United States District Court, D. Arizona
G. Campbell United States District Judge
Douglas Berman has filed a motion to dismiss Plaintiff's
claims against him for lack of personal jurisdiction pursuant
to Rule 12(b)(2) of the Federal Rules of Civil Procedure.
Doc. 29. The motion is fully briefed (Docs. 29, 31, 32), and
no party has requested oral argument. For the reasons set
forth below, the Court will grant Berman's motion.
Chad Carpenter sued Berman, All American Games, LLC
(“AAG”), and Does 1-30 for defamation, unpaid
wages, unjust enrichment, and breach of contract. Doc. 1.
Plaintiff was employed by AAG, a company operating football
camps throughout the United States, including Arizona. Doc.
20, ¶ 4. Berman is the Chairman of AAG and
Plaintiff's former boss. Doc. 29 at 2; Doc. 29-1 at 2.
Berman is a long-time resident of New Jersey and does not own
property in Arizona, nor has he done any business in or had
any personal contacts with Arizona. Doc. 29-1, ¶ 3.
a defendant moves to dismiss for lack of personal
jurisdiction, the plaintiff bears the burden of demonstrating
that the court has jurisdiction over the defendant.”
Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th
Cir. 2006). “Where, as here, the defendant's motion
is based on written materials rather than an evidentiary
hearing, the plaintiff need only make a prima facie showing
of jurisdictional facts to withstand the motion to
dismiss.” Mavrix Photo, Inc. v. Brand Techs.,
Inc., 647 F.3d 1218, 1223 (9th Cir. 2011). “The
plaintiff cannot ‘simply rest on the bare allegations
of its complaint, ' but uncontroverted allegations in the
complaint must be taken as true.” Id. (quoting
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d
797, 800 (9th Cir. 2004)). The Court may not assume the truth
of allegations in a pleading that are contradicted by an
affidavit, but factual disputes are resolved in
Plaintiff's favor. Id.
courts ordinarily follow state law in determining the bounds
of their jurisdiction over persons.” Walden v.
Fiore, 134 S.Ct. 1115, 1121 (2014) (citation omitted).
Arizona has authorized its courts to exercise jurisdiction to
the maximum extent permitted by the Due Process Clause of the
U.S. Constitution. See Ariz. R. Civ. P. 4.2(a).
Thus, courts in the District of Arizona may exercise
jurisdiction over a defendant who is not physically present
in Arizona if the defendant has minimum contacts with the
State, such that the suit can be maintained without offending
traditional notions of fair play and substantial justice.
Int'l Shoe Co. v. Washington, 326 U.S. 310, 316
Court may assert “general” personal jurisdiction
over a defendant whose activities in the forum State are
substantial or continuous and systematic, even if the
plaintiff's claims are unrelated to those activities.
See Haisten v. Grass Valley Med. Reimbursement Fund,
Ltd., 784 F.2d 1392, 1396 (9th Cir. 1986) (citing
Data Disc, Inc. v. Syst. Tech. Assoc., Inc., 557
F.2d 1289, 1287 (9th Cir. 1977)). Alternatively,
“specific” personal jurisdiction can be
established when the defendant purposely directed conduct at
the forum, the claim arises out of the defendant's
forum-related activities, and the exercise of jurisdiction
comports with fair play and substantial justice. Mavrix
Photo, 647 F.3d at 1227-28. The first requirement of
specific jurisdiction - purposeful direction - can be
satisfied when a defendant (1) commits an intentional act,
(2) expressly aimed at the forum, (3) which causes
foreseeable harm in the forum. Id. This test is
sometimes referred to as the “effects test.”
effects test does not “stand for the broad proposition
that a foreign act with foreseeable effects in the forum
state always gives rise to specific jurisdiction.”
Wash. Shoe Co. v. A-Z Sporting Goods Inc., 704 F.3d
668, 675 (9th Cir. 2012) (citation and quotation marks
omitted). Nor does the effects test mean that specific
jurisdiction may be based solely on a defendant's
knowledge that the subject of his tortious activity resides
in a particular State. See Walden, 134 S.Ct. at
1125. “The proper question is not where the plaintiff
experienced a particular injury or effect but whether the
defendant's conduct connects him to the forum in a
meaningful way.” Id.
does not argue that the Court has general personal
jurisdiction over Berman, nor could he, given that Berman
does not have substantial or continuous and systematic
contacts with Arizona. See Haisten, 784 F.2d at
1396. Accordingly, the Court will consider only whether it
has specific jurisdiction.
response to Berman's motion, Plaintiff addresses only his
defamation claim. Doc. 31 at 3-4. He makes no mention of
other claims in his complaint, and the complaint itself fails
to state whether Berman is a named Defendant in the other
claims. See Doc. 1 at 7-11. The Court therefore will
address only the defamation claim.
alleges that, after his termination from AAG, Berman and AAG
sent an email regarding his termination to over 200 employees
and outside affiliates. Doc.1, ¶ 13. Plaintiff argues
that the Court has specific personal jurisdiction over Berman
because, by this email, Berman “engaged in meaningful
contacts in Arizona in connection with [his] defamation of
Plaintiff[, ] with knowledge that his acts would result in
Plaintiff suffering significant injury in Arizona, where
Plaintiff is a resident[.]” Doc. 31 at 2. Plaintiff
argues that the alleged harm was foreseeable because of
Plaintiff's professional contacts in Arizona and because
of a “cease and desist” letter that Plaintiff
allegedly sent to Berman informing him that his conduct was
causing harm in Arizona. Id. at 4-5.
asserts that the email was received by some individuals in
Arizona, but this allegation is not contained in
Plaintiff's complaint (Doc. 1, ¶¶ 13-14) and
Plaintiff submits no evidence with his motion to support it
(Doc. 31 at 4). Plaintiff's argument instead focuses
primarily on the effect of Berman's conduct in Arizona.
But effects in a forum State, even if foreseeable, are not
sufficient for specific personal jurisdiction without some
defendant-initiated contact with the State. As this Court has
previously held, specific jurisdiction cannot be based
“solely on a defendant's knowledge that the subject
of his tortious activity resides in a particular
state.” Wake Up & Ball LLC v. Sony Music
Entm't Inc., 119 F.Supp.3d 944, 948 (D. Ariz. 2015).
The connection to Arizona “must arise out of contacts
that the ‘defendant himself' creates with the forum
State. . . . We have consistently ...