Fiore v. Walden
| Citation | 2012 Daily Journal D.A.R. 10996,688 F.3d 558,12 Cal. Daily Op. Serv. 8972 |
| Decision Date | 08 August 2012 |
| Docket Number | No. 08–17558.,08–17558. |
| Parties | Gina FIORE; Keith Gipson, Plaintiffs–Appellants, v. Anthony WALDEN; Unknown Agents of the Federal Government, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Robert A. Nersesian and Thea Marie Sankiewicz, Nersesian & Sankiewicz, Las Vegas, NV, for the plaintiffs-appellants.
Michael F. Hertz, Acting Assistant Attorney General, and Barbara L. Herwig and Kelsi Brown Corkran, Attorneys, Civil Division, Department of Justice, Washington, D.C., for the defendants-appellees.
Appeal from the United States District Court for the District of Nevada, Edward C. Reed, Senior District Judge, Presiding. D.C. No. 2:07–cv–01674–ECR–LRL.
Before: ALFRED T. GOODWIN, MARSHA S. BERZON, and SANDRA S. IKUTA, Circuit Judges.
ORDER
The opinion, filed on September 12, 2011, is withdrawn and replaced by the amended opinion attached to this order.
With this amendment, the majority of the panel has voted to deny appellee's petition for rehearing. Judge Berzon has voted to deny the petition for rehearing en banc and Judge Goodwin so recommends. Judge Ikuta has voted to grant the petition for rehearing and petition for rehearing en banc.
The full court has been advised of the petition for rehearing en banc. A judge of the court requested a vote on en banc rehearing. The majority of the active judges have voted to deny rehearing the matter en banc. Fed. R.App. P. 35(f).
The petition for rehearing and the petition for rehearing en banc are DENIED. Judge O'Scannlain's and Judge McKeown's dissents from denial of en banc rehearing are filed concurrently herewith.
O'SCANNLAIN, Circuit Judge, joined by TALLMAN, CALLAHAN, BEA, and IKUTA, Circuit Judges, dissenting from the order denying rehearing en banc:
Due process allows a court to exercise personal jurisdiction over a defendant only if “the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (emphasis added; internal quotation marks omitted). To meet this requirement in a tort case, a plaintiff generally must show that the defendant “expressly aimed” his tortious conduct at the forum state. Calder v. Jones, 465 U.S. 783, 789, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984).
In this case, the panel majority disregarded that fundamental requirement of due process. It held that a Nevada court could exercise personal jurisdiction over a defendant for his allegedly tortious conduct in Georgia even though: (1) all of the actions forming the basis of the plaintiffs' sole legal claim were taken in and directed at Georgia, and (2) when the defendant took those actions he did not know that the plaintiffs had any relevant connection to Nevada.
This ruling clashes with Supreme Court case law, exacerbates a conflict in our circuit law, begets a second intra-circuit conflict, and creates or deepens two lopsided conflicts with other circuits. The panel majority embraced the wrong side of each conflict. As Judge Ikuta recognized in dissent, the panel's holding “threatens a substantial expansion of the scope of personal jurisdiction.” 657 F.3d 838, 864. We should have reheard this matter en banc to restore our circuit law and to harmonize it with that of the Supreme Court. I respectfully dissent from the regrettable failure to rehear this case en banc.
A gambling trip in San Juan, Puerto Rico, left Gina Fiore and Keith Gipson with some $97,000 in cash. In August 2006 they took their cash to the San Juan airport to fly to Atlanta and then to Las Vegas. 657 F.3d at 842–43.
At the San Juan airport, TSA agents searched Fiore, Gipson, and their carry-on bags. After discovering their $97,000, the TSA agents summoned three DEA agents. Fiore told DEA agent Michael Cuento that she and Gipson had been gambling in San Juan. Fiore and Gipson showed Cuento their California driver's licenses, told Cuento that they had California and Nevada residences, and said that they were returning to the Nevada residences. Cuento let them board the plane but told them they might be questioned later in their trip. 657 F.3d at 843.
When Fiore and Gipson arrived in Atlanta and headed to their connecting gate to Las Vegas, DEA agent Anthony Walden approached them. Fiore and Gipson said they were going to Las Vegas and showed him California driver's licenses. After a drug-detection dog alerted at Gipson's bag, Walden seized all of Fiore and Gipson's cash because he suspected that it was connected to illicit drug activity. Walden told them that their money would be returned if they could show that they had obtained it legitimately. 657 F.3d at 843, 850.
Fiore and Gipson then flew to Las Vegas. They forwarded to Walden documents substantiating that their money was legitimately obtained. They allege that, despite this documentation, Walden helped prepare a false probable cause affidavit to facilitate an action to forfeit their cash to the government. Walden allegedly submitted the affidavit to the U.S. Attorney for the Northern District of Georgia. 657 F.3d at 843–44.
The Assistant U.S. Attorney in charge of the case ultimately concluded that the government lacked probable cause to forfeit Fiore and Gipson's cash. The cash was returned about seven months after Walden seized it. 657 F.3d at 844.
Fiore and Gipson sued Walden in Nevada under Bivens, alleging that Walden violated their Fourth Amendment rights when he seized their cash in Georgia. Fiore and Gipson did not allege that Walden knew that they had relevant Nevada connections or that Walden directed his conduct at Nevada when he seized the money. They did not allege, for example, that they told Walden that they had Las Vegas residences, that Cuento spoke with Walden, that Cuento told Walden of Fiore and Gipson's connection to Las Vegas, that Fiore and Gipson showed Walden any Nevada-issued identification, or even that Walden later learned of their Nevada residences. See657 F.3d at 861 (Ikuta, J., dissenting). Because Walden's search-and-seizure conduct was “expressly aimed” at Georgia—and Walden thus had no contacts with Nevada that are relevant to Fiore and Gipson's one claim—the district court dismissed the complaint for lack of personal jurisdiction.
A divided panel of our court reversed. The panel majority accepted that Walden's seizure of the cash was “expressly aimed” at Georgia and thus could not independently support personal jurisdiction over him in Nevada. 657 F.3d at 849. But the majority believed that “the false probable cause affidavit aspect of the case” supported jurisdiction in Nevada. Id. (emphasis added). When Walden prepared the allegedly false affidavit, the majority contended, he knew that Fiore and Gipson had “significant connections” to Nevada. Id. at 851. The majority hypothesized that Walden by then knew of these “significant connections” because the plaintiffs told him that they were going to Las Vegas, the plaintiffs' funds were allegedly identifiable as originating from and returning to Las Vegas, Walden or someone else ran background checks on the plaintiffs after they returned to Nevada, and Fiore and Gipson sent Walden documents from Nevada. Id. at 850–51.
Based on these connections, the majority concluded that Walden “expressly aimed” his conduct at Nevada when he prepared the affidavit. 657 F.3d at 854;see id. at 850–51. Although this affidavit-related conduct did not form the basis of Fiore and Gipson's one and only claim—a Fourth Amendment claim based on the seizure at the Atlanta airport—the majority held that such conduct could support the exercise of pendent personal jurisdiction in Nevada over that claim. Id. at 858. The panel remanded to the district court to decide whether to exercise pendent jurisdiction over the seizure claim. Id.
Judge Ikuta dissented. “As a matter of simple logic,” she explained, “a defendant cannot ‘expressly aim’ an intentional act at a victim's home state if the defendant committing the action does not even know that the victim has any connection with that state.” 657 F.3d at 862. Because Walden did not know of the plaintiffs' ties to Nevada when he seized their cash—and because the seizure forms the basis for the plaintiffs' only claim—he could not have expressly aimed his relevant conduct at Nevada. Id. at 862–63.
Noting that this should have been “the end of the matter,” Judge Ikuta faulted the majority for allowing jurisdiction based on the false affidavit “aspect” of the case. 657 F.3d at 862, 863. The false affidavit was not used to seize the plaintiffs' cash; it was prepared after the seizure, to facilitate a forfeiture action. See id. at 861, 863. Thus, Judge Ikuta explained, any affidavit conduct could not support the exercise of personal jurisdiction over the seizure claim because the court could not say, as required by due process, that the seizure claim arose out of or related to Walden's later conduct in preparing the affidavit. Id. at 864.
The panel decision conflicts with Supreme Court case law, with decisions of other circuits, and with decisions of our court. We should have taken this case en banc to eliminate those conflicts.
The panel decision conflicts with Calder v. Jones, which holds that a court may exercise personal jurisdiction over a tort defendant only if the defendant “expressly aimed” his tortious conduct at the forum state.465 U.S. at 789, 104 S.Ct. 1482.
For a court to have specific personal jurisdiction over a non-resident tort defendant, (1) the defendant must have purposefully directed specific activities toward the state forum, (2) the plaintiff's claim must arise out of or relate to those specific...
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