Myers v. The Bennett Law Offices, s. 99-15873
Citation | 238 F.3d 1068 |
Decision Date | 12 December 2000 |
Docket Number | 99-15902,Nos. 99-15873,s. 99-15873 |
Parties | (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 |
Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] 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.
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.
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).
"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.
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) (); Brainerd v. Governors of the Univ., 873 F.2d 1257, 1259 (9th Cir. 1989) ( ). 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.
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 (); E.I. duPont de Nemours & Co. v. Rhodia Fiber & Resin Intermediates, S.A.S., 197 F.R.D. 112, 122 (D. Del. 2000) ( ). 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) ( ). Therefore, for the purpose of personal jurisdiction analysis, we impute the acts of Barber to Bennett.
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 & 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 Bennett's conduct were felt in Nevada. The district court refused to place the locus of the injury in Nevada because it found that the "event complained of does not exist in Nevada. " Instead, the district court found that the injury occurred wherever one would access Plaintiffs' credit reports. This conclusion is erroneous.
The FCRA is intended to safeguard against the improper reporting of information on a credit report (either by the credit reporting agency or by the furnisher of credit information) and against the improper disclosure of a credit report. See 15 U.S.C. 1681(b) (...
To continue reading
Request your trial-
United Tactical Sys. LLC v. Real Action Paintball, Inc.
...Compl. ¶¶ 70, 73. Real Action felt this harm in the Northern District of California, where it is located. See Myers v. Bennett Law Offices, 238 F.3d 1068, 1076 (9th Cir.2001) ("[I]n a tort action, the locus of the injury [is] a relevant factor."). This general argument is the basis for Real......
-
Thomas v. FTS USA, LLC
...information furnished with malice or willful intent to injure [the] consumer." 15 U.S.C. § 1681h(e) ; see alsoMyers v. Bennett Law Offices, 238 F.3d 1068, 1074 (9th Cir.2001) ("When a consumer brings an action for violation of the disclosure provisions of the FCRA, the Act's purpose of prot......
-
Ketayi v. Health Enrollment Grp., Corp.
...‘the Ninth Circuit follows the ‘but for’ test.’ " Menken v. Emm , 503 F.3d 1050, 1058 (9th Cir. 2007) (quoting Myers v. Bennett Law Offices , 238 F.3d 1068, 1075 (9th Cir. 2001) ). "[I]f the plaintiff would not have suffered loss ‘but for’ the defendant's activities, [the ‘arising out of’] ......
-
Purdue Research v. Sanofi-Synthelabo, S.A.
...holding an evidentiary hearing, as in this case, the `prima facie' standard governs its determination."); Myers v. Bennett Law Offices, 238 F.3d 1068, 1071 (9th Cir.2001) ("When personal jurisdiction is challenged by motion as an initial response, and the [district] court determines that it......
-
CORPORATE CRIMINAL LIABILITY
...principal’s manifestations.” (quoting RESTATEMENT (THIRD) OF AGENCY § 2.03 (AM. L. INST. 2006))); see also Meyers v. Bennett L. Offs., 238 F.3d 1068, 1073 n.2 (9th Cir. 2001) (“[A] party claiming apparent authority of an agent must prove . . . that the acting party subjectively believed tha......
-
Corporate Criminal Liability
...principal’s manifestations.” (quoting RESTATEMENT (THIRD) OF AGENCY § 2.03 (AM. L. INST. 2006))); see also Meyers v. Bennett L. Offs., 238 F.3d 1068, 1073 n.2 (9th Cir. 2001) (“[A] party claiming apparent authority of an agent must prove . . . that the acting party subjectively believed tha......
-
Corporate criminal liability.
...actual or apparent.") (quoting United States v. Inv. Enters. Inc., 10 F.3d 263, 266 (5th Cir. 1998)); Meyers v. Bennett Law Offices, 238 F.3d 1068, 1073 (9th Cir. 2001) (rejecting the argument that employee acted outside scope of authority because employee had at least apparent authority to......
-
Corporate criminal liability.
...to the corporation when the employee acts within the scope of his or her employment authority). (19.) See Meyers v. Bennett Law Offices, 238 F.3d 1068, 1073 (9th Cir. 2001) (rejecting the argument that employee acted outside scope of authority because employee had at least apparent authorit......