United States District Court, D. Arizona
J. Markovich, United States Migistrate Judge.
before the Court is Get Air, LLC’s Motion to Dismiss,
which alleges that that this Court lacks personal
jurisdiction because Get Air, LLC has not engaged in any
business in Arizona, and because there are no facts
supporting general or specific personal jurisdiction. (Doc.
97). Specifically, Get Air, LLC argues that the Employee
Handbook, upon which Plaintiff relies to establish specific
personal jurisdiction, was created by Amy Iverson (an
independent contractor for former defendant Trampoline Parks,
LLC) and distributed to Get Air Tucson by Trampoline Parks,
LLC. Id. at 7. In his response, Plaintiff contends
that he has made a prima facie showing that the defective
Employee Handbook used by Get Air Tucson was created and
supplied by Get Air, LLC and as such Get Air, LLC
purposefully directed its conduct at Arizona. (Doc. 102 at
14). Alternatively, Plaintiff argues that there remains a
factual dispute regarding personal jurisdiction which must be
resolved in his favor. Id. at 16.
motion has been fully briefed by the parties, and the Court
heard oral arguments on June 6, 2016. For the reasons stated
below, the Court will defer ruling on the Motion to Dismiss
to allow the parties to conduct further discovery regarding
whether Get Air, LLC’s jurisdictional contacts with
Arizona are sufficient to establish personal jurisdiction in
the District of Arizona.
party seeking to invoke the court’s jurisdiction bears
the burden of establishing that jurisdiction exists.”
Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986)
(citing Data Disc, Inc. v. Systems Tech. Assocs.,
557 F.2d 1280, 1285 (9th Cir. 1977)). Analysis of whether the
Court has specific jurisdiction over the nonresident
defendant requires a three-pronged test:
(1) The non-resident defendant must purposefully direct [its]
activities or consummate some transaction with the forum or
resident thereof; 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
comport with fair play and substantial justice, i.e. it must
Schwarzenegger, 374 F.3d at 802 (quoting Lake v.
Lake, 817 F.2d 1416, 1421 (9th Cir.
1987)). “The plaintiff bears the burden of
satisfying the first two prongs two of the test.”
Id. (citation omitted). For tort claims,
the court most often utilizes a “purposeful direction
analysis.” Id. This analysis involves evidence
that the defendant’s actions outside the forum state
are directed at the forum, such as distribution in the forum
state of goods originating elsewhere. Id. at 803
a defendant moves to dismiss for lack of personal
jurisdiction, the plaintiff is ‘obligated to come
forward with facts, by affidavit or otherwise, supporting
personal jurisdiction.’” Id. (quoting
Amba Marketing Sys., Inc. v. Jobar Int’l,
Inc., 551 F.2d 784, 787 (9th Cir. 1977)); see also
Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir.
2006). “If the district court decides the motion
without an evidentiary hearing . . . ‘then the
plaintiff need only make a prima facie showing of the
jurisdictional facts.’” Boschetto v.
Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008) (quoting
Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir.
1990). “Uncontroverted allegations in the
plaintiff’s complaint must be taken as true” and
“‘[c]onflicts between the parties over statements
contained in affidavits must be resolved in the
plaintiff’s favor.’” Id. (quoting
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d
797, 800 (9th Cir. 2004)). However, “[t]he mere
allegations of a complaint, when contradicted by affidavits,
are not enough to confer personal jurisdiction over a
nonresident defendant.” Chem Lab Products, Inc. v.
Stepanek, 554 F.2d 371, 372 (9th Cir. 1977) (citing
Taylor v. Portland Paramount Corp., 383 F.2d 634,
639 (9th Cir. 1967)).
court may permit discovery to aid in determining whether it
has in personam jurisdiction.” Data Disc, 557
F.2d at 1285 n. 1 (citing Wells Fargo & Co. v. Wells
Fargo Express Co., 556 F.2d 406, 430 n. 24 (9th Cir.
1977)). “‘[W]here a plaintiff’s claim of
personal jurisdiction appears to be both attenuated and based
on bare allegations in the face of specific denials made by
the defendants, the Court need not permit even limited
discovery . . .’” Terracom v. Valley
Nat. Bank, 49 F.3d 555, 562 (9th Cir. 1995) (quoting
Rich v. KIS Cal., Inc., 121 F.R.D. 254, 259 (M.D.
N.C. 1988)). However, “[d]iscovery may be appropriately
granted where pertinent facts bearing on the question of
jurisdiction are controverted or where a more satisfactory
showing of the facts is necessary.” Data Disc,
557 F.2d at 1285 n. 1.
Air, LLC contends that this Court lacks personal jurisdiction
under Fed.R.Civ.P. 12(b)(2) because Get Air, LLC is a Utah
limited liability corporation company whose only business
prior to February, 2016 was the operation of a trampoline
park (Get Air Roy) in Roy, Utah. (Doc. 97 at 6). Get Air, LLC
states that “[g]enerally, it has conducted no business
in Arizona and, specifically, it was not involved in the
design, construction or operation of the Get Air Tucson
trampoline park in any way.” Id. Get Air, LLC
further argues that the Employee Handbook Plaintiff relies on
to establish specific personal jurisdiction was not created
by any agent of Get Air, LLC and that Get Air, LLC had no
knowledge or intention that the Employee Handbook was
supplied to Get Air Tucson. Id. at 7.
first motion to dismiss, Get Air, LLC included affidavits
from Val Iverson and Jacob Goodell stating that the Get Air,
LLC Employee Handbook was created by Get Air, LLC through its
manager Jessica Bybee and used at Get Air Tucson. (Doc. 43 at
13 ¶11 and at 40 ¶11); (Doc. 102 at 9, n. 3). Get
Air, LLC stated that: “[a]lthough there is evidence
that the operators of the Get Air Tucson trampoline park
adopted and used Get Air Roy’s employee manual as the
Get Air Tucson employee manual, there is no evidence that any
member of Get Air, LLC knew or intended Get Air Tucson would
use its employee manual as Get Air Tucson’s employee
manual.” (Doc. 43 at 5).
present Motion to Dismiss, Get Air, LLC argues that it did
not create the Employee Handbook upon which Plaintiff relies
to establish specific jurisdiction. (Doc. 97 at 7). In Val
Iverson’s new affidavit, he states that “[d]uring
[Jessica Bybee’s] employment with Get Air, LLC at Get
Air Roy, Ms. Bybee’s responsibilities . . . would have
included use of the Get Air, LLC Employee Handbook [allegedly
created by Amy Iverson].” (Doc. 97 at 13 ¶16).
Jacob Goodell’s most recent affidavit states that
“[i]n her capacity as manager of Get Air Roy, Jessica
Bybee prepared the original Get Air Roy employee handbook and
used the Get Air, LLC Employee Handbook.” (Doc. 97 at
Air, LLC has also produced an affidavit from Amy Iverson, who
claims she was an independent contractor for Trampoline
Parks, LLC and served as its Director of Human Resources from
autumn 2012-autumn 2013. (Doc. 97-1, at 2 ¶3). Ms.
Iverson states that in her capacity as Director of Human
Resources for Trampoline Parks she “developed a generic
Employee Handbook that could be used at any ...