United States District Court, D. Arizona
R. Prasad Industries, Plaintiff,
Flat Irons Environmental Solutions Corporation, et al., Defendants.
A. TEILBWG SENIOR UNITED STATES DISTRICT JUDGE
before the Court is Defendants' Motion for Leave to File
a Motion to Dismiss for Lack of Personal Jurisdiction or in
the Alternative, Request to Transfer the Case to the Central
District of California (“Motion for Leave”) (Doc.
213). The Court now rules on the motion.
August 6, 2017, Defendant Robert Carlile and his spouse
(collectively “Carlile”) requested leave of the
Court to file a Motion to Dismiss for Lack of Personal
Jurisdiction. (Doc. 213; Doc. 214). Plaintiff submitted its
Response in Opposition (Doc. 217) on August 7, 2017 and
Defendants submitted their Reply (Doc. 219) on August 11,
case arose from “an alleged agreement for the purchase
and sale of urea fertilizer between Plaintiff, R. Prasad
Industries, a Guyanese company that sells and distributes
fertilizer, and Defendant Flat Irons Environmental Solutions
Corporation, an Arizona corporation owned and operated by
Defendants Gary Miller and Bob Carlile.” (Doc. 148 at 1
(footnote omitted)). The Court has previously discussed the
facts in this case at length and need not repeat them here.
(See id. at 1-4).
REQUEST FOR LEAVE OF THE COURT
motion comes over four years after the start of litigation in
this case and over three years after the deadline set by the
Court's Scheduling Order that “all dispositive
motions shall be filed no later than June 28, 2014.”
(Doc. 46 at 4). Defendants explain that “Defendants did
not file a motion contesting personal jurisdiction as to the
Carlile Defendants as the law on minimum contacts was not
certain at the time required to make such a motion.”
(Doc. 219 at 4).
argue that the United States Supreme Court decision in
Bristol-Myers Squibb Company v. Superior Court of
California, San Francisco County (hereafter
“Bristol-Myers Squibb”), decided June
19, 2017, “significantly alters the analysis”
regarding the exercise of personal jurisdiction over a
non-resident Defendant. (Doc. 213 at 2 (citing 137 S.Ct.
1773, 1776 (2017))). The Supreme Court, however, stated
therein that “[s]ettled principles of specific
jurisdiction control” the case. Bristol-Myers
Squibb, 137 S.Ct. at 1776. There, “[a] group of
plaintiffs-consisting of 86 California residents and 592
residents from 33 other States-filed eight separate
complaints in California Superior Court, alleging that
[Defendant's product] had damaged their health.”
Id. at 1778. This case is distinguishable on its
face from Bristol-Myers Squibb.
single plaintiff brought suit against Defendants in the forum
in which the corporate defendant-which the Court has already
granted summary judgment against (Doc. 148)-was incorporated
and maintained its principal place of business (See
Defendants' Answer, Doc. 35 at ¶¶ 2; see
also Doc. 148). Defendant Carlile was not only “a
director and shareholder of Defendant corporation, ”
but was also admittedly “listed as the president of the
company” (Compare Defendants' Answer, Doc.
35 at ¶¶ 5 with Doc. 217-1 at 3).
Elsewhere, Defendant Carlile held himself out as
“CEO” of the corporate defendant with an Arizona
address. (See Doc. 217-2). Holding one's self
out as an officer in an Arizona corporation is sufficient to
subject an individual to specific jurisdiction in Arizona for
torts allegedly committed in connection with the Arizona
corporation. See, e.g., Panavision Int'l,
L.P. v. Toeppen, 141 F.3d 1316, 1319-24 (9th Cir. 1998)
(holding that an Illinois resident operating over the
internet from Illinois was subject to specific jurisdiction
in California for registering a California company's
trademark and effectively acting as the California company
online). Nothing in Bristol-Myers Squibb alters this
the Supreme Court simply conducted a “straightforward
application in this case of settled principles of personal
jurisdiction[.]” Bristol-Myers Squibb, 137
S.Ct. at 1783. There, non-resident plaintiffs asked a court
to subject a non-resident corporation to personal
jurisdiction in California based on nationwide advertising
and distribution efforts. See id. at 1785. The
Supreme Court reiterated therein that there must be an
“affiliation between the forum and the underlying
controversy” beyond regularly conducting sales in and
operating within a given forum in order for a court to
exercise personal jurisdiction over a non-resident, corporate
defendant. Id. at 1781 (internal citation omitted).
Bristol-Myers Squibb did not address the issue of
whether an individual may be subject to personal jurisdiction
in a forum based on the individual's affiliation with a
resident corporation, as is at issue here. Accordingly,
Defendants' reliance on Bristol-Myers Squibb as
the basis for challenging personal jurisdiction at this late
juncture is misplaced and does not alter the Court's
jurisdictional analysis in this case.
the requirement of personal jurisdiction may be explicitly or
implicitly waived. See, e.g., Astronics Advanced
Elecs. Sys. Corp. v. Lufthansa Technik AG, 561 Fed.Appx.
605, 606 (9th Cir. 2014) (citing Ins. Corp. of Ireland,
Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694,
703 (1982)). “The defense of lack of personal
jurisdiction may be waived as a result of the course of
conduct pursued by a party during litigation.”
Peterson v. Highland Music, Inc., 140 F.3d 1313,
1318 (9th Cir. 1998), as amended on denial of reh'g
and reh'g en banc (June 15, 1998) (holding that a
party can waive personal jurisdiction by actively
participating in litigation). This rule applies even
“when the party raises the defense but does not pursue
it further” in a timely manner. Craters &
Freighters v. Benz, 465 Fed.Appx. 719 (9th Cir. 2012)
(citing Peterson, 140 F.3d at 1317-18).
Defendants set forth lack of personal jurisdiction as a
defense “as to the noncorporate and/or
non-Arizona-resident defendants” in Defendants'
Answer (Doc. 35 at 27) and again in Defendants' Second
Amended Answer (Doc. 87 at 11). Following these 2014 filings,
however, Defendant Carlile actively participated in this
litigation through dozens of motions and pleadings cited by
Plaintiff before filing the instant motion. (See
Doc. 217 at 2-3). Defendants concede that the instant motion
is untimely in attempting to justify why this motion was not
filed “at the time required to make such a
motion.” (Doc. 219 at 4). Accordingly, the Court finds
that Defendants waived the defense of lack of personal
jurisdiction by submitting to jurisdiction in this Court
based on their “course of conduct pursued” during
this matter. See Peterson, 140 F.3d at 1318.