Ziegler v. Indian River County, No. 93-17310

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before GOODWIN, FARRIS, and KLEINFELD; FARRIS
• Citation: 64 F.3d 470
• Parties: 95 Cal. Daily Op. Serv. 6388, 95 Daily Journal D.A.R. 10,926 John A. ZIEGLER, Plaintiff-Appellant, v. INDIAN RIVER COUNTY; R.T. Dobeck, individually and as Sheriff, Indian River County; Mark Gibbons, individually and as Sergeant of the Indian River County Sheriff's Office; Riverfront Groves, Inc.; Daniel Richey; and Does I through X, inclusive, Defendants-Appellees.
• Decision Date: 14 August 1995
• Docket Number: No. 93-17310

Page 470

64 F.3d 470 95 Cal. Daily Op. Serv. 6388, 95 Daily Journal
D.A.R. 10,926 John A. ZIEGLER, Plaintiff-Appellant,
v.
INDIAN RIVER COUNTY; R.T. Dobeck, individually and as
Sheriff, Indian River County; Mark Gibbons, individually
and as Sergeant of the Indian River County Sheriff's Office;
Riverfront Groves, Inc.; Daniel Richey; and Does I
through X, inclusive, Defendants-Appellees. No. 93-17310. United States Court of Appeals,
Ninth Circuit. Argued and Submitted June 13, 1995.
Decided Aug. 14, 1995.

Page 472

Charles Bourdon, Bourdon & Reisman, San Francisco, CA, for plaintiff-appellant.

Lyman H. Reynolds, Jr., Roberts & Reynolds, West Palm Beach, FL, for defendant-appellee Indian River County.

Julius F. Parker, Jr., Parker, Skelding, Labasky & Corry, Tallahassee, FL, for defendants-appellees Tim Dobeck and Mark Gibbons.

Daniel T. Bernhard, Pettit & Martin, San Francisco, CA, for defendants-appellees Riverfront Groves, Inc. and Daniel Richey.

Appeal from the United States District Court for the Northern District of California.

Before GOODWIN, FARRIS, and KLEINFELD, Circuit Judges.

FARRIS, Circuit Judge:

We must decide whether the nonresident defendants had sufficient minimum contacts with California to subject them to specific jurisdiction there.

I.

Ziegler was the Chief Executive Officer of Justin International, a San Francisco-based domestic fruit brokerage firm. Riverfront Groves, Inc. grows and packs citrus fruit in Florida.

Justin International purchased large quantities of citrus from Riverfront Groves on a regular basis for approximately fourteen years. Fruit purchased by Justin International from Riverfront Groves was sent directly to various domestic and international locations.

On March 26, 1991, Justin International mailed a check for $23,416.27, signed by Ziegler, to Riverfront Groves for fruit purchased in January and February 1991. None of this fruit was sent to California. Two days later, after consultation with attorneys, Ziegler notified his bank that he was terminating the company's business activity. The bank immediately froze Justin International's accounts and applied these funds to outstanding loans. As a result, the March 26 check to Riverfront Groves was returned for insufficient funds.

Riverfront Groves' executive vice president mailed a letter to Ziegler from Florida on April 22, 1991, demanding payment. The letter stated that, pursuant to Florida law, failure to satisfy the full amount of the dishonored check could result in referral to the State Attorney for criminal prosecution. Ziegler did not respond.

On August 8, 1991, Sergeant Mark Gibbons of the Indian River County Sheriff's Office wrote a letter on official stationery and sent it to Ziegler in California. The letter cautioned Ziegler that failure to satisfy his debt to Riverfront Groves could result in criminal prosecution.

On August 9, 1991, Sheriff Dobeck caused a subpoena duces tecum to be issued by a Florida court, commanding Ziegler's California bank to produce Ziegler's and Justin International's checking account records. The records produced by the bank showed that on March 6--the date Ziegler signed the

Page 473

check on behalf of Justin International--Justin had at least $67,000 in its account. The check was therefore good when Ziegler signed and mailed it to Riverfront Groves. Despite receipt of the bank records, Sergeant Gibbons obtained a Florida warrant for Ziegler's arrest in February 1991 on charges of grand theft. Ziegler was arrested in San Francisco on August 8, 1992.

Soon after Ziegler's arrest, Florida commenced extradition proceedings. On October 8, 1992, the Governor of California issued a warrant for Ziegler's return to Florida to stand trial for the crime of grand theft. Ziegler's counsel petitioned the California Governor's office to rescind the warrant of rendition. Several months later, based upon evidence that the dishonored check was good when written, a Florida prosecutor moved to rescind Ziegler's arrest warrant. The motion was granted. The extradition proceedings and prosecution terminated. This Sec. 1983 action for conspiracy to violate constitutional rights followed.

Upon defendants' motion, the district court dismissed for lack of personal jurisdiction. Ziegler timely appeals.

II.

It is the plaintiff's burden to establish jurisdiction. Farmers Ins. Exchange v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir.1990). To survive a jurisdictional challenge on a motion to dismiss, the plaintiff need only make a prima facie showing of jurisdiction where, as here, the district court did not hear testimony or make findings of fact. Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 268 (9th Cir.1995). We review de novo. Id. at 269.

There are two types of personal jurisdiction: general and specific. Reebok Int'l Ltd. v. McLaughlin, 49 F.3d 1387, 1391 (9th Cir.1995). General jurisdiction exists if the nonresident's contacts with the forum are continuous and systematic, and the exercise of jurisdiction satisfies "traditional notions of fair play and substantial justice." Id. Ziegler does not contend that the district court had general jurisdiction; only specific jurisdiction is at issue.

An exercise of specific "[j]urisdiction must comport with the state long-arm statute, and with the constitutional requirement of due process." Omeluk, 52 F.3d at 269. California's long-arm statute extends jurisdiction to the limits imposed by the Due Process Clause. Cal.Code Civ.P. Sec. 410.10; see also Terracom v. Valley Nat'l Bank, 49 F.3d 555, 559 (9th Cir.1995). Consequently, the question is whether exercising jurisdiction over defendants would offend due process.

Ziegler was required to show that: (1) defendants purposefully availed themselves of the privilege of conducting activities in California, thereby invoking the benefits and protections of its laws; (2) his claims arise out of defendants' California-related activities; and (3) the exercise of jurisdiction would be reasonable. Terracom, 49 F.3d at 560.

A. Purposeful Availment

The purposeful availment requirement ensures that defendants will not be "haled into a jurisdiction through 'random,' 'fortuitous,' or 'attenuated' contacts.' " Terracom, 49 F.3d at 560 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985)).

Although there is some disagreement on the issue, we apply different purposeful availment tests to contract and tort cases. See Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1486 (9th Cir.1993); Roth v. Garcia Marquez, 942 F.2d 617, 621 (9th Cir.1991). But see Core-Vent, 11 F.3d at 1493 (Wallace, C.J., dissenting). Consistent with the Supreme Court's holding in Burger King, merely contracting with a resident of the forum state is insufficient to confer specific jurisdiction over a nonresident. Roth, 942 F.2d at 621. In tort cases, however, jurisdiction may attach if an out-of-forum defendant merely engages in conduct aimed at, and having effect in, the situs state. Id.

Ziegler alleges violations of his constitutional rights and seeks damages under 42 U.S.C. Sec. 1983. He does not assert supplemental state-law tort claims.

Page 474

A section 1983 claim for deprivation of a constitutional right is more akin to a tort claim than a contract claim. We therefore analyze the question of purposeful availment using the tort-case standard. Cf. Magid v. Marcal Paper Mills, 517 F.Supp. 1125, 1130 (D.Del.1981) (claims under Age Discrimination in Employment Act alleged tortious injury within meaning of Delaware long-arm statute); Overby v. Johnson, 418 F.Supp. 471 (E.D.Mich.1976) (Sec. 1983 claim an "action for tort" within meaning of Michigan long-arm statute).

Ziegler's complaint alleges that defendants conspired to...