Bernard v. Atlas Score, LLC
| Decision Date | 12 March 2013 |
| Docket Number | Case No.: 3:12-cv-02104-HA |
| Parties | CASEY BERNARD, Plaintiff, v. ATLAS SCORE, LLC & ERIK S. MOORE, Defendants. |
| Court | U.S. District Court — District of Oregon |
Plaintiff filed this action alleging that defendants violated the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681, et seq., after defendants obtained or used a consumer credit report on plaintiff for an improper purpose. Defendant Erik S. Moore (Moore) has not yet appeared in this matter. Defendant Atlas Score (Atlas) seeks to dismiss the claims against it based on a lack of personal jurisdiction. The parties did not request oral argument. For the following reasons, defendant Atlas's Motion to Dismiss [13] is denied with leave to renew.
Atlas has submitted an affidavit in support of its motion to dismiss, and plaintiff has not submitted any material outside of his pleadings. For the purposes of analyzing the presentmotion to dismiss, the court assumes the following facts, drawn from the affidavit and plaintiff's Amended Complaint.
Plaintiff is an Oregon resident. Moore is a California attorney who represents plaintiff's former spouse. At some point within the last two years, Moore requested a consumer credit report on plaintiff to aid in the collection of support payments for plaintiff's ex-wife, Moore requested the report through a third party known as "Aramor Agency." Aramor Agency in turn hired Atlas as its agent to obtain plaintiff's consumer report. Atlas requested plaintiff's consumer report and delivered it to Moore in California, through its credit report provider, Microbilt, which is a company based in Georgia.
Atlas is a limited liability company established in Missouri with a single office in Missouri. It is an entirely internet-based business that provides credit reports to pre-qualified and registered customers through its website. Oregon residents may access its website, but it otherwise has no contacts with Oregon. The parties dispute whether Atlas knew that plaintiff is a resident of Oregon.
The plaintiff bears the "burden of establishing that this court has personal jurisdiction over the defendants. Wash. Shoe Co. v. A-Z Sporting Goods Inc., 704 F.3d 668, 671-72 (9th Cir. 2012). Where the court considers a motion to dismiss for lack of personal jurisdiction without conducting an evidentiary hearing, the plaintiff is required only to make a prima facie showing of jurisdictional facts to withstand the motion. Id. The court must accept uncontroverted allegations in the plaintiff's complaint as true. Cisneros v. Trans Union, LLC, 293 F. Supp. 2d 1156, 1164 (D. Haw. 2003) (citing AT&T Co. v. Compagnie Bruxelles Lambert, 94 F.3d 586,588 (9th Cir. 1996)). If the defendant presents evidence or affidavits to contradict the plaintiff's allegations, the plaintiff must present affirmative proof of jurisdiction beyond the pleadings, Id. The court must resolve all conflicts between the parties' affidavits in the plaintiff's favor. Id.; Wash. Shoe Co., 704 F.3d at 672.
Personal jurisdiction over a non-resident defendant is tested under a two-prong analysis. The exercise of jurisdiction must: (1) satisfy the requirements of the long-arm statute of the state in which the district court sits; and (2) comport with the principles of federal due process. Ziegler v. Indian River County, 64 F.3d 470, 473 (9th Cir. 1995). Oregon's long arm statute extends jurisdiction to the limits of due process under the United States Constitution. Nike, Inc. v. Spencer, 707 P.2d 589, 591 (Or. Ct. App. 1985); see ORCP 4. The relevant question, therefore, is whether the requirements of due process are satisfied by the exercise of personal jurisdiction over Atlas in Oregon.
The Due Process Clause of the U.S. Constitution protects persons from being subject to the binding judgments of a forum with which they have "established no meaningful 'contacts, ties, or relations.'" Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72 (1985) (citing Int'l Shoe Co. v. Washington, 326 U.S. 310, 319 (1945)). Due process requires that a defendant have "minimum contacts with the forum state such that the exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice." Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 839 (9th Cir. 1986) (citing Int'l Shoe Co., 326 U.S. at 316). "A court may exercise either general or specific jurisdiction over a nonresident defendant." Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990) (citation omitted). In this case, neitherparty suggests that general jurisdiction is appropriate, and plaintiff's pleadings do not support such a finding. Therefore, only specific jurisdiction is at issue.
Specific jurisdiction over a non-resident defendant requires: (1) that the non-resident purposefully direct its activities at the forum or perform some act by which it purposefully avails itself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and (3) the exercise of jurisdiction must be reasonable. Fiore v. Walden, 688 F.3d 558, 573-74 (9th Cir. 2012) (citing Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004)). If the plaintiff meets the first and second elements, the burden shifts to the defendant to present a compelling case that the exercise of jurisdiction would be unreasonable. Schwarzenegger, 374 F.3d at 802 (citation omitted). However, if the plaintiff fails at the first step, then the jurisdictional inquiry ends and the defendant must be dismissed from the case. Boschetto v. Hansing, 539 F.3d 1011, 1016 (9th Cir. 2008).
In analyzing whether the assertion of jurisdiction is reasonable, courts consider: (1) the extent of a defendant's purposeful interjection into the forum; (2) the burden defending the action in the chosen forum would impose upon a defendant; (3) the extent of any conflict with the sovereignty of (lie defendant's state; (4) the forum state's interest in the dispute; (5) which forum may most efficiently resolve the dispute; (6) the importance of the chosen forum to the plaintiff's interest in convenient and effective relief; and (7) the existence of an alternative forum. Gray & Co. v. Firstenberg Mack Co., 913 F.2d 758, 761 (9th Cir. 1990). If a plaintiff establishes purposeful availment and reasonableness, the defendant must present a compelling case to demonstrate that jurisdiction is unreasonable. Wash. Shoe Co., 704 F.3d at 672.
To establish the purposeful direction prong in a FCRA case, the Ninth Circuit has utilized the Calder-effects test derived from Calder v. Jones, 465 U.S. 783, 788-90 (1984). Myers v. Bennett Law Offices, 238 F.3d 1068, 1072-74 (9th Cir. 2001). Under this test, a plaintiff may establish purposeful direction by showing that the non-resident defendant committed an intentional act, expressly aimed at the forum state, which caused harm that the defendant knew would likely be suffered in the forum state. Ft ore, 688 F.3d at 576. Thus, "where there was 'individual targeting' of forum residents—actions taken outside the forum state for the purpose of affecting a particular forum resident or a person with strong forum connections—[the courts] have held the express aiming requirement satisfied." Id. at 577 (citations omitted).
Firstly, Atlas acted intentionally when it requested and obtained a consumer credit report on plaintiff. For the purpose of determining purposeful availment, "an intentional act is an external manifestation of the actor's intent to perform an actual, physical act in the real world, not including any of its actual or intended results." Wash. Shoe Co., 704 F.3d at 674. This requirement is clearly satisfied by Atlas's conduct. Additionally, the Ninth Circuit has held that harm due to violations of the FCRA occurs where the plaintiff feels the consequences, which in this case is Oregon. Myers, 238 F.3d at 1074. Therefore, the third requirement is also met.
The second question-express aiming—is at the heart of the parties' dispute. Under the Calder effects test adopted in Myers, a defendant's conduct is expressly aimed at the forum state when it requests a credit inquiry on a plaintiff that it knows is a resident of the forum. Myers, 238 F.3d at 1073. Defendants contend that plaintiff cannot establish a prima facie casesupporting jurisdiction because he cannot show that defendants targeted plaintiff or even knew he was an Oregon resident.
Atlas asserts that it only maintains a passive website, has no contacts with Oregon, and had no knowledge of plaintiff's residence at the time it requested his consumer report. Although the "maintenance of a passive website alone" is insufficient to satisfy the express aiming prong, "operating even a passive website in conjunction with 'something more'—conduct directly targeting the forum—is sufficient." Mavrix Photo Inc. v. Brand Techs., Inc, 647 F.3d 1218, 1229 (9th Cir. 2011) (citations omitted). A defendant has done "something more" when it has "individually targeted a plaintiff known to be a forum resident." Id. (citations and quotation omitted). Thus, for express aiming, "[k]nowledge of the plaintiff's residence is the crucial element." Gordon v. DTE Energy, 680 F. Supp. 2d 1282, 1285 (W.D. Wash. 2010) (citations omitted); see also Cisneros, 293 F. Supp. 2d at 1166 (...
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