of LSP, which identified the following as collateral: a
first-priority lien on all of LSP’s assets, a lien on Davis’s two Minneapolis rental properties,
and a lien on real property owned by the Margaret D. Lundgren Trust (Lundgren Trust).
Wheeler emailed the agreement to Davis. In October 2013, Davis signed the agreement
after making two changes. First, he crossed out one of his two Minneapolis rental
properties. Second, he added a paragraph stating that, in the event of a default, EagleBank
must first exercise its right to foreclose on the land owned by the Lundgren Trust before
exercising its right to foreclose on his Minneapolis rental property. Davis faxed the revised
commitment agreement to Wheeler, who signed it and submitted it to EagleBank. In
December 2013, EagleBank sent Davis eight loan-related documents that required his
signature. Some of those documents identify both of Davis’s Minneapolis rental properties
as collateral, and none of those documents mention the Lundgren Trust. Davis signed all
eight of the documents.
In 2018, LSP defaulted on the loan. EagleBank foreclosed on both of Davis’s
Minneapolis rental properties, which were sold at a foreclosure sale in January 2019.
EagleBank did not foreclose on property owned by the Lundgren Trust.
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In May 2019, Davis commenced this action against LSP, Wheeler, EagleBank, and
the Lundgren Trust. His complaint asserts eight causes of action: (1) a declaration that his
guaranty is void, against all defendants; (2) rescission of the guaranty, against all
defendants; (3) breach of contract, against all defendants; (4) quiet title, against
EagleBank; (5) promissory estoppel, against the Lundgren Trust; (6) subrogation, against
LSP; (7) contribution, against Wheeler; and (8) breach of contract, against LSP . Davis
alleges, among other things, that he did not receive any documentation of his ownership
interest in LSP and did not receive any consulting fees from LSP.
In June 2019, EagleBank served and filed its answer. In July 2019, LSP and
Wheeler jointly moved to dismiss Davis’s complaint. LSP and Wheeler argued that there
is a lack of personal jurisdiction over them and that Davis failed to state a claim upon which
relief can be granted. In August 2019, EagleBank moved for judgment on the pleadings
with respect to Davis’s claims against the bank, arguing that he failed to state a claim upon
which relief can be granted. Various counter-claims and cross-claims also were asserted,
but they are not relevant to this appeal. I n September 2019, the parties stipulated to the
dismissal of all claims by and against the Lundgren Trust.
In October 2019, the district court granted LSP and Wheeler ’s joint motion to
dismiss Davis’s claims against them for lack of personal jurisdiction. In addition, the
district court dismissed Davis’s claims against EagleBank for lack of personal jurisdiction.
In March 2020, Davis moved for relief under rule 60, and the district court denied the
motion. In September 2021, the district court dismissed the remaining counter-claims and
cross-claims as moot and ordered the entry of final judgment. Davis appeals.
5
DECISION
Davis argues that the district court erred by dismissing his complaint for lack of
personal jurisdiction.
The concept of personal jurisdiction refers to “the court’s power to exercise control
over the parties.” Leroy v. Great West United Corp., 443 U.S. 173, 180 (1979). In
Minnesota, a state court’s personal jurisdiction over an out-of-state defendant is the subject
of a statute. See Minn. Stat. § 543.19, subd. 1 (2020). But the statute is considered broad
enough to authorize a state court to exercise personal jurisdiction over a defendant if doing
so is permitted by the Due Process Clause of the Fourteenth Amendment to the United
States Constitution. See Vikse v. Flaby, 316 N.W.2d 276, 281 (Minn. 1982); Marshall v.
Inn on Madeline Island, 610 N.W.2d 670, 673 (Minn. App. 2000) (stating that “if the
personal jurisdiction requirements of the federal constitution are met, the requirements of
the long-arm statute will necessarily be met also” (quotation omitted)). Consequently,
Minnesota courts apply federal constitutional caselaw to determine whether personal
jurisdiction exists. Rilley v. MoneyMutual, LLC, 884 N.W.2d 321, 327 (Minn. 2016).
Federal caselaw provides that a state court may exercise personal jurisdiction over
an out-of-state defendant if the defendant has “minimum contacts” with the forum state so
that the exercise of personal jurisdiction does not offend “traditional notions of fair play
and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)
(quotation omitted). To satisfy the requirement of minimum contacts, the out-of- state
defendant must have “purposefully availed” itself of the privilege of conducting activities
within the forum state such that the defendant “should reasonably anticipate being haled
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into court there.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-82 (1985) (quotation
omitted); see also Hanson v. Denckla, 357 U.S. 235, 253 (1958); V.H. v. Estate of
Birnbaum, 543 N.W.2d 649, 656-57 (Minn. 1996). There are two types of personal
jurisdiction: general jurisdiction and specific jurisdiction. Domtar, Inc. v. Niagra Fire Ins.
Co., 533 N.W.2d 25, 30 (Min n. 1995) (citing Helicopteros Nacionales de Colombia v.
Hall, 466 U.S. 408, 414 n.8 (1984)). General jurisdiction “may be exercised based on
contacts unrelated to the litigation,” such as “domicile or ‘continuous and systematic’
contacts with the forum state.” Rilley, 884 N.W.2d at 327 n.7 (quoting Daimler AG v.
Bauman, 571 U.S. 117, 126 (2014)). Specific jurisdiction may be exercised if “the
defendant’s contacts with the forum state are limited, yet connected with the plaintiff’s
claim such that the claim arises out of or relates to the defendant’s contacts with the forum.”
Domtar, 533 N.W.2d at 30.
If a defendant challenges the existence of personal jurisdiction, the plaintiff has the
burden to show that the defendant has sufficient contacts with Minn esota to support the
district court’s exercise of jurisdiction. Bandemer v. Ford Motor Co., 931 N.W.2d 744,
749 (Minn 2019); Juelich v. Yamazaki Mazak Optonics Corp., 682 N.W.2d 565, 569- 70
(Minn. 2004). If a plaintiff commences an action against multiple defendants, the plaintiff
must establish personal jurisdiction over each defendant. Keeton v. Hustler Magazine, Inc.,
465 U.S. 770, 781 n.13 (1984). Upon a motion to dismiss, a plaintiff ’s allegations in the
complaint and any supporting affidavits are assumed to be true for the purposes of
determining whether personal jurisdiction exists. Rilley, 884 N.W.2d at 326. If “a
defendant supports [a] motion to dismiss with an affidavit, the plaintiff must allege specific
7
evidence showing personal jurisdiction beyond general statements in the pleadings.”
Young v. Maciora, 940 N.W.2d 509, 514 (Minn. App. 2020) (citing Rilley, 884 N.W.2d at
334-35). A ny “doubts” about jurisdiction are “ resolved in favor of retention of
jurisdiction.” Hardrives, Inc. v. City of LaCrosse, 240 N.W.2d 814, 818 (Minn. 1976).
This court applies a de novo standard of review to a district court ’s ruling on personal
jurisdiction. Rilley, 884 N.W.2d at 326.
I. Dismissal of LSP and Wheeler
Davis argues that the district court erred by granting Wheeler and LSP’s motion to
dismiss his claims against them for lack of personal jurisdiction. Davis contends that LSP
and Wheeler have sufficient contacts with Minnesota to allow for the exercise of specific
personal jurisdiction.1
Minnesota courts apply a five-factor test to determine whether the exercise of
personal jurisdiction is consistent with due process: (1) the quantity of contacts with
Minnesota; (2) the nature and quality of the contacts with Minnesota; (3) the connection of
the cause of action with the contacts with Minnesota; (4) Minnesota’s interest in providing
a forum; and (5) the convenience of the parties. Juelich, 682 N.W.2d at 570. The first
three factors, which are the “primary factors” and determine whether the requisite
minimum contacts exist, carry the most weight. Dent-Air, Inc. v. Beech Mountain Air
Serv., Inc., 332 N.W.2d 904, 907 (Minn. 1983). The last two factors, which are the

1In his principal brief, Davis argued in the alternative that the district court erred on
the ground that LSP and Wheeler are necessary and indispensable parties to the action. But
Davis affirmatively waived that argument at oral argument.
8
“secondary factors,” determine whether the exercise of jurisdiction comports with
traditional notions of fair play and substantial justice. Marquette Nat’l Bank v. Norris, 270
N.W.2d 290, 295 (Minn. 1978).
In this case, the district court analyzed only the first and second factors and
concluded that both factors did not support the exercise of personal jurisdiction over the
out-of-state defendants. The parties agree that general jurisdiction does not exist; they
disagree as to whether specific jurisdiction exists. To resolv e Davis’s arguments for
reversal with respect to LSP and Wheeler, we will apply the five-factor test.
1. Quantity of Contacts. LSP and Wheeler had numerous contacts with Davis
while he was in Minnesota for the purpose of obtaining his agreement that LSP could use
Davis’s Minneapolis rental properties as collateral for LSP’s loan. Davis alleges in the
complaint that he and Wheeler talked about her plans to expand LSP and her need to
finance the expansion. Davis also alleges that their conversations included a discussion
about the possibility of Wheeler and LSP using Davis’s Minneapolis rental properties as
collateral for a loan. Davis alleges further that he communicated with other agents of LSP
about LSP’s interest in using his Minneapolis rental properties as collateral. In an
affidavit,2 Davis identifies the persons with whom he spoke and states, “The general tenor
of the phone discussions with these individuals was their encouragement of me to provide

2LSP and Wheeler suggest that this court should not consider Davis’s affidavit
because the affidavit was submitted to the district court after the parties had submitted their
memoranda of law on LSP and Wheeler’s motion to dismiss. The district court did not
state that the affidavit was untimely, and the district court did not strike it from the district
court record. In any event, the affidavit merely supplies specific details of the contacts that
are described more generally in the complaint.
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my rental properties as collateral for the Launch Sport loan and that they would not be able
to get the loan without me and my rental properties.” Davis also states that LSP sent him,
via e-mail, several documents concerning the proposed transaction, including a business
plan, a confidentiality agreement, financial statements, and several loan-related documents.
It is undisputed that Wheeler, acting on behalf of LSP , later sent a loan-commitment
agreement to Davis for his review and signature. In his affidavit, Davis quotes Wheeler’s
e-mail message, which stated:
Here is the commitment letter from the bank. If you are
comfortable with this, please sign and return ASAP so we can
receive the funds within 4-6 weeks. The bank is waiting for
you and I to sign this letter. If you would like to have a phone
call with Brett and Amir again to discuss Launch’s plan and
finances, please let me know. We can set that up ASAP. You
are such a huge part of this dream coming true!!!

Davis signed the agreement and faxed it back to Wheeler.
Even a “single, isolated transaction between a nonresident defendant and a resident
plaintiff,” with even a relatively small number of contacts, may be sufficient to justify the
exercise of personal jurisdiction. Marquette Nat’l Bank, 270 N.W.2d at 293, 295; see also
Northwestern Nat’l Bank v. Kratt, 226 N.W.2d 910, 911-12, 914 (Minn. 1975); Viking
Eng’g & Dev., Inc. v. R.S.B. Enters., Inc., 608 N.W.2d 166, 169 (Minn. App. 2000), rev.
denied (Minn. May 23, 2000). This court previously has upheld the exercise of personal
jurisdiction based on a relatively small number of telephonic or electronic contacts
concerning a business transaction. See Viking Eng’g, 608 N.W.2d at 168, 170 (concluding
that 24 phone calls, faxes, and letters, as well as signing of purchase agreement and
acceptance of check, were sufficient to establish minimum contacts); Trident Enters. Int’l,
10
Inc. v. Kemp & George Inc., 502 N.W.2d 411, 415-16 (Minn. App. 1993) (concluding that
fewer than ten telephone, mail, and fax contacts that induced Minnesota company to enter
into contract were sufficient to establish minimum contacts); see also Rebecca Minkoff
Apparel, LLC v. Rebecca Minkoff, LLC, 2018 WL 3014942, at *1-4 (Minn. App. June 18,
2018) (concluding that negotiations with Minnesota company by e -mail and telephone
were sufficient to establish minimum contacts).
Thus, the quantity of contacts between LSP and Wheeler and Minnesota is sufficient
to allow for the exercise of personal jurisdiction.
2. Nature and Quality of Contacts . Because Wheeler and LSP’s contacts with
Minnesota are relatively few and concern a single transaction, the quality and nature of the
contacts is significant. See Marquette Nat’l Bank, 270 N.W.2d at 295. That Wheeler and
other representatives of LSP were not present in Minnesota during the relevant time period
is not significant. See id. Contacts by telephone and e-mail may have the requisite nature
and quality. Rilley, 884 N.W.2d at 329-32; Marquette Nat’l Bank, 270 N.W.2d at 295;
Viking Eng’g, 608 N.W.2d at 168, 170. The question is whether those contacts
“demonstrate ‘purposeful direction’ toward Minnesota and a ‘purposeful availment’ of the
benefits of doing business in a Minnesota forum.” Rilley, 884 N.W.2d at 333.
The contacts described above relate directly to the transaction that is the factual
basis of this lawsuit. LSP and Wheeler wanted—and apparently needed—Davis’s
agreement to allow his Minneapolis rental properties be used as collateral for LSP’s loan.
Wheeler and other LSP representatives had multiple contacts with Davis to persuade him
to assist L SP in that way and to complete the transaction. As far as the record appears,
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Davis was located in Minnesota throughout the relevant time period. In doing so, LSP and
Wheeler “purposely availed” themselves of the benefits of doing business in Minnesota.
LSP and Wheeler relied on and benefitted from Davis’s agreement to provide collateral for
LSP’s loan. In addition, LSP and Wheeler indirectly relied on and benefitted from
EagleBank’s security interest in Minnesota real property, which allowed EagleBank to
recover loan principal and interest by foreclosing on Minnesota real property under
Minnesota law. See Marquette Nat’l Bank, 270 N.W.2d at 292-97 (concluding that district
court properly exercised personal jurisdiction over Illinois guarantors who had negotiated
with Minnesota residents and Minnesota bank by telephone and mail); Northwestern Nat’l
Bank, 226 N.W.2d at 911-12, 914 (concluding that district court properly exercised
personal jurisdiction over Illinois guarantor who had negotiated financing of Minnesota
housing project via telephone and in-person meetings).
Thus, the nature and quality of contacts between LSP and Wheeler and Minnesota
supports the exercise of personal jurisdiction.
3. Connection of the Cause of Action with Contacts. The above-described
contacts are directly connected to Davis’s claims against LSP and Wheeler. Thus, this
factor supports the exercise of personal jurisdiction.
4. Interest of the State in Providing a Forum . In general, Minnesota has an
interest in providing a forum for its residents who allegedly have been
wronged. Dent-Air, 332 N.W.2d at 908. That principle applies to Davis’s allegations in
this case. Thus, this factor supports the exercise of personal jurisdiction.
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5. Convenience of the Parties . The two key witnesses with respect to Davis’ s
claims against LSP and Wheeler are Davis and Wheeler. Either Davis will need to travel
to Maryland, or Wheeler will need to travel to Minnesota. In this situation, the
“convenience of the parties and witnesses is a neutral factor in the analysis.” Juelich, 682
N.W.2d at 576. Thus, this factor does not favor either conclusion.
In sum, because all three primary factors weigh in favor of the exercise of personal
jurisdiction over LSP and Wheeler, and because the secondary factors do not contradict the
primary factors, the district court erred by granting LSP and Wheeler’s motion to dismiss
for lack of personal jurisdiction.3
II. Dismissal of EagleBank
Davis also argues that the district court erred by dismissing his claims against
EagleBank on the ground that there is a lack of personal jurisdiction over the bank. Davis
contends that the district court’s ruling is erroneous for three reasons: (1) there is in rem
jurisdiction, (2) EagleBank waived the defense of lack of personal jurisdiction, and (3) the

3LSP and Wheeler purport to argue in the alternative that, even if the district court
erred by ruling that there is a lack of personal jurisdiction over them, this court may affirm
the district court’s dismissal on the alternative ground that Davis failed to state a claim
upon which relief can be granted. The district court did not consider that part of LSP and
Wheeler’s motion because the district court determined that there was a lack of personal
jurisdiction. LSP and Wheeler’s brief does not actually discuss the viability of any of the
six claims that Davis has asserted against them. Rather, the brief merely refers, in a general
and sweeping manner, to the memoranda that LSP and Wheeler filed in the district court.
Because LSP and Wheeler have not properly briefed the viability of Davis’s claims against
them, we will not consider the issue. See State, Dep’t of Labor & Indus. v. Wintz Parcel
Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997); Ganguli v. University of Minnesota, 512
N.W.2d 918, 919 n.1 (Minn. App. 1994). Nothing in this opinion prevents LSP and
Wheeler from renewing their rule 12.02(e) arguments in the district court on remand.
13
district court improperly ruled sua sponte on the issue of personal jurisdiction even though
EagleBank did not move to dismiss on that ground.
We begin by considering Davis’s second argument. The defense of lack of personal
jurisdiction may be asserted either in a responsive pleading or in a motion. Minn. R. Civ.
P. 12.02. If asserted by motion, the defense may be asserted along with other grounds for
dismissal identified in rule 12.02. Minn. R. Civ. P. 12.07. If a defendant moves to dismiss
on another ground identified in rule 12.02 but does not move to dismiss for lack of personal
jurisdiction, the defendant “shall not thereafter make a motion based on” a lack of personal
jurisdiction. See id.
A defense of lack of jurisdiction over the person,
insufficiency of process, or insufficiency of service of process
is waived (1) if omitted from a motion in the circumstances
described in Rule 12.07, or (2) if it is neither made by motion
pursuant to this rule nor included in a responsive pleading or
an amendment thereof permitted by Rule 15.01 to be made as
a matter of course.

Minn. R. Civ. P. 12.08(a) (emphasis added).
In this case, EagleBank did not plead the defense of lack of personal jurisdiction in
its answer. EagleBank also did not argue in its rule 12 motion that there is a lack of personal
jurisdiction. Rather, EagleBank moved to dismiss on the ground that Davis failed to state
a claim upon which relief can be granted. Consequently, EagleBank waived the defense
of lack of personal jurisdiction. See Minn. R. Civ. P. 12.07, 12.08(a).
Thus, the district court erred by dismissing Davis’s claims against EagleBank on the
ground that there is a lack of personal jurisdiction over EagleBank. In light of that
14
conclusion, we need not consider Davis’s other arguments for reversal with respect to
EagleBank.4
Reversed and remanded.

4EagleBank argues in the alternative that, even if the district court erred by ruling
that there is a lack of personal jurisdiction over the bank, this court should affirm on the
ground that “the district court’s order is analogous to declining jurisdiction under a forum
non conveniens analysis.” This court may affirm a district court’s dismissal on an
alternative ground if the alternative ground was presented to the district court. See Day
Masonry v. Independent Sch. Dist. 347, 781 N.W.2d 321, 331 (Minn. 2010). EagleBank
did not invoke the doctrine of forum non conveniens in its motion to dismiss, and the district
court did not discuss the doctrine. Thus, we may not consider EagleBank’s alternative
argument for the first time on appeal.