United States District Court, D. Arizona
ORDER
Douglas L. Rayes United States District Judge
Plaintiff
Alison Hatheway accuses Defendants Bank of New York Mellon
(“BNYM”) and its Chief Executive Officer, Charles
Scharf, of violating the Fair Debt Collection Practices Act
(“FDCPA”) by failing to respond to her requests
for debt validation and suing her in Connecticut State Court
“for relief of debt by vestment of title” to her
Connecticut property. (Doc. 1 at 2-3.) Before the Court is
Defendants' motion to dismiss for lack of subject matter
jurisdiction, lack of personal jurisdiction, and improper
venue under Federal Rules of Civil Procedure 12(b)(1)-(3).
(Doc. 11.) The motion is fully briefed and neither party
requested oral argument. The Court concludes that it lacks
personal jurisdiction over Defendants and therefore will
grant the motion to dismiss.[1]
I.
Discussion
Under
Rule 12(b)(2), a party may move to dismiss claims against it
for lack of personal jurisdiction. In opposing a
defendant's motion to dismiss for lack of personal
jurisdiction, the plaintiff bears the burden of establishing
jurisdiction is proper. Picot v. Weston, 780 F.3d
1206, 1211 (9th Cir. 2015). “Where, as here, a
defendant's motion to dismiss is based on a written
record and no evidentiary hearing is held, the plaintiff need
only make a prima facie showing of jurisdictional
facts.” Id. (internal quotation and citation
omitted). Although a plaintiff cannot “simply rest on
the bare allegations of its complaint, ” Amba Mktg.
Sys., Inc. v. Jobar Int'l, Inc., 551 F.2d 784, 787
(9th Cir. 1977), uncontroverted allegations in the complaint
must be taken as true and any conflicts between parties over
statements contained in affidavits must be resolved in the
plaintiff's favor, Schwarzenegger v. Fred Martin
Motor Co., 374 F.3d 797, 800 (9th Cir. 2004).
“Where,
as here, there is no applicable federal statute governing
personal jurisdiction, the district court applies the law of
the state in which the district court sits.”
Id. at 800. Arizona's long-arm statute allows
Arizona courts to exercise personal jurisdiction to the
maximum extent permitted under the Due Process Clause of the
United States Constitution. See Ariz. R. Civ. P.
4.2(a); A. Uberti and C. v. Leonardo, 892 P.2d 1354,
1358 (Ariz. 1995). Due process requires that the defendant
“have certain minimum contacts” with the forum
state “such that the maintenance of the suit does not
offend traditional notions of fair play and substantial
justice.” Int'l Shoe Co. v. State of Wash.,
Office of Unemployment Compensation and Placement, 326
U.S. 310, 316 (1945) (internal quotations and citation
omitted). “Depending on the strength of those contacts,
there are two forms that personal jurisdiction may take:
general and specific.” Picot, 780 F.3d at
1211. Defendants contend that both general and specific
jurisdiction are lacking. The Court agrees.
A.
General
General
jurisdiction “requires affiliations so continuous and
systematic as to render the foreign corporation essentially
at home in the forum State, i.e., comparable to a domestic
enterprise in that State.” Daimler AG v.
Bauman, 571 U.S. 117, 133 n. 11 (2014) (internal
quotation marks, brackets, and citation omitted). This
standard is demanding; “only in an ‘exceptional
case' will general jurisdiction be available
anywhere” other than the “corporation's place
of incorporation and principal place of business.”
Martinez v. Aero Carribbean, 764 F.3d 1062, 1070
(9th Cir. 2014) (quoting Daimler AG, 571 U.S. at 139
n.19).
In
applying this standard to an international bank, the Ninth
Circuit found that California lacked general personal
jurisdiction over a bank that merely had a branch in the
state but was neither incorporated nor had its principal
place of business there. AM Trust v. UBS AG, 681
Fed. App'x 587, 588 (9th Cir. 2017). Similarly, BNYM is
neither incorporated nor has its principle place of business
in Arizona. (Doc. 11-1 ¶ 5.) Moreover, unlike the bank
defendant in AM Trust, BNYM does not operate a
branch in Arizona. (¶ 6); see AM Trust, 681
Fed. App'x at 588. Plaintiff has not made the requisite
showing that this is an exceptional case permitting general
personal jurisdiction over BNYM. Nor has Plaintiff
established general jurisdiction over Scharf. (See,
e.g., Doc. 1 at 2 (Scharf maintains his “principal
place of business in New York, New York.”).)
B.
Specific
Specific
jurisdiction is analyzed under a three-pronged test:
“(1) [t]he non-resident defendant must purposefully
direct his activities or consummate some transaction with the
forum or resident thereof; or perform some act by which he
purposefully avails himself 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 be
reasonable.” Mavrix Photo, Inc. v. Brand Tech.,
Inc., 647 F.3d 1218, 1227-28 (9th Cir. 2011) (emphasis
in original). “The plaintiff bears the burden of
satisfying the first two prongs of the test. If the plaintiff
fails to satisfy either of these prongs, personal
jurisdiction is not established in the forum state.”
Schwarzenegger, 374 F.3d at 800.
Courts
use a three-element test determine whether the non-resident
defendant purposely directed activities at the forum.
Purposeful direction requires the defendant to have
“(1) committed an intentional act, (2) expressly aimed
at the forum state, (3) causing harm that the defendant knows
is likely to be suffered in the forum state.”
Morrill v. Scott Financial Corp., 873 F.3d 1136,
1142 (9th Cir. 2017). “[R]andom, fortuitous, or
attenuated contacts are insufficient to create the requisite
connection with the forum.” Id. (internal
quotation marks and citation omitted).
Plaintiff's
complaint-which merely alleges that Defendants have
“business activity in Arizona”-does not plausibly
show any purposeful direction of relevant activities to
Arizona. (Doc. 1 at 2.) As alleged, the entirety of
Defendants' conduct involves Connecticut property,
Connecticut courts, and Connecticut land records. There is
not a single allegation of conduct aimed at Arizona in the
complaint. Nor does Plaintiff “come forward with facts,
by affidavit or otherwise, supporting personal
jurisdiction.” Scott v. Breeland, 792 F.2d
925, 927 (9th Cir. 1986) (quotation marks and citations
omitted). The Court therefore lacks specific personal
jurisdiction over Defendants.
II.
Conclusion
For
these reasons, the Court lacks personal jurisdiction over
Defendants. Although Federal Rule of Civil Procedure 15(a)(2)
requires the Court to “freely give leave when justice
so requires, ” leave need not be granted “where
the amendment of the complaint . . . constitutes an exercise
in futility[.]” Ascon Props., Inc. v. Mobil Oil
Co., 866 F.2d 1149, 1160 (9th Cir. 1989). Here,
Plaintiff does not ask for leave to amend her complaint. Nor
does it appear that there are facts Plaintiff could allege,
supported, by evidence, that would permit the Court to
exercise personal jurisdiction over Defendants given the
nature of the allegations in this case. ...