Ameritas Agent in Virgina Gets "Hometowned"

Ask any lawyer in Lincoln or Omaha what it is like litigating a case outstate, lets say in certain counties (Lincoln, Madison.) The term "hometonwed" might come up. The opening paragraph of the case that hometowned Diane Mckinney in the Nebraska Supreme Court follows (Ameritas Invest. Corp. v. McKinney,269 Neb. 564 3-25-2005)

"Diana McKinney, a resident of Virginia, was sued in the district court for Lancaster County by a Nebraska financial services corporation for damages arising out of McKinney’s agency relationship with the corporation. The action was dismissed after McKinney challenged the court’s personal jurisdiction over her. The question presented in this appeal is whether the choice of forum clauses contained in McKinney’s agency contracts provide a prima facie showing that a Nebraska court may exercise personal jurisdiction over McKinney. Because we conclude they do, we reverse the judgment of the district court and remand the cause for further proceedings." "Ameritas then filed a complaint against McKinney in the district court, seeking $22,886.87 as indemnification for its settlement with (one of Mckinney's customers.) McKinney filed a motion to dismiss pursuant to Neb. Ct. R. of Pldg. in Civ. Actions 12(b)(2) (rev. 2002), asserting that the court lacked personal jurisdiction over her pursuant to the Nebraska long-arm statute, Neb. Rev. Stat. § 25-536 (Reissue 1995), and the Model Uniform Choice of Forum Act (Choice of Forum Act), Neb. Rev. Stat. § 25-413 et seq. (Reissue 1995) To defeat a motion to dismiss for lack of personal jurisdiction, the nonmoving party need only make a prima facie showing of personal jurisdiction until trial or until the court holds an evidentiary hearing. Epps v. Stewart Information Services Corp., 327 F.3d 642 (8th Cir. 2003) See, also, Northrup King v. Compania Productora Semillas,51 F.3d 1383 (8th Cir. 1995) The Court goes on to state the "Catch 22" of improper forum/no in personam jurisdiction cases: "If the lower court does not hold a hearing and instead relies on the pleadings and affidavits, then an appellate court must look at the facts in the light most favorable to the nonmoving party and resolve all factual conflicts in favor of that party." Surprise that was AMERITAS. Here Ameritas argues that the agents agreeing to the forum selection clause waives any right she might have had to a due process "minimum contacts" analysis. "Where such forum-selection provisions have been obtained through “freely negotiated” agreements and are not “unreasonable and unjust,” . . . their enforcement does not offend due process," Burger King Corp. v. Rudzewicz, 471 U.S. at 472 (1985) A freely negotiated, reasonable and just "forum selection clause" permits a Court in a State with a long arm jurisdiction statute that encompasses as many defendants as due process allows to assert in personam jurisdiction. Still a forum selection clause might be invalid under the model choice of forum act, Nebraska Version § 25-414. McKinney apparently argued on appeal that the forum selection clause was invalid as it was within an "adhesive contract." However, the Supreme Court said McKinney did not raise this to the trial court. An issue not presented to or decided by the trial court is not appropriate for consideration on appeal. Kubik v. Kubik, 268 Neb. 337, 683 N.W.2d 330 (2004)."In any event." the Supreme court goes on to say,that even though we dont have evidence one way or the other, (we are) satisifed the Ameritas contract was not in the terms of section 25-414 (c) one obtained by misrepresentation, duress, the abuseof economic power, or other unconscionable means." It might boil down to who files suit first, the Court noting that the Plaintiff gets dibs on jurisdiction, since, in the only annotated case construing 25-414, Woodmen of the World Life Ins. Soc. v. Puccio, 1 Neb. App. 478, 499 N.W.2d 85 (1993), the Court of Appeals agreed with an out of state employee that another large Nebraska corporation's forum selection clause was invalid. Wouldnt it have been nice if the Supremes had bothered to distinguish this case?