303 F.3d 1104 (9th Cir. 2002), 01-55002, Dole Food Co., Inc. v. Watts

Docket Nº:01-55002.
Citation:303 F.3d 1104
Party Name:DOLE FOOD COMPANY, INC., a Hawaiian corporation, Plaintiff-Appellant, v. Malcolm WATTS; Carl Boenneken, Defendants-Appellees, and Helag Warehousing, a corporation organized under the laws of the Netherlands; Helag Storage & Distribution B.V. a corporation organized under the law of the Netherlands; Helvetia Lagerhaus Gesellschaft AG, Inc., a corpor
Case Date:September 10, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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303 F.3d 1104 (9th Cir. 2002)

DOLE FOOD COMPANY, INC., a Hawaiian corporation, Plaintiff-Appellant,

v.

Malcolm WATTS; Carl Boenneken, Defendants-Appellees,

and

Helag Warehousing, a corporation organized under the laws of the Netherlands; Helag Storage & Distribution B.V. a corporation organized under the law of the Netherlands; Helvetia Lagerhaus Gesellschaft AG, Inc., a corporation organized under the laws of the British Virgin Islands; Storerite Ltd., a corporation organized under the laws of the United Kingdom; Eurostore N.V. a corporation organized under the laws of the Dutch Antilles; Delta Property Financing, Ltd,, a company organized under the laws of the United Kingdom, Defendants.

No. 01-55002.

United States Court of Appeals, Ninth Circuit

September 10, 2002

Argued and Submitted March 4, 2002.

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Robert H. Klonoff, Jones, Day, Reavis & Pogue, Washington, DC, for the appellant.

Simon J. Frankel, Howard, Rice, Nemerovski, Canady, Falk & Rabkin, San Francisco, California, for the appellees.

Appeal from the United States District Court for the Central District of California; A. Howard Matz, District Judge, Presiding. D.C. No. CV-00-05307-AHM.

Before: WARDLAW, W. FLETCHER, Circuit Judges, and FOGEL,[*] District Judge.

WILLIAM A. FLETCHER, Circuit Judge

Dole Food Company ("Dole" or "Dole U.S.") appeals the district court's dismissal under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction in California of its suit against Malcolm Watts and Carl Boenneken, citizens and residents of European countries. Dole alleges that Watts and Boenneken fraudulently induced Dole, headquartered in California, to lease warehouse space in The

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Netherlands on unfavorable terms without disclosing that they had ownership interests in the property. We reverse the district court's dismissal for lack of personal jurisdiction, decline to uphold the dismissal on the alternative ground of forum non conveniens, and remand to the district court for further proceedings.

I. Background

We review de novo a district court's determination that it does not have personal jurisdiction over a defendant. See Myers v. Bennett Law Offices, 238 F.3d 1068, 1071 (9th Cir. 2001). Where defendants move to dismiss a complaint for lack of personal jurisdiction, plaintiffs bear the burden of demonstrating that jurisdiction is appropriate. See Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990). Where, as here, the motion is based on written materials rather than an evidentiary hearing, "the plaintiff need only make a prima facie showing of jurisdictional facts." Id. In such cases, "we only inquire into whether [the plaintiff]'s pleadings and affidavits make a prima facie showing of personal jurisdiction." Caruth v. Int'l Psychoanalytical Ass'n, 59 F.3d 126, 128 (9th Cir. 1995). Although the plaintiff cannot "simply rest on the bare allegations of its complaint," Amba Marketing Systems, Inc. v. Jobar Int'l, Inc., 551 F.2d 784, 787 (9th Cir. 1977), uncontroverted allegations in the complaint must be taken as true. See AT & T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996). Conflicts between parties over statements contained in affidavits must be resolved in the plaintiffs favor. See id.; see also Bancroft' & Masters, Inc. v. Augusta Nat'l, Inc., 223 F.3d 1082, 1087 (9th Cir. 2000) ("Because the prima facie jurisdictional analysis requires us to accept the plaintiffs allegations as true, we must adopt [plaintiff/ version of events for purposes of this appeal.").

Plaintiff-appellant Dole U.S. is incorporated under the laws of Hawaii and has its headquarters and principal place of business in California.

Defendant-appellee Watts is a citizen of the United Kingdom and lives in France. According to Dole's complaint, Watts was an employee of Dole Europe, which is based and registered in Belgium, from 1971 to 1975, and was an employee of Dole Packaged Foods ("DPF"), a division of Dole U.S., from 1975 until his retirement in 1998. At the time of all the events that form the basis for this suit, Watts was Vice President and Managing Director of European Sales and Marketing for DPF. Watts' duties included management of Dole Holland B.V., a Dutch company, from its formation in 1989 until his retirement. Douglas Jocelyn, who worked at the California headquarters of Dole U.S. as Vice-President of International Sales, had direct supervisory responsibilities over Watts.

In his declarations, Watts describes his positions and duties slightly differently. He states that he was employed by Dole Europe from 1971 until his retirement, and that he was "Director of the Belgian and Dutch Dole companies" from an unspecified date until his retirement. Watts avers that he "reported to superiors at Dole in Paris, France" after 1994, but he does not deny that he was supervised by Jocelyn. Indeed, he states that at a time relevant to the events in this suit, Jocelyn gave him a "good" "performance assessment." It is uncontested that from 1971 to 1998, Watts attended management meetings in California once or twice each year, and that Watts currently has at least one California bank account, into which Dole U.S. deposits his pension payments.

Defendant-appellee Boenneken is a German citizen who currently lives in Spain. Dole alleges that Boenneken was employed by DPF as its regional in-house

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counsel from an unspecified date until 1987, and that after 1987 he continued to perform legal services as outside counsel for DPF, Dole Europe B.V., and Dole U.S. Boenneken states in a declaration that he was in-house counsel for Dole Europe from 1978 until 1987 or 1988, and that while so employed he visited Dole's California headquarters "two or three times" on matters unrelated to the events at issue in this suit. After that time, he "occasionally performed discrete legal jobs for Dole" until the end of 1992. Boenneken studied at New York University Law School from 1968 to 1971 and obtained a law degree from that institution.

Dole alleges that Watts and Boenneken engaged in an elaborate scheme to defraud Dole U.S. The centerpiece of the scheme was a plan, proposed by Watts and Boenneken, to change Dole's European distribution approach from a "cost and freight" system to a "landed duty paid" ("LDP") system. Dole alleges that, in February 1989, Boenneken attended a presentation on the feasibility of altering Dole's old cost-and-freight system. Dole alleges that Boenneken then outlined in a memorandum to Watts the advantages of the new LDP approach. According to a declaration by Jocelyn, Watts approached Jocelyn with the idea of switching to the LDP system. Watts acknowledges in his declaration that Jocelyn was responsible for approving the plan.

Dole alleges that Watts and Boenneken communicated frequently with management in Dole's California's offices via telephone, fax, and mail about the design and implementation of the LDP system. Jocelyn states in his declaration that he had numerous communications with Watts regarding the switch, by telephone and fax while Jocelyn was in California, and in face-to-face meetings during Jocelyn's quarterly visits to the Dole Europe offices. Dole alleges that Watts also traveled to California on multiple occasions and, while in California, encouraged Dole managers to change to the LDP system, advising them that they could save up to $2 million annually. According to Dole, it relied on the information and advice presented by Watts and Boenneken in deciding to change to the LDP system.

Dole alleges that after it approved the change, Watts and Boenneken secretly joined with Aart van der Meer to create and own a new entity, Spedtrans Warehousing, to lease warehouse space to Dole at exorbitant rates. Dole alleges that Watts, Boenneken, and van der Meer signed a "Confidentiality Agreement" among themselves to ensure that their arrangement would not be disclosed to others.

Watts states in his declaration that van der Meer offered him an interest in the new warehousing entity, but that he refused for ethical reasons. According to Watts, van der Meer persisted, telling Watts that Boenneken had already drafted the Confidentiality Agreement; Watts then threatened to terminate Dole's dealings with van der Meer, but continued with the lease transactions because Jocelyn was pressuring him to complete the deal. Watts states that he never visited California in connection with the negotiation of these leases, but he does not deny communicating with Jocelyn about the leases by telephone and fax while Jocelyn was in California, and does not deny discussing the leases in California while visiting for other purposes.

Boenneken does not acknowledge what Dole alleges to be his role in initiating the proposed change. Rather, he states in his declaration that he was "informed and believed that sometime during 1988 Dole decided to make changes to its distribution system in Europe, including leasing additional warehouse space in Rotterdam.

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Dole was negotiating with one Aart van der Meer concerning obtaining such additional space for Dole." Boenneken states that van der Meer retained him for "legal advice" with respect to negotiations with Dole to lease warehouse space, and that he engaged in "arms length" negotiations with Dole. Boenneken claims that he "do[es] not recall" having any communications with Dole employees in the United States concerning the leases at issue, but, in any event, "any communication I might have had would have been on behalf of Mr. van der Meer." Boenneken states that van der Meer told him that Watts agreed to the proposed partnership, and, on that basis, Boenneken drafted and signed the...

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