238 F.3d 1068 (9th Cir. 2001), 99-15873, Myers v. The Bennett Law Offices

Docket Nº:99-15873, 99-15902
Citation:238 F.3d 1068
Party Name:SAMUEL MYERS, Plaintiff-Appellant, v. THE BENNETT LAW OFFICES, Defendant-Appellee, and DOUG MCCALLON, Defendant. TIMOTHY MYERS, Plaintiff-Appellant, v. THE BENNETT LAW OFFICES, Defendant-Appellee.
Case Date:February 05, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1068

238 F.3d 1068 (9th Cir. 2001)

SAMUEL MYERS, Plaintiff-Appellant,

v.

THE BENNETT LAW OFFICES, Defendant-Appellee,

and

DOUG MCCALLON, Defendant.

TIMOTHY MYERS, Plaintiff-Appellant,

v.

THE BENNETT LAW OFFICES, Defendant-Appellee.

Nos. 99-15873, 99-15902

United States Court of Appeals, Ninth Circuit

February 5, 2001

Submitted December 12,[2000*]

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Jeffery I. Pitegoff, Las Vegas, Nevada, for plaintiff-appellant Samuel Myers.

Mitchell D. Gliner, Las Vegas, Nevada, for plaintiff-appellant Timothy Myers.

Daniel F. Polsenberg, Las Vegas, Nevada, for the defendant appellee.

Appeal from the United States District Court for the District of Nevada David Warner Hagen and Philip M. Pro, District Judges, Presiding. D.C. No.CV 98-01178 DWH D.C. No.CV 98-01179 PMP

Before: David R. Thompson, Diarmuid F. O'Scannlain, and A. Wallace Tashima, Circuit Judges.

TASHIMA, Circuit Judge:

I.

In these consolidated appeals, we are asked to decide whether the district court erred when it dismissed these actions for lack of personal jurisdiction and improper venue. We review the district court's dismissals de novo. See Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316, 1319--20 (9th Cir. 1998) (personal jurisdiction); Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 504 (9th Cir. 2000) (venue). The district court had federal question jurisdiction pursuant to 15 U.S.C. § 1681p and 28 U.S.C.S 1331. We have jurisdiction over the district court's final orders pursuant to 28 U.S.C. § 1291, and we reverse.

II.

In a prior state court action, Jim Barber ("Barber"), who was a paralegal with the Bennett Law Offices ("Bennett"), sued Automated Recovery System ("ARS") (a company owned and operated by both Timothy and Samuel Myers) for unlawful debt collection practices. During the course of that lawsuit, Barber contacted National Data Research ("NDR"), an investigative information service provider, and allegedly ordered a credit report on ARS using one of Bennett's order forms and on the Myerses through an oral communication with Terry Sweet, NDR's president. The Myerses claimed that such search was for an improper purpose and brought these two actions against Bennett alleging violation of the Fair Credit Reporting Act ("FCRA"). Both Plaintiffs, Samuel Myers and Timothy Myers, allege that they are residents of Nevada. Bennett is a Utah corporation with its principal place of business in that state.

Based on its status as a Utah resident and its alleged lack of contacts with Nevada, Bennett moved to dismiss each of these actions for lack of personal jurisdiction and improper venue. Adopting identical reports and recommendations of a magistrate judge in each case, the district court dismissed both cases. Plaintiffs appeal.

III.

A.

When personal jurisdiction is challenged by motion as an initial response, and "the [district] court determines that it will receive only affidavits or affidavits plus discovery materials, these very limitations dictate that a plaintiff must make only a prima facie showing of jurisdictional facts through the submitted materials in order to avoid a defendant's motion to dismiss." Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977) (footnote omitted). Thus, in order to defeat Bennett's motions to dismiss for lack of personal jurisdiction, at this stage, Plaintiffs only needed to make, through their pleadings and affidavits, a prima facie showing of the jurisdictional facts. See Farmers Ins. Exch. v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990).

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1.

"When subject matter jurisdiction is premised on a federal question, a court may exercise specific jurisdiction over a defendant if a rule or statute authorizes it to do so and the exercise of such jurisdiction comports with the constitutional requirement of due process." ATT Co. v. Compagnie Bruxelles Lambert, 94 F.3d 586, 589 (9th Cir. 1996).

Federal Rule of Civil Procedure 4(k)(1)(A) provides that "[s]ervice of a summons . . . is effective to establish jurisdiction over the person of a defendant [ ] who could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located. " Fed. R. Civ. P. 4(k)(1)(A). Therefore, in order to determine whether jurisdiction is authorized, we look to Nevada's long-arm statute. The Nevada Supreme Court has interpreted Nevada's longarm statute to reach the limits of federal constitutional due process. See Judas Priest v. Second Judicial Dist. Court, 760 P.2d 137, 138 (Nev. 1988). Accordingly, the only relevant analysis is whether Bennett has certain minimum contacts with the forum state so as to satisfy specific jurisdiction.1

We use a three-part test to evaluate the nature and quality of Bennett's contacts for purposes of specific jurisdiction: First, some action must be taken whereby Bennett purposefully availed itself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of the forum's law. See Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990). Second, the claim must arise out of Bennett's forum-related activities. See id. Third, the exercise of jurisdiction must be reasonable. See id.

2.

a.

The Supreme Court has established that the purposeful availment prong of the personal jurisdiction analysis can be met if a defendant's "intentional conduct [in the foreign state was] calculated to cause injury to [the plaintiff] in [the forum state]." Calder v. Jones, 465 U.S. 783, 791 (1984) ("Jurisdiction over petitioners is therefore proper in California based on the `effects' of their Florida conduct in California."); Brainerd v. Governors of the Univ., 873 F.2d 1257, 1259 (9th Cir. 1989) (finding purposeful availment when the defendant "intentionally directed his activities into the forum."). Our most recent discussion of the Calder "effects test" is found in Bancroft & Masters, Inc. v. Augusta Nat'l Inc., 223 F.3d 1082 (9th Cir. 2000). In that case, we concluded that:

In Calder, the Supreme Court held that a foreign act that is both aimed at and has effect in the forum state satisfies the purposeful availment prong of the specific jurisdiction analysis. . . . Subsequent cases have struggled somewhat with Calder's import, recognizing that the case cannot stand for the broad proposition that a foreign act with foreseeable effects in the forum state always gives rise to specific jurisdiction. We have said that there must be "something more," but have not spelled out what the something more must be.

We now conclude that "something more" is what the Supreme Court described as "express aiming " at the forum state. Express aiming is a concept that in the jurisdictional context hardly defines itself. From the available cases, we deduce that the requirement is satisfied when the defendant is alleged to have engaged in wrongful conduct targeted at a plaintiff whom the defendant knows to be a resident of the forum state.

Id. at 1087 (citations omitted). Accordingly, we focus our analysis on whether Plaintiffs have made a prima facie showing that Bennett knew that its allegedly wrongful acts were aimed at Nevada residents.

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i.

As a preliminary matter, Bennett argues that we may not consider Barber's acts in our analysis because Barber allegedly acted outside the scope of his employment. We reject that argument for two reasons. First, Plaintiffs have made a prima facie showing that Barber had at least apparent authority to request the credit reports and, as such, should be considered the agent of Bennett regardless of whether authority was actually given.2 See, e.g., Sher, 911 F.2d at 1362 ("For purposes of personal jurisdiction, the actions of an agent are attributable to the principal."); E.I. duPont de Nemours & Co. v. Rhodia Fiber & Resin Intermediates, S.A.S., 197 F.R.D. 112, 122 (D. Del. 2000) (finding that evidence that an agent had apparent authority to act on the principal's behalf was sufficient to exercise personal jurisdiction over the principal). Second, even if actual or apparent authority is lacking, Plaintiffs have also made a prima facie showing that Bennett ratified the acts of its agent.3 See Wessels, Arnold & Henderson v. National Med. Waste, Inc., 65 F.3d 1427, 1433 (8th Cir. 1995) (finding that acts of agent outside the scope of his employment may be imputed to principal for purpose of personal jurisdiction if shown to have been ratified after the fact). Therefore, for the purpose of personal jurisdiction analysis, we impute the acts of Barber to Bennett.

ii.

Looking at the totality of Bennett's conduct, Plaintiffs have made a prima facie showing that Defendant's conduct was "expressly aimed" at the forum state. See Calder, 465 U.S. at 789. First, Bennett acted intentionally when it sent its request for a credit inquiry to NDR. Also, the request was "expressly aimed at [Nevada] because it individually targeted" the Myerses who Bennett knew were Nevada residents.4 Bancroft &

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Masters, Inc., 223 F.3d at 1088. Therefore, it is indisputable that Bennett intentionally aimed its conduct at Nevada. It is also apparent that the effects of...

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