817 F.2d 1416 (9th Cir. 1987), 85-4414, Lake v. Lake

Docket Nº:85-4414.
Citation:817 F.2d 1416
Party Name:Scott Alan LAKE and Cathy Lake, husband and wife, and Scott Alan Lake as Guardian Ad Litem on behalf of the Minor Child Brian Robert Lake, Plaintiffs- Appellants, v. Diane Marie LAKE, now known as Diane Marie Klymciw, Defendant, Steven C. Taylor, Attorney at Law, Defendant-Appellee.
Case Date:May 26, 1987
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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817 F.2d 1416 (9th Cir. 1987)

Scott Alan LAKE and Cathy Lake, husband and wife, and Scott

Alan Lake as Guardian Ad Litem on behalf of the

Minor Child Brian Robert Lake,

Plaintiffs- Appellants,


Diane Marie LAKE, now known as Diane Marie Klymciw, Defendant,

Steven C. Taylor, Attorney at Law, Defendant-Appellee.

No. 85-4414.

United States Court of Appeals, Ninth Circuit

May 26, 1987

Argued and Submitted Dec. 4, 1986.

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[Copyrighted Material Omitted]

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Patricia B. Urquhart, Boise, Idaho, for plaintiffs-appellants.

John P. Howard, Boise, Idaho, for defendant-appellee.

Appeal from the United States District Court for the District of Idaho.

Before BROWNING, WRIGHT, and BOOCHEVER, Circuit Judges.

BOOCHEVER, Circuit Judge:

Scott Lake, Cathy Lake, and Scott Lake, as guardian ad litem for the minor child Brian Lake (the Lakes), appeal the district court's order dismissing Stephen C. Taylor based on a lack of personal jurisdiction. Because the Lakes made an adequate showing that Taylor purposefully availed himself of the services of the Idaho authorities and that the Lakes' claim arises out of that conduct, we reverse.

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Scott Lake is Brian's natural father, Cathy Lake is his stepmother, and Diane Klymciw, formerly Diane Lake, is Brian's natural mother. The California Superior Court entered an interlocutory Judgment of Dissolution of Marriage awarding Scott Lake the care, custody, and control of Brian Lake with visitation rights to Diane Klymciw. Shortly after the December hearing on the interlocutory decree of divorce, Diane retained attorney Stephen C. Taylor of Los Angeles County, California. Taylor moved to set aside the custody provisions of the interlocutory decree.

After a hearing, the court amended the decree to provide for joint legal custody over Brian. The court left Brian in his father's physical custody and Diane was given visitation rights. The Lakes then moved with Brian to Washington. The final decree of dissolution was entered leaving Brian Lake in the custody of Scott Lake. Around November 1978 the Lakes moved to San Diego, California. Scott later enlisted in the United States Air Force and, as a result, the Lakes took up residence near Mountain Air Force Base, Idaho, in August of 1979. During this time, Diane may have lost touch with the Lakes.

In 1980, Diane contacted Hour Magazine, a television program, which was interested in producing a segment on the recovery of kidnapped children. Hour Magazine put Diane in contact with attorney Andrew Yankwitt, who was associated with the Citizens' League on Custody and Kidnapping. Yankwitt hired a private investigator who, in January or February 1981, located the Lakes at Mountain Home Air Force Base in Boise, Idaho. On February 25, 1981, in order to aid Diane in securing physical custody of Brian from the Lakes in Idaho, Taylor obtained an ex parte order from the Los Angeles Superior Court awarding temporary custody of Brian to Diane. On March 3, 1981, Diane and Yankwitt went to Idaho, and by using the ex parte order, secured the assistance of the district attorney's office and the Idaho sheriff's department to take custody of Brian. The sheriff made contact with the air force base officials and secured permission to enter the base for the purpose of executing the ex parte order. Scott was ordered by the air force officers to report to the base legal office where he was detained. The air force officers authorized the release of Brian from school. Brian was taken off the base. Scott was subsequently served with the ex parte order. One month later, Diane relinquished custody of Brian to Scott.

The Lakes filed suit alleging numerous tort claims against the parties involved in taking custody of Brian. Taylor moved to dismiss the action over him on the basis that the district court lacked personal jurisdiction. The court granted Taylor's motion. The Lakes appeal.


The Uniform Child Custody Jurisdiction Act (UCCJA) is in effect in both California and Idaho. Cal.Civ.Code Secs. 5150-74 (Deering 1984); Idaho Code Secs. 32-1101 to 1126 (1983). The UCCJA determines the proper state forum for litigation of custody disputes. The California court's jurisdiction to issue the ex parte order of February 25, 1981, depended upon compliance with the requirements of the UCCJA.

Our decision does not necessitate a detailed analysis of the jurisdictional requirements of the UCCJA. Taylor was aware that California and Idaho had adopted the UCCJA in some form. The Lakes contend that Taylor knew that Brian and his father resided in Idaho for at least sixteen months prior to February 1981. They allege that Taylor failed to disclose this fact to the court in obtaining the February 1981 ex parte order even though Taylor knew that this information would prevent the California court from asserting jurisdiction under the UCCJA. Taylor intended the decree to be used to secure the assistance of the appropriate authorities in Idaho. The issue on appeal is whether Taylor's conduct in procuring the ex parte order, intended to be used in Idaho, is sufficient contact to allow Idaho to establish personal jurisdiction over Taylor.

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I. Personal Jurisdiction

A. Standard of Review

The district court decided the issue of its personal jurisdiction over Taylor on the basis of affidavits and written discovery materials: thus, the Lakes needed to make only a prima facie showing of jurisdictional facts in order to avoid the motion to dismiss. Data Disc, Inc. v. Systems Technology Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir.1977). Because the court made no findings on the disputed facts, we review the materials presented de novo to determine if plaintiff has met the burden of showing a prima facie case of personal jurisdiction. Brand v. Menlove Dodge, 796 F.2d 1070, 1072 (9th Cir.1986). All factual disputes are resolved in the plaintiffs' favor. Id.; Fields v. Sedgwick Associated Risks, Ltd., 796 F.2d 299, 301 (9th Cir.1986). Presenting a prima facie case of jurisdiction, however, does not necessarily guarantee jurisdiction over the defendant at the time of trial. The district court has the discretion to take evidence at a preliminary hearing in order to resolve any questions of credibility or fact that arise subsequent to this appeal. If such an event arises, plaintiff, being put to full proof, "must establish the jurisdictional facts by a preponderance of the evidence, just as he would have to do at trial." Data Disc, 557 F.2d at 1285.

B. Idaho's Jurisdiction

In order to establish the existence of personal jurisdiction in a diversity case, the plaintiff must show (1) that the statute of the forum confers personal jurisdiction over the nonresident defendant, and (2) that the exercise of jurisdiction accords with federal constitutional principles of due process. Haisten v. Grass Valley Medical Reimbursement Fund, Ltd., 784 F.2d 1392, 1396 (9th Cir.1986). The Idaho long-arm statute provides that a person is subject to personal jurisdiction if, among other things, he transacts business or commits a tortious act in Idaho and the alleged cause of action arises from that transaction or act. Idaho Code Sec. 5-514 (1979). The Idaho legislature, in adopting that statute, intended to exercise all the jurisdiction available to the State of Idaho under the due process clause of the United States Constitution. Doggett v. Electronics Corp. of Am., 93 Idaho 26, 30, 454 P.2d 63, 67 (1969). Thus, the state and federal limits are coextensive, Data Disc, 557 F.2d at 1286, and we must decide whether the exercise of jurisdiction here accords with constitutional principles of due process.

C. Due Process Test

The due process clause of the fourteenth amendment ensures the fair and orderly administration of laws while preventing binding state judgments against defendants with which the forum has "no contacts, ties, or relations." International Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 160, 90 L.Ed. 95 (1945). Due process is satisfied when jurisdiction is asserted over a defendant who has certain minimum contacts with the forum state such that the maintenance of the action does not offend the "traditional notions of fair play and substantial justice." Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940). This in turn "gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). In determining personal jurisdiction, we focus primarily on "the relationship among the defendant, the forum, and the litigation." Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2580, 53 L.Ed.2d 683 (1977).

A state may exercise either general or specific jurisdiction over a defendant. If a defendant's activities within the forum state are "continuous and systematic" or "substantial," the state has a sufficient relationship with the defendant to assert general jurisdiction. Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 445, 447, 72 S.Ct. 413, 418, 419, 96 L.Ed. 485 (1952).

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If, however, a forum state cannot assert general jurisdiction over the defendant, it may still assert specific jurisdiction depending on the quality and nature of the defendant's contacts with the forum state in relation to the cause of action. Data Disc, 557 F.2d at 1287.

We use a tripartite analysis in determining specific jurisdiction: (1) the nonresident defendant must purposefully direct his activities or consummate some transaction with the forum or residents thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities...

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