United States District Court, D. Arizona
Honorable Rosemary Márquez United States District Judge
Pending before the Court is Defendant Get Air LLC’s Motion to Dismiss (Doc. 43) and Plaintiff’s Motion to Amend (Doc. 45). On December 7, 2015, Magistrate Judge Eric J. Markovich issued a Report and Recommendation (Doc. 71), recommending that this Court grant Plaintiff’s Motion to Amend and deny Defendant’s Motion to Dismiss as moot. Get Air, LLC filed an Objection to the Report and Recommendation on December 21, 2015 (Doc. 73). Plaintiff filed a Response to the Objection on January 15, 2016 (Doc. 77).
Plaintiff Blake Haines alleges that he was seriously injured at a trampoline park in Tucson, Arizona. He filed his original Complaint in the Pima County Superior Court on September 5, 2014. (Doc. 6). Get Air, LLC removed the case to this Court on June 11, 2015. (Doc. 32). On June 19, 2015, Plaintiff filed a Second Amended Complaint (“SAC”) (Doc. 36). Get Air, LLC moved to dismiss the SAC for lack of personal jurisdiction and for failure to state a claim.
In its Motion to Dismiss (Doc. 43), Get Air, LLC argues that this Court lacks personal jurisdiction over it because it is a Utah limited liability company whose sole business is the operation of a trampoline park in Roy, Utah; it has not conducted any business whatsoever in Arizona; and it was not involved in the design, construction, or operation of the Get Air Tucson trampoline park at which Plaintiff was allegedly injured. Get Air, LLC acknowledges in its Motion that there is evidence that the operators of the Get Air Tucson trampoline park adopted and used Get Air, LLC’s employee manual (which contains safety rules - see Doc 43, Ex. 2 to Iverson Affidavit), but it argues that there is no evidence that any member of Get Air, LLC intended that the employee manual be adopted and used by Get Air Tucson. Get Air, LLC supports its personal jurisdiction argument with affidavits from Val Iverson, managing member of Get Air LLC, and Jacob Goodell, managing member of Get Air Tucson Trampolines, LLC. Get Air, LLC also argues in its Motion to Dismiss that Plaintiff’s SAC should be dismissed for failure to state a claim, because the SAC makes no specific factual allegations regarding Get Air, LLC.
Plaintiff filed an Opposition to Get Air, LLC’s Motion to Dismiss, arguing that his SAC alleges sufficient facts to state a cause of action against Get Air, LLC, as well as to establish the necessary minimum contacts with Arizona to establish specific personal jurisdiction. Plaintiff attached several exhibits to his Opposition, including an affidavit, Get Air, LLC’s employee manual, and exhibits showing Val Iverson to be a registered principal of Get Air Tucson Trampolines, LLC. In addition to opposing Get Air, LLC’s Motion to Dismiss, Plaintiff moved for leave to file a Third Amended Complaint (“TAC”) (Doc. 45). The proposed TAC includes new allegations related to Get Air, LLC, including the allegation that Get Air, LLC supplied deficient and defective safety rules, standards, guidelines, policies, and procedures to Get Air Tucson for use in the trampoline park at which Plaintiff was allegedly injured. Get Air, LLC, filed an Opposition to Plaintiff’s Motion to Amend, arguing that the proposed TAC fails to allege a cause of action against Get Air, LLC.
Judge Markovich’s Report and Recommendation analyzes the factors used to determine the propriety of granting leave to amend and finds that they weigh in favor of allowing Plaintiff to file his TAC. With respect to the fifth factor, futility of amendment, the Report recommends finding that the allegations of Plaintiff’s TAC, taken as true, are sufficient to state a plausible claim against Get Air, LLC, because the TAC alleges that Get Air, LLC developed deficient safety rules and supplied them to Get Air Tucson. Accordingly, the Report recommends that Plaintiff’s Motion to Amend be granted. The Report further recommends that Defendant’s Motion to Dismiss be denied as moot, as it was directed to deficiencies in the SAC rather than the TAC.
In its Objection, Get Air, LLC argues that the Report and Recommendation ignores the pending Motion to Dismiss for lack of personal jurisdiction. In its Response to the Objection, Plaintiff notes that Get Air, LLC’s Motion to Dismiss challenges personal jurisdiction relative to the SAC, rather than the TAC, and thus it is appropriate to deny the Motion to Dismiss as moot. Plaintiff further argues that he has presented sufficient evidence to establish a prima facie case of personal jurisdiction against Get Air, LLC.
II. Standard of Review
The district judge must “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). “When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation” of a magistrate judge. Fed.R.Civ.P. 72(b) advisory committee’s note to 1983 addition. See also Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) (“If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error.”); Prior v. Ryan, CV 10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18, 2012) (reviewing for clear error unobjected-to portions of Report and Recommendation).
No objection has been made with respect to the Report’s recommendation that this Court grant Plaintiff’s Motion for Leave to Amend Complaint. Further, no objection has been made with respect to the Report’s recommendation that this Court deny as moot the portion of Get Air, LLC’s Motion to Dismiss seeking dismissal under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. The Court has reviewed the unobjected-to portions of the Report and Recommendation for clear error. After careful examination of the Report and Recommendation, the underlying briefs, and the record, the Court finds no clear error in the unobjected-to-portions of the Report and Recommendation. Accordingly, the Court will adopt the recommendations to grant Plaintiff’s Motion for Leave to Amend Complaint and to deny as moot Get Air, LLC’s Motion to Dismiss under Rule 12(b)(6) for failure to state a claim.
Because Get Air, LLC objects to the portion of the Report that recommends denying as moot Defendant’s Motion to Dismiss for lack of personal jurisdiction, the Court has conducted a de novo review of that portion of the Report and Recommendation. The defenses delineated in Rule 12(b) of the Federal Rules of Civil Procedure, including the defense of lack of personal jurisdiction, are asserted in response to a specific pleading. In the present case, Get Air, LLC argued against personal jurisdiction in its Motion to Dismiss Plaintiff’s SAC. Because the Motion to Dismiss was specifically “directed at Plaintiff’s Second Amended Complaint, ” (Doc. 55 at 1), the Motion is rendered moot by the Court’s decision to grant leave for Plaintiff to file a TAC.
In its Objections to the Report and Recommendation, Get Air, LLC argues that, “[w]hile amendment of the Complaint may arguably cure defects in Plaintiff’s pleadings against Get Air, LLC, changing the Complaint’s allegations does not establish facts necessary for this Court to exercise jurisdiction over Get Air, LLC.” (Doc. 73 at 3.) Get Air, LLC could have raised this argument in opposition to Plaintiff’s Motion to Amend, as the argument relates to whether amendment would be futile. However, as noted in the Report and Recommendation, Get Air, LLC did not raise the issue ...