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Anspach v. Meyer

United States District Court, D. Arizona

January 30, 2014

Dana Anspach a single woman; and Sensible Money, LLC, an Arizona limited liability corporation, Plaintiff,
William Meyer, et al., Defendants.


DAVID G. CAMPBELL, District Judge.

Defendants Laner and Hazelton & Laner have filed a motion to dismiss for lack of personal jurisdiction. Doc. 16. Defendants William Meyer and Retiree, Inc. have filed a motion to dismiss under Rule 12(b)(6) or Rule 12(b)(3). In the alternative, Defendants move to transfer the case to a district court in Kansas, or, in the alternative, to stay these proceedings. Doc. 20. The motions have been fully briefed. Docs. 26, 29, 30, 31, 34. For the following reasons, the Court will grant a portion of the Rule 12(b)(6) motion and deny the remaining motions.[1]

I. Background.

Plaintiff Anspach, an Arizona resident, is a financial planner who offers clients her expertise in financial investments and planning, including the area of retirement planning. Doc. 1, ¶ 22. Since 2008, Anspach has had a business relationship with, an internet-based information and advice source previously owned by the New York Times. Id. , ¶ 24. Anspach acts as a "Guide" for's Money Over 55 website, and writes eight new articles a month, attracting a readership of 200, 000 people per month. Id. , ¶ 26.

Defendant William Meyer, a Kansas resident, is one of two shareholders of Retiree, Inc. Id., ¶¶ 4-8. Meyer asserts that, through Retiree, Inc., he has developed a unique business model for increasing the amount and longevity of retirees' retirement assets. Doc. 16 at 2. In 2011, Meyer contacted Anspach about the possibility of working together in the area of financial planning. Doc. 1, ¶¶ 35-36. In preparation for these talks, in April 2011, Meyer asked Anspach to sign a confidentiality agreement with Retiree, Inc., in order to protect the proprietary nature of his business model, which she did. Id. at 37; Doc. 20 at 3. Around the same time, Anspach and Meyer also began a romantic relationship. Doc. 1 at 37. The business and personal relationships between Anspach and Meyer ended after about six months.

In 2011, after her relationship with Meyer ended, Anspach founded Sensible Money, LLC, for which she is the sole member and manager. Id., ¶ 3. According to allegations by Meyer, Anspach used Sensible Money, LLC, to impermissibly take credit for and use Meyer's business model. Doc. 20 at 3. When Meyer learned of Anspach's actions through Sensible Money, LLC, he asked attorney Joel Laner of Hazelton & Laner LLP to protect Retiree, Inc.'s interests. Laner thereafter filed a grievance against Anspach with the Certified Financial Planner Board of Standards ("CFP Board") in January 2012. Doc. 1, ¶ 43. The grievance alleged that Anspach had violated the confidentiality agreement with Retiree, Inc., violating the CFP Board's rules of conduct. Doc. 1-2.

Also in January 2012, Laner sent a letter to, courtesy of the New York Times Company, informing them that Anspach "has recently breached our contract" and that Retiree, Inc. would "move forward to include the The New York Times in the lawsuit" [ sic ], and demanding that Anspach be removed as the Money Over 55 "Guru" and the pages she had written for the website be taken down, among other things. Doc. 1-3. Laner sent another letter to on January 18, 2012, attaching the confidentiality agreement, describing Anspach as having promulgated "a clone" of Retiree, Inc.'s unique business model, and asserting that Anspach had violated's Ethics and Disclosure Policies, among other things. Doc. 1-4.

On February 7, 2012, Retiree, Inc. filed a complaint in the United States District Court for the District of Kansas for breach of contract and preliminary and permanent injunctive relief against Anspach and Sensible Money, LLC. Id. The forum was chosen pursuant to a forum selection clause in the confidentiality agreement that identified Kansas federal court as the proper forum for all disputes arising out of breach of the agreement. Doc. 20 at 13. In July 2013, the Kansas court issued a preliminary injunction against Anspach, ordering her to discontinue use of the Excel spreadsheet that Retiree, Inc. alleged was proprietary and to remove all material from her website that was created using the spreadsheet. Id. at 4; Doc. 1-5 at 14. Anspach was also "enjoined from utilizing the developed Excel model in presentations, speaking engagements, books, and articles." Doc. 1-5 at 14.

On August 12, 2013, Laner wrote a letter to Apress Media, LLC, the publisher of a 2013 book by Anspach entitled Control Your Retirement Destiny. Laner's letter informed Apress of the injunction, asserted that Anspach's book contained illustrations of the spreadsheet referenced by the court's order, and demanded that Apress discontinue the book's publication. Doc. 1-6. At the same time, Laner sent a similar letter to InterActiveCorp ("IAC"), the entity that had acquired from The New York Times Company, informing it of the injunction and asking it "to assure that it does not serve as a vehicle for the defiance of a federal court's injunction." Doc. 1-7. The letter sought assurances from to that end. Id.

By affidavit, Laner swears that the only other contact he had with Anspach was during the course of his due diligence representing Meyer. Doc. 16-1 at 2. He testified that he asked Anspach "to provide copies of the contract she had with her business partner to ensure that the business partner did not have any continuing rights to revenue that would interfere with [Meyer's] rights in any new business venture. [Laner] also asked her to make sure she had provided any schedules of assets which would be critical to protecting [Meyer's] rights." Id. at 2-3. It is Laner's position that Anspach was never his client. Id. at 2.

On September 11, 2013, Anspach filed her complaint in this court, alleging claims against Meyer, Retiree, Inc., Joel Laner, and Hazelton & Laner, LLP for (1) violations of the Lanham Act; (2) defamation; (3) tortious interference with prospective economic advantage; and (4) breach of fiduciary duty by Laner. Doc. 1.

II. Motion to Dismiss for Lack of Personal Jurisdiction.

Defendants Laner and Hazelton & Laner, LLP move to dismiss the claims against them for lack of personal jurisdiction. Plaintiffs bear the burden of establishing personal jurisdiction. See Ziegler v. Indian River Cnty., 64 F.3d 470, 473 (9th Cir. 1995). Because the Court is resolving Defendants' motions without an evidentiary hearing, Plaintiffs "need make only a prima facie showing of jurisdictional facts to withstand the motion to dismiss." Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995). That is, Plaintiffs "need only demonstrate facts that if true would support jurisdiction[.]" Id. [2] Although Plaintiffs cannot simply rest on the bare allegations of their complaint, uncontroverted allegations in the complaint must be taken as true. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004) (citing AT & T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996)); Amba Mktg. Sys., Inc. v. Jobar Int'l, Inc., 551 F.2d 784, 787 (9th Cir. 1977).

As there is no applicable federal statute governing personal jurisdiction, Arizona's long-arm statute applies. See Terracom v. Valley Nat'l Bank, 49 F.3d 555, 559 (9th Cir. 1995). Arizona Rule of Civil Procedure 4.2(a) "provides for personal jurisdiction co-extensive with the limits of federal due process."[3] Doe v. Am. Nat'l Red Cross, 112 F.3d 1048, 1050 (9th Cir. 1997). Federal due process requires that a defendant have certain "minimum contacts" with the forum state such that the exercise of personal jurisdiction does not offend "traditional notions of fair play and substantial justice." See Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

Neither party contends that Defendants are subject to general jurisdiction. The Ninth Circuit has established a three-part inquiry for specific jurisdiction: (1) has the defendant purposefully directed his activities at the forum or a resident thereof or performed some act by which he purposefully availed himself of the privileges of conducting activities in the forum, (2) do the claims arise out of or relate to the defendant's forum-related activities, and (3) is the exercise of jurisdiction reasonable? See Schwarzenegger, 374 F.3d at 802 (citation omitted).

A. Purposeful Availment.

In cases sounding in tort, such as this one, courts analyze the "purposeful availment" or "purposeful direction" prong by assessing "whether a defendant purposefully direct[ed] his activities at the forum state, " and apply an "effects test that focuses on the forum in which the defendant's actions were felt, whether or not the actions themselves occurred in the forum." Yahoo! Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme, 433 F.3d 1199, 1206 (9th Cir. 2006) (citing Schwarzenegger, 374 F.3d at 803). A defendant purposefully directs conduct at a forum where he has "(1) committed an intentional act, which was (2) expressly aimed at the forum state, and (3) caused harm... which is suffered and which the defendant knows is likely to be suffered in the forum state." CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1077 (9th Cir. 2011) (quoting Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1128 (9th Cir. 2010)); see also Yahoo! Inc., 433 F.3d at 1207 (clarifying that the "brunt of the harm need not be suffered in the forum state"). The Ninth Circuit has explained that "express aiming" occurs when the "defendant is alleged to have engaged in wrongful conduct targeted at a plaintiff whom the defendant knows to be a resident of the forum state." Bancroft & Masters, Inc. v. Augusta Nat'l Inc., 223 F.3d 1082, 1087 (9th Cir. 2000).

Plaintiffs allege that Defendants Laner and Hazelton & Laner, LLP sent letters to the CFP Board, the New York Times Company, Apress Media LLC, and IAC that were expressly aimed at Arizona because they targeted parties known to be residents of Arizona and caused harm to Plaintiffs suffered in Arizona. Plaintiffs also claim that the lawsuit filed in Kansas was an intentional act directed at Arizona residents. Defendants assert that they did not purposefully avail themselves of the benefits of Arizona law or direct wrongful conduct at the forum, and claim that this situation is analogous to that in Xcentric Ventures, LLC v. Bird, 683 F.Supp.2d 1068, 1072 (D. Ariz. 2010). In Xcentric, the Court found no personal jurisdiction over Defendants who had published an allegedly defamatory article, ...

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