Menken v. Emm

• Decision Date: 19 September 2007
• Docket Number: No. 05-16467.,05-16467.
• Parties: David MENKEN, Plaintiff-Appellant, v. Gerry F. EMM and Maxine C. Emm; Coldwell Banker Itildo, Inc.; Marsha L. Tomerlin and John Doe Tomerlin; David J. Morandi and Jane Doe Morandi; Scarpello, Huss & Oshinski, Ltd., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

503 F.3d 1050

David MENKEN, Plaintiff-Appellant, v. Gerry F. EMM and Maxine C. Emm; Coldwell Banker Itildo, Inc.; Marsha L. Tomerlin and John Doe Tomerlin; David J. Morandi and Jane Doe Morandi; Scarpello, Huss & Oshinski, Ltd., Defendants-Appellees.

No. 05-16467.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 12, 2007.

Filed September 19, 2007.

John Derrick, Law Office of John Derrick, Santa Barbara, CA, for the plaintiff-appellant.

Vincent M. Creta, Hammerman & Hultgren, Phoenix, AZ, for the defendants-appellees.

Appeal from the United States District Court for the District of Arizona; Mary H. Murguia, District Judge, Presiding. D.C. No. CV-04-0598-PHX-MHM.

Before: JAY S. BYBEE and MILAN D. SMITH, JR., Circuit Judges, and J. MICHAEL SEABRIGHT,^* District Judge.

Opinion by Judge SEABRIGHT; Partial Concurrence and Partial Dissent by Judge BYBEE.

SEABRIGHT, District Judge.

On December 12, 2003, Plaintiff-Appellant David Menken ("Menken") filed a Complaint in Arizona state court alleging negligence, interference with contractual relations, civil extortion, and a violation of Arizona Revised Statutes ("A.R.S.") § 33-420. Defendant-Appellee Tomerlin removed the case (based on diversity of citizenship) to the United States District Court for the District of Arizona on March 24, 2004.¹ The district court dismissed for lack of personal jurisdiction.

Because we conclude that Tomerlin had sufficient contacts with the State of Arizona to warrant the exercise of personal jurisdiction, we reverse the judgment of the district court.

I.

In his Complaint, Menken alleges that Tomerlin obtained a judgment against Menken in a case arising out of the United States District Court for the District of Nevada (CV-N-96-00142). In 1998, Tomerlin (along with other judgment creditors) obtained a judgment against Menken for attorneys' fees and costs totaling $29,883.63. Menken never satisfied the judgment. Between 1998 and 2003, Tomerlin incurred expenses and legal fees attempting to locate Menken and his assets. On May 1, 2003, the judgment creditors recorded the Nevada judgment against Menken in Maricopa County, Arizona and established a lien on Menken's home there.

Menken alleges that Tomerlin then attempted to use the lien as leverage to extract more money from Menken than was due under the Nevada judgment. On August 22, 2003, Tomerlin's Nevada attorney wrote to Menken's agent in Arizona with a payoff demand for the judgment ($29,883.63) and post-judgment interest ($13,361.05), as well as costs and legal fees accrued attempting to locate Menken ($36,740.52), for a total demand of $79,985.20. Menken's attorney responded to the payoff demand by letter dated September 2, 2003, claiming the amount was too high and that Menken did not have to pay the post-judgment costs and legal fees. Tomerlin then rejected Menken's proposal to pay the judgment and interest, but not the post-judgment costs and legal fees, in a September 15, 2003 letter. Menken's counsel wrote to Tomerlin's attorney on October 23, 2003 advising that Menken had a pending offer from a buyer to purchase his home in Maricopa County, but could not complete the sale while Tomerlin's lien was in place. Menken's counsel wrote again on November 11, 2003, requesting that Tomerlin release the judgment lien. The lien was not released and, according to Menken, the sale of his home fell through.

Menken filed a Complaint on December 12, 2003 in Arizona state court, later removed to the United States District Court for the District of Arizona, alleging negligence, interference with contractual relations, civil extortion, and a violation of A.R.S. § 33-420.² On January 27, 2005 the district court granted Tomerlin's motion to dismiss for lack of personal jurisdiction.

Following the issuance of the January 27, 2005 Order, no separate entry of judgment was filed. Instead, on February 11, 2005, Menken filed a "Motion to Retain In Rem Jurisdiction Over Count Four Relating to A.R.S. § 33-420." At the June 24, 2005 hearing on the motion, Menken orally moved to amend the Complaint. On June 29, 2005, the district court entered an order denying Menken's motion to retain in rem jurisdiction and denying his motion to amend the Complaint. A separate document entering final judgment was filed on June 29, 2005. Menken filed his notice of appeal on July 22, 2005.

On appeal, Menken argues that the district court erred in finding that it did not have personal jurisdiction over Tomerlin; denying his motion to retain in rem jurisdiction; and denying his motion to amend the Complaint. Tomerlin challenges the timeliness of Menken's notice of appeal.

II.

We first address Tomerlin's argument that Menken's appeal is untimely. A notice of appeal "must be filed with the district clerk within 30 days after the judgment or order appealed from is entered." Fed. R.App. P. 4(a)(1)(A). A judgment or order is entered as follows:

(i) if Federal Rule of Civil Procedure 58(a)(1) does not require a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a); or

(ii) if Federal Rule of Civil Procedure 58(a)(1) requires a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a) and when the earlier of these events occurs:

• the judgment or order is set forth on a separate document, or

• 150 days have run from entry of the judgment or order in the civil docket under Federal Rule of Civil Procedure 79(a).

Fed. R.App. P. 4(a)(7). Federal Rule of Civil Procedure 58(a)(1) requires the January 27, 2005 Order to be set forth in a separate document. See Fed.R.Civ.P. 58(a)(1) ("Every judgment and amended judgment must be set forth on a separate document," except for orders disposing of motions which are not applicable here). Therefore, the 30-day appeals window to file a notice of appeal began to run when the judgment or order was entered in the civil docket under Federal Rule of Civil Procedure 79(a)³ and when the earlier of these two events occurred: (1) the judgment or order was set forth on a separate document, or (2) 150 days had run from entry of the judgment or order in the civil docket.

No separate document was entered following the January 27, 2005 Order. The parties agree that at the time the judgment was entered, more than 150 days had run from entry of the January 27, 2005 Order; that is, 153 days ran from the date of the January 27, 2005 Order and the June 29, 2005 entry of judgment.

The parties dispute the window of time for filing a notice of appeal with respect to a judgment entered by operation of Federal Rule of Appellate Procedure 4(a)(7), when more than 150 days have run from entry of the judgment or order in the civil docket. Tomerlin argues that if more than 150 days have passed from the entry of the order, the time to appeal that order has expired. Menken correctly asserts that under Federal Rule of Appellate Procedure 4(a)(7)'s plain language, judgment was entered after 150 days, which then started the Federal Rule of Appellate Procedure 4(a)(1)(A) 30-day appeals period. In other words, Menken had 180 days (150 days plus 30 days) from entry of the order on January 27, 2005 in which to appeal.

Menken filed his notice of appeal on July 22, 2005, which is 176 days from the entry of the January 27, 2005 Order. Menken's notice of appeal is therefore timely.

III.

A. Standard of Review

We review the district court's decision to dismiss for lack of personal jurisdiction de novo. See Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir.2006). When a defendant moves to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating that the court has jurisdiction over the defendant. See Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1128-29 (9th Cir.2003). However, this showing requires that the plaintiff "make only a prima facie showing of jurisdictional facts to withstand the motion to dismiss." Doe v. Unocal Corp., 248 F.3d 915, 922 (9th Cir.2001) (internal citations omitted). Although the plaintiff cannot "simply rest on the bare allegations of its complaint," Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004) (quoting Amba Mktg. Sys., Inc. v. Jobar Int'l, Inc., 551 F.2d 784, 787 (9th Cir.1977)), uncontroverted allegations in the complaint must be taken as true. Id. (citing AT & T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir.1996)). The court resolves all disputed facts in favor of the plaintiff. Pebble Beach Co., 453 F.3d at 1154.

B. Legal Framework for Personal Jurisdiction Analysis

We first outline the legal framework for our personal jurisdiction analysis.

When no federal statute specifically defines the extent of personal jurisdiction, we look to the law of the state where the district court sits—in this case, Arizona. Arizona's long-arm rule permits the exercise of personal jurisdiction to the extent allowed by the due process clause of the United States Constitution.

CE Distrib., LLC v. New Sensor Corp., 380 F.3d 1107, 1110 (9th Cir.2004) (internal citations and quotation signals omitted).

A court may exercise personal jurisdiction over a defendant consistent with due process only if he or she has "certain minimum contacts" with the relevant forum "such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). Unless a defendant's contacts with a forum are so substantial, continuous, and systematic that the defendant can be deemed to be "present" in that forum for all purposes, a forum may exercise only "specific" jurisdiction—that is, jurisdiction based on the relationship between the defendant's forum contacts and p...