United States District Court, D. Arizona
Dan L. Boger, Plaintiff,
General Automobile Insurance Services Incorporated, et al., Defendants.
MURRAY ENOW CHIEF UNITED STATES DISTRICT JUDGE
before the Court is Defendant The General Automobile
Insurance Services Incorporated (“The
General”)'s Motion to Dismiss The General
Automobile Insurance Services, Inc. for Lack of Personal
Jurisdiction (Doc. 18). The Motion is granted.
facts as alleged in the complaint are as follows. Plaintiff
Dan Boger (“Plaintiff”), a resident of Maryland,
alleges that on June 21, 2019, he received a telemarketing
call on his cell phone from Defendant Spanish Quotes, Inc.
(“Spanish Quotes”), an Arizona corporation with
its principal place of business in Phoenix, AZ. Plaintiff
alleges that the call was placed using an automatic telephone
dialing system to Plaintiff's cell phone number, which is
registered on the National Do Not Call Registry, and that
Plaintiff spoke with a “Shawn Jr.” from “US
Auto Care, ” who solicited insurance services.
Plaintiff further alleges that the call was eventually
transferred to “Elise” at The General, a
California corporation with its principal place of business
in Tennessee, who provided Plaintiff with a call back number
matching The General's corporate office. Based on this
phone call, Plaintiff filed a class action complaint (Doc. 1)
on September 5, 2019, alleging that The General and Spanish
Quotes had entered into an agreement to direct automated
telemarketing calls to him and other class members without
their prior express written consent in violation of the
Telephone Consumer Protection Act (“TCPA”), 47
U.S.C. § 227. This motion followed.
federal court sitting in diversity “applies the
personal jurisdiction rules of the forum state provided the
exercise of jurisdiction comports with due process.”
Scott v. Breeland, 792 F.2d 925, 927 (9th Cir.
1986). The Arizona long arm statute is co-extensive with the
limits of federal due process. See Doe v. Am. Nat'l
Red Cross, 112 F.3d 1048, 1050 (9th Cir. 1997) (citing
Batton v. Tenn. Farmers Mut. Ins. Co., 153 Ariz.
268, 270, 736 P.2d 2, 4 (1987)); see also Ariz. R.
Civ. P. 4.2(a). “Due process requires that nonresident
defendants have certain minimum contacts with the forum
state, so that the exercise of personal jurisdiction does not
offend traditional notions of fair play and substantial
justice.” Doe, 112 F.3d at 1050 (citing
Int'l Shoe Co. v. Wash., 326 U.S. 310, 316
are two types of personal jurisdiction-general and specific.
See Daimler AG v. Bauman, 571 U.S 117, 126-27
(2014). Plaintiff does not argue that The General is subject
to general personal jurisdiction in Arizona; thus, only
specific personal jurisdiction need be considered. Courts can
exercise specific personal jurisdiction when: (1) the
defendant purposefully directed its activities or consummated
some transaction with the forum or a resident of the forum,
or performed some act by which it purposefully availed itself
of the privileges of conducting activities in the forum; (2)
the claim arises out of or relates to the defendant's
forum-related activities; and (3) the exercise of
jurisdiction is reasonable. Harris Rutsky & Co. v.
Bell & Clements Ltd., 328 F.3d 1122, 1129 (9th Cir.
2003). On a motion to dismiss for lack of personal
jurisdiction brought pursuant to Fed.R.Civ.P. 12(b)(2), the
plaintiff bears the burden of demonstrating that the
court's exercise of jurisdiction is proper.
CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d
1066, 1073 (9th Cir. 2011). However, where, as here, the
district court decides a motion to dismiss for lack of
personal jurisdiction without an evidentiary hearing, the
plaintiff need only make a prima facie showing of the
jurisdictional facts. Uncontroverted allegations in the
plaintiff's complaint must be taken as true, and
conflicts between the parties over statements contained in
affidavits must be resolved in the plaintiff's favor.
Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir.
determining whether a defendant purposefully established
minimum contacts within a forum in the context of a
contractual relationship, courts consider “prior
negotiations and contemplated future consequences, along with
the terms of the contract and the parties' actual course
of dealing.” Burger King Corp. v. Rudzewicz,
471 U.S. 462, 482 (1985). A “contract with an
out-of-state party alone can[not] . . . establish sufficient
minimum contacts in the other party's home forum”;
however, if the contract demonstrates that a defendant
contemplated a long-term interdependent relationship in the
forum state, the defendant cannot argue that its relationship
to that state is “random, ” “fortuitous,
” or “attenuated.” Id. at 479. For
example, in Burger King, Burger King, a Florida
corporation, brought an action in Florida federal district
court when Rudzewicz, a Burger King franchise owner, refused
a termination order and continued to operate a Burger King
restaurant in Michigan. Id. at 482. The
court found that although Rudzewicz did not maintain offices
in or ever visit Florida, the franchise dispute grew directly
out of “a contract which had a substantial connection
with [Florida]” because Rudzewicz deliberately
“reach[ed] out beyond” Michigan and
“entered into a carefully structured 20-year
relationship that envisioned continuing and wide-reaching
contacts with Burger King in Florida.” Id. at
479-480. Consequently, the court held that the Florida
district court's exercise of jurisdiction did not offend
The General's contract with Spanish Quotes
“mandates the application of the law and courts of
Tennessee, not Arizona, ” (Doc. 25 at 5n2), and The
General “did not enter into any agreements with
[Spanish Quotes] in Arizona, ” (Doc. 18-1 at 2).
Plaintiff has not alleged any facts in his Complaint or in
his Opposition to suggest that The General's “prior
negotiations, ” “contemplated future
consequences, ” “terms of the contract, ”
or “actual course of dealing” with Spanish Quotes
might establish minimum contacts with Arizona. Burger
King, 471 U.S. at 479.
Calder v. Jones, 465 U.S. 783 (1984), a California
actress brought a libel suit in California state court
against a reporter and an editor who worked for the National
Enquirer at its headquarters in Florida. The plaintiff's
libel claims were “based on an article written and
edited by the defendants in Florida in the National Enquirer,
a national weekly newspaper with a California circulation of
roughly 600, 000.” Walden v. Fiore, 571 U.S.
277, 286 (2014). The Supreme Court found the forum contacts
in that case to be “ample” because,
The defendants relied on phone calls to “California
sources” for the information in their article; they
wrote the story about the plaintiff's activities in
California; they caused reputational injury in California by
writing an allegedly libelous article that was widely
circulated in the State; and the “brunt” of that
injury was suffered by the plaintiff in that State. . . .
However scandalous a newspaper article might be, it can lead
to a loss of reputation only if communicated to (and read and
understood by) third persons. . . . Accordingly, the
reputational injury caused by the defendants' story would
not have occurred but for the fact that the defendants wrote
an article in California that was read by a large number of
California citizens. Indeed, because publication to third
persons is a necessary element of libel . . . the
defendants' intentional tort actually occurred in
California.... In this way, the “effects” caused
by the defendants' article-i.e., the injury to the
plaintiff's reputation in the estimation of the
California public-connected the defendants' conduct to
California, not just to a plaintiff who lived there. That
connection, combined with the various facts that gave the
article a California focus, sufficed to authorize the
California court's exercise of jurisdiction.
Id. at 286-88. Unlike in Calder, the injury
The General allegedly caused did not occur in Arizona; nor
were events that occurred in Arizona a but-for cause of
Plaintiff s injury. The effects of The General's actions
as alleged in Plaintiffs complaint do not connect The General
to Arizona ...