THERMOLIFE v. CONNORS

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE THERMOLIFE INTERNATIONAL, LLC, an Arizona limited liability company; RON KRAMER, an Arizona resident, ) ) ) ) ) Plaintiffs/Appellants, ) ) v. ) ) ANTHONY CONNORS aka ANTHONY ) ROBERTS and JANE DOE CONNORS, ) ) Defendants/Appellees. ) __________________________________) 1 CA-CV 11-0807 DIVISION ONE FILED: 11/27/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2011-051273 The Honorable Linda H. Miles, Judge AFFIRMED Kercsmar & Feltus PLLC by Gregory B. Collins Eric B. Hull William T. Luzader Attorneys for Plaintiffs/Appellants Scottsdale Broening Oberg Woods & Wilson, P.C. by Richard E. Chambliss Brian W. Purcell Attorneys for Defendants/Appellees Phoenix P O R T L E Y, Judge ¶1 We are asked to decide whether the trial court erred when it dismissed the lawsuit filed by Ron Kramer, an Arizona resident, and ThermoLife International, LLC, an Arizona limited liability corporation (collectively Kramer/TL ), against Anthony Connors ( Connors ) for publishing allegedly defamatory statements using the internet interfering with business and allegedly tortiously For following relationships. the reasons, we affirm. FACTUAL AND PROCEDURAL BACKGROUND ¶2 Kramer/TL sued Connors, a New Jersey resident who operates anthonyroberts.info, a website dedicated to reporting news about steroids and nutritional supplements. amended complaint defamatory alleges articles on that his Connors website The verified posted about allegedly Kramer and/or ThermoLife from 2008 to 2010, which caused them damage. The complaint also sought damages for tortious interference with a business relationship ThermoLife s customers because by Connors registered mail allegedly and contacted conveyed false information about one of its patents. ¶3 Connors filed a special appearance and moved to dismiss for lack of personal jurisdiction pursuant to Arizona Rule of Civil Procedure ( Rule ) 12(b)(2). After briefing, the court granted the motion and dismissed the complaint. 2 DISCUSSION I ¶4 Kramer/TL argues that the trial court erred by dismissing their complaint for lack of personal jurisdiction. They contend that the United States Supreme Court s decision in Calder v. Jones, 465 U.S. 783 (1984), requires that the court exercise jurisdiction. A ¶5 We review the ruling de novo and generally examine whether the non-moving party [made] a prima facie showing of jurisdiction. 892 P.2d A. Uberti & C. v. Leonardo, 181 Ariz. 565, 569, 1354, 1358 (1995) (quoting Barone v. Rich Bros. Interstate Display Fireworks Co., 25 F.3d 610, 611 (8th Cir. 1994)) (internal quotation marks omitted). We look only to the pleading and consider the well-pled factual allegations, Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7, 189 P.3d 344, 346 (2008), construing the facts alleged in the complaint . . . in a light most favorable to the plaintiff. Goddard v. Fields, 214 Ariz. 175, 177, ¶ 6, 150 P.3d 262, 264 (App. 2007) (quoting Douglas v. Governing Bd. of the Window Rock Sch. Dist. No. 8, 206 Ariz. 344, 346, (internal quotation evaluate a statements ¶ marks complaint s are 4, 78 P.2d omitted). well-pled insufficient if 3 the 1065, 1067 (App. Moreover, facts, because mere complaint 2003)) does we conclusory not also contain supporting factual allegations. 419, ¶ 7, 189 P.3d at 346. Cullen, 218 Ariz. at Similarly, we will not speculate about hypothetical facts that might entitle the plaintiff to relief. Id. at 420, ¶ 14, 189 P.3d at 347. B ¶6 Kramer/TL concedes that Arizona does not have general jurisdiction over Connors. As a result, we have to determine whether a superior court may exercise specific jurisdiction over a particular claim against Connors. See Planning Grp. of Scottsdale, L.L.C. v. Lake Mathews Mineral Props., Ltd., 226 Ariz. 262, 265, ¶ 13, 246 P.3d 343, 346 (2011). Specific jurisdiction may be exercised over a nonresident defendant who has sufficient contacts with the state to make the exercise of jurisdiction reasonable and just with respect to that claim. Id. (citing Int l Shoe Co. v. Washington, 326 U.S. 310, 320 (1945) (internal quotation marks omitted)); Austin v. Crystaltech Web Hosting, 211 Ariz. 569, 574, ¶ 18, 125 P.3d 389, 394 (App. 2005). Mindful of the admonition that jurisdictional contacts are to be analyzed not in isolation, but rather in totality, Planning Grp., 226 Ariz. at 269, ¶ 29, 246 P.3d at 350 (citing Burger King v. Rudzewicz, 471 U.S. 462, 482 (1985)), we examine all the circumstances surrounding the relationship between the parties to determine whether Connors purposefully 4 directed his conduct to Arizona. Id. at ¶¶ 31-32, 246 P.3d at 350. ¶7 In examining whether California defendants who never set foot in Arizona could be sued here for contract and tort claims, our supreme court, in Planning Group, posed the question of whether the aggregate of the defendants contacts with this state makes it fair and reasonable to hale them into court here with respect to claims arising out of those contacts. 268, ¶ 25, 246 P.3d at 349. Supreme Court s jurisprudence Id. at The court then stated that the embod[ies] a holistic approach which in the end poses a single . . . question: Considering all of the contacts between the defendants and the forum state, did those defendants engage in purposeful conduct for which they could reasonably expect to be haled into that state s court with respect to that conduct? Id. As a result, the court determined that the totality of the e-mails, faxes and letters directed to the Arizona plaintiffs seeking to persuade them to invest in a California mining venture was sufficient to exercise personal jurisdiction over the California defendants engaged in the communication. Id. at 269-71, ¶¶ 28, 30-32, 34-36, 39, 40-41, 246 P.3d at 350-52. ¶8 was Although our supreme court found that a holistic look appropriate residents to in light assert of the jurisdiction 5 communications over with certain Arizona California defendants, the court also found that, if a complaint alleged only tort claims, appropriate. the purposeful direction Id. at 268, ¶ 23, 246 P.3d at 349. analysis is The analysis requires courts to examine the location of the effects of a defendant s conduct in determining whether Arizona was the focal point of the alleged wrongdoing. Id.; see also Cohen v. Barnard, Vogler & Co., 199 Ariz. 16, 19, ¶ 14, 13 P.3d 758, 761 (App. 2000) (explaining that Arizona was not the focal point of the defendant s wrongdoing, so jurisdiction would be improper). ¶9 Planning Group is consistent with Calder. There, a reporter and the editor of the National Enquirer decided to do a story on Shirley Jones. 1 465 U.S. at 785. The reporter, who was a Florida resident, traveled to California on business, called his sources in California, and called Ms. Jones and her husband before publication to get their comments. the story was published, the editor Id. at 785-86. declined to After print a retraction and sought to quash the service of process from the California courts. Id. at 786. The trial court denied the motion, and the California Court of Appeals reversed on the theory that petitioners intended to, and did, cause tortious injury to [Ms. Jones] in California. Id. at 787. After the California Supreme Court refused review, the editor and reporter 1 Ms. Jones was Mrs. Partridge on The Partridge Family from 1970-1974. See IMDB, http://www.imdb.com/name/nm0429250/ (last visited Oct. 16, 2012). 6 successfully sought review in the United State Supreme Court. Id. at 787-88. ¶10 The Supreme Court unanimously determined that the appellate court properly focused on the relationship among the defendant, the forum, and the litigation. Id. at 788 (internal quotation marks omitted) (citing Shaffer v. Heitner, 433 U.S. 186, 204 (1977)). libelous story The Court then found that the allegedly concerned the California activities of a California resident[,] [i]t impugned the professionalism of an entertainer whose television career was centered in California[,] [t]he article was drawn from California sources, and the brunt of the harm . . . was suffered in California. Id. at 788-89. [j]urisdiction As over a result, the petitioners Court is concluded therefore proper that in California based on the effects of their Florida conduct in California. ¶11 the Id. at 789. Here, Connors posted information on his website for whole e-mailed eventually world to Connors sued see. seeking in the Kramer a saw retraction, superior court. the articles. and Connors Although He was Kramer/TL alleged that jurisdiction was proper because Connors knowingly 7 directed his conduct at them in Arizona, 2 they did not allege that Connors knew that Kramer lived and worked here or that Arizona was ThermoLife s principal place of business. They did not allege that the internet postings identified that Kramer/TL were located in Arizona. was involved recognize in the allegedly They alleged that Connors said Kramer BALCO scandal, involved that Barry baseball Bonds in fans will California. 3 Finally, they made no allegations that Connors came to Arizona for research; contacted Kramer, ThermoLife or anyone else in Arizona before posting his allegedly defamatory otherwise aimed his conduct at Arizona. articles; or See, e.g., Xcentric Ventures, LLC v. Bird, 683 F. Supp. 2d 1068, 1075 (D. Ariz. 2010) (holding that the plaintiffs did not meet their burden of proving that defamatory the defendants [internet] expressly article at aimed Arizona the allegedly because the [p]laintiffs . . . alleged no connection between the allegedly defamatory article and the forum other than that the article was about [p]laintiffs and [d]efendants knew [p]laintiffs resided in Arizona ). Consequently, Connors did not aim his allegedly defamatory articles towards Arizona. 2 The amended complaint alleged that Connors directed his conduct at Arizona. We cannot rely on a conclusory allegation. See Cullen, 218 Ariz. at 419, ¶ 7, 189 P.3d at 346. 3 Connors submitted an affidavit that admitted that he contacted two people by telephone in California. 8 C ¶12 We turn to whether Kramer/TL has sufficiently alleged that Connors allegedly directed tortiously prospective his actions interfered business towards with Arizona ThermoLife s relationships. Kramer/TL when he current or argued that Tamburo v. Dworkin, 601 F.3d 693 (7th Cir. 2010), and Baldwin v. Fischer-Smith, 315 S.W.3d 389 (Mo. App. 2010), support their argument that Connors directed his activities towards them in Arizona. ¶13 In Tamburo, the plaintiff operated a dog-breeding software business and developed a dog pedigree software program by lifting data from the defendants website. at 697. Tamburo, 601 F.3d Despite the plaintiff s claim that the information was in the public domain, the defendants retaliated by blast e-mails as well as postings on their websites accusing him of stealing their data and urging dog enthusiasts to boycott his products actions that the plaintiff believed tortiously interfered with his business. were Id. defamatory and The trial court dismissed the case against all defendants because they lived outside of Illinois or the United States. ¶14 The Seventh intentional torts. the court found Id. that Circuit reversed Id. the dismissal for the After analyzing Calder and its progeny, the case involved both a forum-state injury and tortious conduct specifically directed at the forum, 9 making the forum state the focal point of the tort[.] 706. Id. at Specifically, the court found that the defendants, whether in their blast emails or on their websites, encouraged readers to boycott address [the was plaintiff] s supplied and products, readers were that urged his to Illinois contact and harass him, that the defendants knew he lived in and conducted his business in Illinois, and that one defendant emailed the plaintiff, accusing him of theft and threatening to expose Tamburo to the online dog-pedigree community if he did not remove the stolen information. found that the defendants Id. As a result, the court specifically aimed their tortious conduct at [the plaintiff] and his business in Illinois with the knowledge that he lived, worked, and would suffer the brunt of the injury personal there jurisdiction quotation marks unfairness if court. and the over allegations these omitted). the lawsuit suffice defendants. Moreover, proceeded in establish Id. (internal the court found the federal no district Id. at 709. ¶15 In Baldwin, the defendants were competitors plaintiffs kennel and dog-breeding business. 392. to They plaintiffs bought and a their website designed business entitled to of the 315 S.W.3d at malign and damage STOP-WHISPERING LANE KENNEL, which named the plaintiffs as owners and listed the kennel s location. Id. Plaintiffs sued, and the trial court 10 dismissed the complaint for lack of personal jurisdiction. Id. The Missouri appellate court reversed, relying on Calder and Tamburo, id. at 392-97, finding that the defendants specifically targeted Missouri in the website by complaining that Missouri was a puppy mill and that [c]ommercial dog breeders . . . relocate to Missouri to make their living off of dogs and puppy sales as there are few laws to force them to raise the animals in a clean, healthy environment. Id. at 398. And, before the court found that fair play and substantial justice would not be offended by forcing the defendants to defend in Missouri, it noted that if you pick a fight in Missouri, you can reasonably expect to settle it here. ¶16 could Although assert interference Tamburo specific with Id. and Baldwin personal business suggest that jurisdiction relationships, Arizona over ThermoLife the did not allege that Connors knew it was principally doing business in Arizona or allege that he provided their Arizona address others or told them to contact ThermoLife in Arizona. to Although Kramer/TL argued to the trial court that Connors knew or should have known of its principal place of business, our review of the amended complaint shows no such allegation. Consequently, the trial court did not err by dismissing the complaint. ¶17 Connors Because Kramer/TL purposefully did directed not his 11 specifically conduct allege towards that Arizona, Connors does not constitutionally Planning possess the exercise Grp., 226 minimum Ariz. at 270, necessary jurisdiction personal contacts over ¶ 37, 246 P.3d to him. at 351. Therefore, we need not examine whether substantial justice and fair play Connors. contacts would be violated by asserting jurisdiction over See, e.g., id. (stating that a finding of minimum with jurisdiction the forum state constitutional do[es] analysis ) not end (citing the personal Asahi Metal Indus. Co., Ltd. v. Superior Court, 480 U.S. 102, 114 (1987)). II. ¶18 Kramer/TL argue that the trial court should have allowed them to conduct additional discovery on the issue of jurisdiction. The court did not directly deny the request, but tacitly denied it by granting the Rule 12(b) motion. We review the trial court s ruling for an abuse of discretion. Cohen, 199 Ariz. at 21, ¶ 24, 13 P.3d at 763. ¶19 In their response to Connors s motion to dismiss the complaint for lack of personal jurisdiction, Kramer/TL requested the opportunity to conduct additional jurisdictional discovery. Kramer/TL hoped that the discovery would allow them to demonstrate that Connors directed his attacks at them in Arizona and suggested that additional discovery might reveal that Connors used or had used a server located in Arizona to host his website. They also suggested that discovery might allow them to 12 demonstrate that Connors was paid by ThermoLife s competitors to cause harm to Kramer and ThermoLife. ¶20 Although response to Kramer Connors s submitted motion, we a declaration presume that with the his court considered it and decided that the additional discovery was a fishing expedition in the hopes that some reason would appear to allow Arizona to exercise jurisdiction. Accordingly, we find no abuse of discretion. CONCLUSION ¶21 Based on the foregoing, we affirm the ruling on the Rule 12(b) motion and the denial of discovery. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ________________________________ PATRICIA A. OROZCO, Judge /s/ ________________________________ RANDALL M. HOWE, Judge 13

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