In a November 12, 2013 opinion, Thompson Hine, LLP v. Taieb, the US Court of Appeals for the District of Columbia Circuit held that a non-resident's retention of lawyers in a District of Columbia office was insufficient to establish personal jurisdiction absent any other deliberate contact with the forum.

At the time of the underlying events, Elicko Taieb was a Florida resident and the majority owner, president and CEO of Smoking Everywhere, Inc. (SEI), a Florida corporation with its principal place of business in Florida. In March 2009, SEI retained Thomspon Hine LLP to handle a matter before the Food and Drug Administration (the "FDA matter"). Thompson Hine was an Ohio-based law firm. However an attorney in the firm's Atlanta office signed the retainer letter, written on Atlanta office letterhead, and provided his billing rate. He then supervised the work of two attorneys in the firm's Washington DC office on the FDA matter. Mr. Taieb met with all the attorneys in the DC office prior to a favorable resolution of the matter. Mr. Taieb himself was not a party to the retainer agreement.

Later that year, the firm entered into a second retainer, this time with both SEI and Taieb, in connection with a matter pending in Oregon (the "Oregon matter"). Written on DC letterhead, this second retainer letter was faxed from Atlanta. The retainer also included contact information for the Atlanta-based attorney and provided billing rates for three DC-based attorneys. The DC attorneys provided declarations that they performed work on the Oregon matter in the DC office and exchanged at least ten e-mails related to both the FDA and Oregon matters.

After SEI and Mr. Taieb failed to pay Thompson Hine's full legal bills, the firm sued them in the United States District Court for the District of Columbia. SEI and Mr. Taieb moved to dismiss for lack of personal jurisdiction, arguing that they had little or no contact with the District of Columbia. Calling the case "close," the district court found Thompson Hine ultimately did not meet its burden of proving the court had personal jurisdiction over either defendant and dismissed the complaint.

Thompson Hine appealed. Because SEI had gone bankrupt, and it was the only party to the FDA retainer, the remaining issue was whether personal jurisdiction was proper over Mr. Taieb with respect to the Oregon matter. The court rejected Thompson Hine's assertion that the FDA matter remained relevant. The relationship that developed during that matter was with the supervising attorney in Atlanta. Moreover, the names of the DC-based attorneys appeared no where on the FDA retainer and contact with them did not demonstrate the kind of purposeful direction of activities needed to satisfy the US Supreme Court's test in Burger King v. Rudzewicz.

Turning to the Oregon matter, the DC Circuit rejected Thompson Hine's argument that the retainer (written on DC letterhead) alone established the requisite "minimum contacts" with the District required to establish personal jurisdiction under Burger King. To the contrary, the court found that it must look beyond the mere existence of the contract to the question of whether the parties' activities and actual course of dealings demonstrated purposeful availment of the forum. The court concluded that Mr. Taieb's engagement with Thompson Hine was insufficient to establish minimum contacts with the District because:

The court distinguished certain federal cases that held personal jurisdiction existed over non-residents who knowingly retained DC counsel to perform legal services in the District, because those cases reflected far more extensive contacts than those between Mr. Taieb and Thompson Hine. The court also rejected certain state court cases which sustained personal jurisdiction even when contacts between the law firm and client were slim. The DC Circuit determined that any mechanical test that automatically allows a contract, such as a retainer agreement, with a non-resident to establish personal jurisdiction would run afoul of the requirements delineated in Burger King. Instead, the quality and nature of activities directed to the District must be examined.

Counsel should be aware that merely retaining a DC law firm to perform legal services, without more, is likely insufficient to establish the substantial connection to the forum needed to support personal jurisdiction in the District.