ERC Specialists v. Schoolmates

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 13, 2026
• Docket: 25-4116
• Status: Unpublished

Opinion

Appellate Case: 25-4116 Document: 44-1 Date Filed: 07/13/2026 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS July 13, 2026 FOR THE TENTH CIRCUIT _________________________________ Christopher M. Wolpert Clerk of Court ERC SPECIALISTS, LLC, a Utah limited liability company,

Plaintiff - Appellant,

v. No. 25-4116 (D.C. No. 2:24-CV-00727-DAO) SCHOOLMATES, NFP, (D. Utah)

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT * _________________________________

Before TYMKOVICH, BACHARACH, and FEDERICO, Circuit Judges. _________________________________

This appeal arises from an archetypical fact pattern. ERC Specialists,

LLC, contracted to provide consulting services to Schoolmates, NFP. ERC

Specialists provided the contracted-for services. When the bill came due for

ERC Specialists’ services, Schoolmates failed to pay. So, ERC Specialists

*After examining the brief and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. Appellate Case: 25-4116 Document: 44-1 Date Filed: 07/13/2026 Page: 2

sued. But it could find no recompense. The District of Utah, sitting in

diversity, held that exercise of personal jurisdiction over Schoolmates would

violate due process and dismissed the case. Stymied but persistent, ERC

Specialists now appeals to this court.

Schoolmates has indicated no intent to participate in the appeal, and

its lawyer from the trial court proceedings represented that the entity is

now defunct. Nonetheless, because ERC Specialists is aggrieved by the

judgment below, we have jurisdiction to hear its appeal. A careful

examination of the record, the district court order, and caselaw reveals that

Schoolmates did not have sufficient minimum contacts with the state of

Utah to allow for the exercise of personal jurisdiction by a federal court

sitting in that state. We affirm.

I

ERC Specialists is a Utah company that helped client companies

apply for a tax credit created during the coronavirus pandemic. Schoolmates

was, at that time, an Illinois not for profit corporation that managed a

charter school in Chicago. The tax credit in question, known as the

Employee Retention Credit, was available in connection with certain

employee wages paid from March 2020 through the end of December 2021.

Employee Retention Credit, IRS (updated June 12, 2026),

https://perma.cc/B8WQ-4ZV4. Although how the parties came into contact

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is not clearly resolved by the record, they ultimately contracted for ERC

Specialists to help Schoolmates obtain the tax credit.

Rather than providing its services in exchange for a lump sum,

Schoolmates agreed to pay fifteen percent of the tax credit to ERC

Specialists if it was ultimately secured. This arrangement for payment on

a percentage basis was apparently ERC Specialists’ regular practice. See

Tri-Cities Restoration LLC v. ERC Specialists, LLC, No. 2:24-CV-00816-

RJS-DBP, 2025 WL 2050096, at *2 (D. Utah July 22, 2025) (describing same

fee arrangement); ERC Specialists, LLC v. Boring Co., No. 2:25-CV-00387-

DBB-CMR, 2025 WL 2480719, at *1 (D. Utah Aug. 28, 2025) (same). The

parties’ agreement also provided that if the IRS declined to issue a tax

credit, ERC Specialists would receive no fee. However, if the IRS were to

pay the tax credit and then claw back any portion, ERC Specialists would

nonetheless retain the entirety of its fee already collected. Additionally, the

parties agreed that they would request the IRS send checks containing any

credit funds to a third-party escrow agent, rather than to Schoolmates’

business address.

Despite these contractual agreements, no checks were mailed to the

escrow agent, and ERC Specialists was not paid in the anticipated course of

business. Instead, ERC Specialists alleges, Schoolmates withheld all the

nearly $125,000 due for its fee.

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As a result, ERC Specialists filed a complaint in Utah state court

alleging breach of contract and, in the alternative, unjust enrichment. The

state-court complaint sought damages in the amount of the withheld fees

as well as interest, costs, and attorneys’ fees. Schoolmates thereafter filed

a notice of removal in the District of Utah on the basis of the parties’

diversity of citizenship. See 28 U.S.C. §§ 1332, 1441, and 1446. ERC

Specialists did not seek a remand to state court.

Now in federal court, Schoolmates filed a motion to dismiss for lack of

personal jurisdiction. See Fed. R. Civ. P. 12(b)(2). ERC Specialists opposed

this motion and filed in response an affidavit by its general counsel as well

as the parties’ written agreement. Schoolmates filed a reply brief supported

by its own affidavit and a set of emails pertaining to the parties’ agreement.

The district court heard argument on the motion but did not conduct an

evidentiary hearing. It looked to the complaint and the parties’ affidavits

and determined that ERC Specialists had not carried its burden to establish

the existence of personal jurisdiction.

ERC Specialists timely appealed to this court. After ERC Specialists

had filed its notice of appeal – but before filing its Opening Brief –

Schoolmates’ attorney moved to withdraw from the case. This court denied

the motion without prejudice. In a renewed motion, counsel elaborated that

her client was “no longer conducting any business, does not have any

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employees, and [] all of the decisionmakers for the entity have retired and/or

resigned.” Doc. 37 at 1–2. She stated that “to the best of her knowledge,

Schoolmates does not intend to participate in the appeal.” Id. at 2. This

court granted the renewed motion and permitted the attorney to withdraw.

This appeal, then, has only one participating party – ERC Specialists.

But because that party is the appellant, “aggrieved by the order from which

appeal is taken,” this court may adjudicate the matter consistent with

Article III’s case-or-controversy requirement. See Raley v. Hyundai Motor

Co., 642 F.3d 1271, 1274 (10th Cir. 2011) (quoting Thomas v. Metro. Life

Ins. Co., 631 F.3d 1153, 1159 (10th Cir. 2011)). Our review, though, finds

no error in the district court’s judgment. Exercising jurisdiction pursuant

to 28 U.S.C. § 1291, we affirm.

II

To resolve this dispute over personal jurisdiction, three questions

must be addressed. First, there is the threshold question of which facts may

be considered. ERC Specialists argues the district court erred by declining

to consider an attorney’s representation made in its briefing. But the

district court made no such error. After resolving that issue and therefore

determining the relevant universe of facts, we must decide whether those

facts will show minimum contacts sufficient to support an exercise of

personal jurisdiction under a traditional analysis. Below, we hold that due

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process would not be satisfied. So, finally, our analysis will turn to the last

question: whether the purported injury stemming from contractual breach

would itself suffice to establish personal jurisdiction. We hold that it does

not.

A

Before partaking in this foreshadowed analysis, though, we set out

the relevant principles of law. Because this appeal arises from the dismissal

of a complaint for lack of personal jurisdiction, de novo review applies. Old

Republic Ins. Co. v. Cont’l Motors, Inc., 877 F.3d 895, 903 (10th Cir. 2017).

ERC Specialists, as the plaintiff, has the burden under Federal Rule of Civil

Procedure 12(b)(2) to establish jurisdiction. Benton v. Cameco Corp., 375

F.3d 1070, 1074 (10th Cir. 2004). Where, as here, the district court did not

hold an evidentiary hearing, “the plaintiff need only make a prima facie

showing of personal jurisdiction” to be entitled to reversal. Id. (quoting

Soma Med. Int’l v. Standard Chartered Bank, 196 F.3d 1292, 1295 (10th

Cir. 1999)). “The plaintiff may carry this burden ‘by demonstrating, via

affidavit or other written materials, facts that if true would support

jurisdiction over the defendant.’” Emps. Mut. Cas. Co. v. Bartile Roofs, Inc.,

618 F.3d 1153, 1159 (10th Cir. 2010) (quoting TH Agric. & Nutrition, LLC

v. Ace Eur. Grp. Ltd., 488 F.3d 1282, 1286 (10th Cir. 2007)). Once a prima

facie showing has been made, the defendant may still prevail by

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demonstrating that “the presence of some other considerations would

render jurisdiction unreasonable.” Id. (quotation omitted).

B

“Federal courts ordinarily follow state law in determining the bounds

of their jurisdiction over persons.” Daimler AG v. Bauman, 571 U.S. 117,

125 (2014). So, in determining the existence of personal jurisdiction, courts

look to the forum state’s “long-arm statute” authorizing service over non-

resident defendants. See, e.g., id. The exercise of personal jurisdiction must

also be consistent with the requirements of the Constitution. Thus, in

addition to the statutory inquiry, courts generally ask whether the exercise

of jurisdiction is consistent with the Due Process Clause of the Fourteenth

Amendment. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291

(1980).

Because this suit was filed in the District of Utah, the inquiry becomes

simpler. That is because “Utah authorizes its courts to exercise jurisdiction

over ‘nonresident defendants to the fullest extent permitted by the due

process clause of the Fourteenth Amendment to the United States

Constitution.’” XMission, L.C. v. PureHealth Rsch., 105 F.4th 1300, 1307

(10th Cir. 2024) (quoting Utah Code Ann. § 78B-3-201(3)). Ergo, the

intricacies of the Utah long-arm statute have no bearing on the outcome.

Instead, our inquiry “collapses” into only one question: would the exercise

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of personal jurisdiction over Schoolmates violate due process? XMission,

L.C. v. Fluent LLC, 955 F.3d 833, 839 (10th Cir. 2020).

The Supreme Court has recognized two different theories by which

personal jurisdiction may be exercised without a party’s consent and

consistent with due process. Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct.,

592 U.S. 351, 358 (2021). General personal jurisdiction is available in a

forum where a defendant is “essentially at home” and allows for disposition

of “any and all claims” against that defendant. Id. (quoting Goodyear

Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). Specific

personal jurisdiction, on the other hand, applies to defendants “less

intimately connected” with the forum state and may be exercised “only as

to a narrower class of claims.” Id. at 359. Under either theory, defendants

“must have ‘minimum contacts’ with the forum state, such that having to

defend a lawsuit there would not ‘offend traditional notions of fair play and

substantial justice.’” Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514

F.3d 1063, 1070 (10th Cir. 2008) (quoting Int’l Shoe Co. v. Washington, 326

U.S. 310, 316 (1945)). Here, ERC Specialists alleges only one theory, specific

personal jurisdiction.

To determine whether the exercise of specific personal jurisdiction is

appropriate, courts look to see if defendants have “reached out beyond” their

home jurisdiction by undertaking some act to “purposefully avail[]

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[themselves] of the privilege of conducting activities within the forum

[s]tate.” Ford Motor Co., 592 U.S. at 359 (first quoting Walden v. Fiore, 571

U.S. 277, 285 (2014); and then quoting Hanson v. Denckla, 357 U.S. 235,

253 (1958)). If defendants have done so, and the claims at issue “arise out

of or relate to” the defendant’s activities in the forum state, then specific

personal jurisdiction may be exercised. Id. (quoting Bristol-Myers Squibb

Co. v. Superior Court of Cal., 582 U.S. 255, 262 (2017)).

III

Because the personal jurisdiction analysis is dependent on

Schoolmates’ contacts with the forum state, we must determine at the

threshold which facts are appropriate for consideration. On appeal, ERC

Specialists argues that the district court erred by declining to credit a

factual representation made in its opposition brief, that Schoolmates had

executed an IRS form granting power of attorney to ERC Specialists. But

that form was never referenced in the complaint, filed as an attachment to

any briefing, or referenced in ERC Specialists’ supporting affidavit. It was

instead referenced in the opposition to the motion to dismiss, where its

existence was alleged as a “relevant fact[].” Aplt. App. at 63 (capitalization

omitted). The district court declined to credit this representation.

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The district court was right to do so. When reviewing for a prima facie

demonstration that personal jurisdiction may be exercised, courts “resolve

all factual disputes in favor of the plaintiff.” AST Sports Sci., Inc. v. CLF

Distrib. Ltd., 514 F.3d 1054, 1057 (10th Cir. 2008). But there must be a fact

in dispute. And to bring a fact into dispute, a plaintiff must present “either

uncontested allegations in its complaint or evidence in the form of an

affidavit or declaration.” Eighteen Seventy, LP v. Jayson, 32 F.4th 956, 965

(10th Cir. 2022). An attorney’s representation in an unsworn brief does not

fit the bill. And, in any event, the existence of the limited grant of power of

attorney would make no difference to the outcome of this appeal.

Having a view of the relevant facts, the question becomes whether

those facts are sufficient to demonstrate a prima facie case for the existence

of minimum contacts. The test has two requirements. First, “the out-of-state

defendant must have ‘purposefully directed’ its activities at residents of the

forum state.” Shrader v. Biddinger, 633 F.3d 1235, 1239 (10th Cir. 2011)

(quotation omitted). Second, the claims at issue must “arise out of or relate

to those activities.” PureHealth Rsch., 105 F.4th at 1308 (quoting Fluent

LLC, 955 F.3d at 840).

Much of the doctrinal work necessary to apply this standard has

already been done. In Old Republic Insurance Co. v. Continental Motors,

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Inc., this court explained that “[t]he typical purposeful direction analysis

looks to the out-of-state defendant’s ‘continuing relationships and

obligations with citizens of the forum state.’” 877 F.3d at 905 (alteration

adopted) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473

(1985)). Where the dispute arises from the parties’ contract:

A defendant’s relationship with a plaintiff or third party, standing alone, is an insufficient basis for jurisdiction.” Instead, we must evaluate the parties’ “prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing in determining whether the defendant purposefully established minimum contacts within the forum.

Id. (internal citations omitted and alterations adopted) (first quoting

Walden, 571 U.S. at 286; and then quoting Burger King, 471 U.S. at 479).

There are several cases from this court that further elucidate factual

considerations relevant in applying the standard. From those cases, certain

general principles can be gleaned. In Dental Dynamics, LLC v. Jolly Dental

Group, LLC, an Oklahoma broker of dental equipment sued an Arkansas

dental practice. 946 F.3d 1223, 1226–27 (10th Cir. 2020). There, the parties

had engaged in three business transactions over the course of nine years.

Id. at 1230. None of the contracts had been negotiated or executed in person.

Id. And all the contracts – including the one that gave rise to the lawsuit –

involved only “the isolated sale or prospective sale” of a good “without any

long-term or continuing obligations involving” the forum state. Id. This

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court held that the Arkansas dental practice had not purposefully directed

efforts toward Oklahoma. Id. Thus, personal jurisdiction could not be

exercised in an Oklahoma court over the dental practice.

Soma Medical International v. Standard Chartered Bank also helps

to inform the present dispute. 196 F.3d 1292. There, a Utah resident opened

an account with a bank in Hong Kong. Id. at 1294. The bank mailed to Utah

a signature card, two more letters requiring the Utahn’s signature, and

fourteen other written communications. Id. at 1298. The bank also created

and maintained internal records and documents relevant to the Utah

resident. Id. Nonetheless, because there was no demonstration that the

bank “solicited” the client’s business and there were only a “limited number

of . . . communications” with the Utah resident, not numbering in the

“hundreds,” there were insufficient indicia of purposeful availment. Id. at

1299 (quotation omitted). This court held that personal jurisdiction could

not be exercised in Utah over the bank.

On the other hand, in Pro Axess, Inc. v. Orlux Distribution, Inc., this

court held that specific personal jurisdiction could be exercised in Utah over

a French company. 428 F.3d 1270, 1274 (10th Cir. 2005). There, the plaintiff

was a Utah corporation that the French company had solicited for its

business relationships with manufacturers in Asia. Id. at 1277. The parties

signed only a single contract, but its fulfillment “required a continuing

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relationship based on the provision of services.” Id. In particular, the

contract required the Utah company to: choose a manufacturer, arrange for

handmade models to be made into prototypes, arrange for the details of the

product’s manufacture, arrange for inspection of the final product, invoice

and coordinate the manufacturing process, and arrange for shipping of the

product from Asia to France. Id. Throughout this process, the French

company “exchanged numerous faxes, letters, and phone calls with [the

Utah company] about the order itself and the potential for modifications to

the order.” Id. at 1278. Because those contacts occurred while the parties

“were building a business relationship, maintaining that relationship, and

attempting to salvage that relationship,” we deemed them to have a

“quality” worthy of weight in the due process analysis. Id. at 1278 n.5.

Here, there is some degree of factual dispute as to how the parties

first encountered one another. To resolve this issue, a court should look to

the operative complaint as well as any affidavits filed. Eighteen Seventy,

LP, 32 F.4th at 965. Both parties submitted factual affidavits in the district

court. See Aplt. App. at 95 (ERC Specialists affidavit); id. at 114

(Schoolmates affidavit). Where there are inconsistencies in these

documents, a court should “resolve all factual disputes in favor of the

plaintiff.” AST Sports Sci., 514 F.3d at 1057.

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From this universe of documents and construing the facts in favor of

ERC Specialists, we accept certain factual findings as true. The relevant

contractual documents were not signed in person in Utah; indeed, no

Schoolmates employee ever entered Utah. ERC Specialists did not initiate

the business relationship. And Schoolmates contacted ERC Specialists

“directly” through its website. Additionally, ERC Specialists alleges that it

“received numerous documents from Schoolmates” for the purpose of filing

for the tax credit. We will also take this factual allegation as true. However,

to the extent that ERC Specialists would have us grant the conclusory term

“numerous” legal significance, we will not go so far.

ERC Specialists also alleges that the agreement at issue here

pertained to a tax credit that is no longer available. And the documents

memorializing the parties’ agreement – which are incorporated into the

complaint by reference – show that the parties signed a form contract that

contains Schoolmates’ name only one time. See Aplt. App. at 76 (defining

Schoolmates as “client” or “the client”). The language of the contract thus

offers no indication that the parties engaged in significant back-and-forth

negotiation to commence their business relationship. And although the

contract has a choice of law provision selecting Utah law, it does not have a

forum selection clause. It also provides that the parties would ask the IRS

to mail checks to an escrow agent in Utah. The tax credit, according to the

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paperwork “may be represented in 1–6 individual checks from the IRS.” Id.

at 90.

Neither the complaint nor ERC Specialists’ affidavit allege a specific

number of contacts between the parties. To the extent the affidavit bears

on the quality of contacts, it indicates that they were not of the type

discussed in Pro Axess, where the parties built, maintained, and attempted

to salvage a business relationship that involved the multistep process of

prototyping and manufacturing a product for commercial market across

international borders. See 428 F.3d at 1277–78 & n.5. Instead, Schoolmates

contacted ERC Specialists through its website, executed a form contract on

ERC Specialists’ letterhead, and provided documents to ERC Specialists.

These are the type of limited contacts that appear in Soma Medical, where

personal jurisdiction could not be exercised. And the parties could not have

contemplated future dealings: the only service available from ERC

Specialists was assistance with a time-limited tax credit. The contract here

encompassed the entirety of the services that might be available. Thus, the

parties could not have contemplated “any long-term or continuing

obligations involving” the forum state. Dental Dynamics, 946 F.3d at 1230.

So, although the contact via ERC Specialists’ website provides “some

evidence suggesting purposeful availment,” Pro Axess, 428 F.3d at 1277

(quotation omitted), and the Utah choice of law provision is at least

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“relevant in assessing the parties’ relationship and expectations,” Anzures

v. Flagship Rest. Grp., 819 F.3d 1277, 1282 (10th Cir. 2016) (quoting Far W.

Cap., Inc. v. Towne, 46 F.3d 1071, 1080 n.7 (10th Cir. 1995)), these facts are

not sufficient on their own. Rather, the transaction was “a discrete

occurrence.” Dental Dynamics, 946 F.3d at 1230. To the extent that the

relationship with a third-party escrow company is relevant, we give it little

weight. The contract documents provide that the third-party should receive

between one and six checks intended for Schoolmates. The pleadings and

affidavits do not indicate that any of the checks were received by the escrow

agent or that any fee was ultimately paid to ERC Specialists. Even if the

checks had been sent to the escrow company, as anticipated, these would at

most add a “limited number of . . . communications,” not numbering in the

“hundreds,” as might be helpful for ERC Specialists’ jurisdictional case.

Soma Med., 196 F.3d at 1299 (quotation omitted).

This case, then, is far more similar to Soma Medical and Dental

Dynamics than Pro Axess. There is little to show that Schoolmates

“purposefully directed” its activities at Utah residents such that ERC

Specialists’ claims might “arise out of or relate to” those activities.

PureHealth Rsch., 105 F.4th at 1308 (quotation omitted). ERC Specialists

has not carried its burden to demonstrate a prima facie case that minimum

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contacts exist to support the District of Utah’s exercise of personal

jurisdiction over Schoolmates. The district court did not err in so holding.

C

ERC Specialists, though, argues in the alternative that it can prove

personal jurisdiction because Schoolmates undertook activities that went

on to cause harmful effects in Utah. And it is true that we have applied in

some cases such a test, predicated on Calder v. Jones, 465 U.S. 783, 789

(1984). We have interpreted this precedent to allow the exercise of personal

jurisdiction where there is: “(a) an intentional action . . ., that was (b)

expressly aimed at the forum state . . ., with (c) knowledge that the brunt

of the injury would be felt in the forum state[.]” Dudnikov, 514 F.3d 1072.

More recently, we have noted that when “courts have applied

derivatives of the Calder effects test,” they usually do so in cases that

“involve claims like defamation and trademark infringement, which are

generally considered intentional torts.” Old Republic Ins. Co., 877 F.3d at

908. Indeed, the Supreme Court “suggested” that the connection to the

forum state was “‘largely a function’” of the libel tort at issue in Calder,

which involved publication of the offending material in the forum state. Old

Republic Ins. Co., 877 F.3d at 908 (quoting Walden, 571 U.S. at 287). For

this reason, “the defendants’ intentional tort [in Calder] actually occurred

in California.” Id. (internal citation omitted). So, although this test may be

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applicable in the “internet context,” the existence of minimum contacts is

still predicated on “indications that a defendant deliberately directed its

message at an audience in the forum state and intended harm to the

plaintiff occurring primarily or particularly in the forum state.” Id. (quoting

Shrader, 633 F.3d at 1241). For ERC Specialists to prevail, this rule would

need to be expanded to apply in the breach of contract context.

But it is hard to see how such an expansion could be squared with the

fundamental principle that “the plaintiff cannot be the only link between

the defendant and the forum.” Walden, 571 U.S. at 285. And, “[r]egardless

of where a plaintiff lives or works, an injury is jurisdictionally relevant only

insofar as it shows that the defendant has formed a contact with the forum

[s]tate.” Id. at 290. For a contractual dispute, then, it is unclear what work

the effects test could do here. It seems obvious that any breach of contract

will necessarily result in effects that occur in the counterparty’s home

jurisdiction. So, in a dispute arising from contract, the mere location of

injury will not improve the plaintiff’s showing on the jurisdictionally

relevant issue: whether there is something “more than simply harm

suffered by a plaintiff who resides in the forum state.” Old Republic Ins.

Co., 877 F.3d at 917. Application of the effects test is not called for by our

precedent and would not change the analysis here.

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IV

Because we do not find the existence of minimum contacts, there is no

need to determine whether the exercise of personal jurisdiction would

offend traditional notions of fair play and substantial justice. The judgment

of the district court is AFFIRMED.

Entered for the Court

Richard E.N. Federico Circuit Judge