Swartwood et al v. Fun-Tastic Shows Inc, No. 3:2017cv05971 - Document 107 (W.D. Wash. 2020)
Court Description: ORDER granting 104 Motion to Dismiss; Lawrence K. Sloan, Frazier Equipment LLC (an Arizona corporation) and Jane Doe Sloan (individually and as a marital community) are terminated. Signed by Judge Benjamin H. Settle. (MGC)
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Swartwood et al v. Fun-Tastic Shows Inc Doc. 107 Case 3:17-cv-05971-BHS Document 107 Filed 05/28/20 Page 1 of 7 1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 8 SUSAN SWARTWOOD, et al., Plaintiffs, 9 10 11 12 v. FRAZIER EQUIPMENT, LLC, an Arizona corporation, LAWRENCE K. SLOAN and JANE DOE SLOAN, individually and as a marital community, HIGH-LITE RIDES, INC., a South Carolina corporation, CASE NO. C17-5971 BHS ORDER GRANTING DEFENDANT’S SECOND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION 13 Defendants. 14 15 16 17 18 19 This matter comes before the Court on Defendants Frazier Equipment, LLC (“Frazier”), Lawrence K. Sloan (“Sloan”), and Jane Doe Sloan’s (collectively “Defendants”) second motion to dismiss for lack of personal jurisdiction. Dkt. 104. The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants the motion for the reasons stated herein. 20 21 22 ORDER - 1 Dockets.Justia.com Case 3:17-cv-05971-BHS Document 107 Filed 05/28/20 Page 2 of 7 1 2 I. PROCEDURAL HISTORY AND FACTUAL BACKGROUND On May 18, 2017, Plaintiffs Susan Swartwood, Crystal Groth, and minor M.G.S. 3 (“Plaintiffs”), attended Defendant Fun-Tastic Shows, Inc.’s (“Fun-Tastic”) 4 Rhododendron Festival in Port Townsend, Washington. Dkt. 98, 3.23–3.24. Plaintiffs 5 were riding together in one of the gondolas on the festival’s Ferris wheel when one of the 6 metallic locks attached to the gondola “ca[ught] on the [ride’s] super-structure and 7 eject[ed] the Plainitffs.” Id. 3.27. Plaintiffs all fell from the gondola and were injured. 8 Id. 3.30. 9 Plaintiffs allege that in 2010, Sloan as an agent of Frazier modified the Ferris 10 wheel by adding the metallic locks to the doors of each passenger gondola. Id. 3.21. 11 Frazier owned the Ferris wheel and sold it to Fun-Tastic in a transaction between Steven 12 Broetsky of Frazier and Ronald Burback (“Burback”) of Fun-Tastic, who is a 13 Washington resident. Id. 1 Plaintiffs also allege that “when sold to Fun-Tastic, [the Ferris 14 wheel] was intended to be used in Washington State.” Id. 3.16 15 On November 6, 2017, Plaintiffs filed a complaint against Fun-Tastic in the 16 Jefferson County Superior Court for the State of Washington. Dkt. 1-1. On November 21, 17 2017, Fun-Tastic removed the matter to this Court. Dkt. 1. On April 23, 2018, Plaintiffs 18 amended their complaint to add Defendant High-Lite Rides, Inc. Dkt. 15. On October 16, 19 2019, Plaintiffs settled their claims against Fun-Tastic. Dkt. 76. On November 4, 2019, 20 21 1 22 Defendants explain (and Plaintiffs do not dispute) that Steven Broetsky is the managing member of Frazier and Burback is the president of Fun-Tastic. Dkt. 104 at 3. ORDER - 2 Case 3:17-cv-05971-BHS Document 107 Filed 05/28/20 Page 3 of 7 1 Plaintiffs amended their complaint to add Defendants and allege claims for negligence 2 and product liability against Frazier. Dkt. 81, 5.1–5.2. 3 On December 3, 2019, Defendants moved to dismiss Plaintiffs’ claims for lack of 4 personal jurisdiction. Dkt. 90. On February 10, 2020, the Court granted the motion to 5 dismiss but granted Plaintiffs leave to amend. Dkt. 97. On February 19, 2020, Plaintiffs 6 filed a third amended complaint (“TAC”). Dkt. 98. 7 On March 3, 2020, Defendants filed a second motion to dismiss for lack of 8 personal jurisdiction. Dkt. 104. On March 17, 2020, Plaintiffs responded. Dkt. 105. On 9 March 26, 2020, Defendants replied. Dkt. 106. 10 11 12 II. DISCUSSION A. Standard To determine whether it has jurisdiction over a defendant, a federal court applies 13 the law of the state in which it sits, as long as that law is consistent with federal due 14 process. Daimler AG v. Bauman, 571 U.S. 117, 126 (2014). Washington grants courts the 15 maximum jurisdictional reach permitted by due process. Easter v. Am. W. Fin., 381 F.3d 16 948, 960 (9th Cir. 2004). Due process is satisfied when subjecting the entity to the court’s 17 power does not “offend ‘traditional notions of fair play and substantial justice.’” 18 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984) (quoting 19 Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). “[T]raditional notions of fair 20 play and substantial justice” require that a defendant have minimum contacts with the 21 forum state before it may be haled into a court in that forum. Int’l Shoe, 326 U.S. at 316 22 (1945). The extent of those contacts can result in either general or specific personal ORDER - 3 Case 3:17-cv-05971-BHS Document 107 Filed 05/28/20 Page 4 of 7 1 jurisdiction over the defendant. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 2 U.S. 915, 919 (2011). 3 B. Analysis 4 1. General Jurisdiction 5 The Court previously found no basis to conclude it has general jurisdiction over 6 the Defendants, Dkt. 97 at 4, and similarly finds that the allegations in the TAC do not 7 allege a basis for general jurisdiction. 8 2. Specific Jurisdiction 9 Specific jurisdiction permits a district court to exercise jurisdiction over a 10 nonresident defendant for conduct that “create[s] a substantial connection with the forum 11 State.” Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014). To prove that specific jurisdiction 12 exists in a tort-based action, a plaintiff must demonstrate that: (1) a defendant 13 purposefully directed its activities at the forum state, (2) the lawsuit arises out of or 14 relates to the defendant’s forum-related activities, and (3) the exercise of jurisdiction is 15 reasonable. Picot v. Weston, 780 F.3d 1206, 1211 (9th Cir. 2015). The plaintiff bears the 16 burden to satisfy the first two prongs of the test, and jurisdiction fails if they are not 17 established. Morrill v. Scott Financial Co., 873 F.3d 1136, 1142 (9th Cir. 2017) (citing 18 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004)). A 19 defendant purposefully directs its conduct toward a forum state when its actions are 20 intended to have an effect within the state. Schwarzenegger, 374 F.3d at 803. This occurs 21 in a tort-based action if the defendant: “(1) commit[s] an intentional act, (2) expressly 22 aimed at the forum state, (3) causing harm that the defendant knows is likely to be ORDER - 4 Case 3:17-cv-05971-BHS Document 107 Filed 05/28/20 Page 5 of 7 1 suffered in the forum state.” Morrill, 873 F.3d at 1142. In deciding specific jurisdiction, 2 the Court must “look[] to the defendant’s contacts with the forum State itself, not the 3 defendant’s contacts with persons who reside there.” Walden, 571 U.S. at 285. 4 The Court previously found Plaintiffs failed to establish the first necessary 5 element, purposeful direction, when they alleged that it was foreseeable to Frazier that its 6 product would end up in Washington based on Fun-Tastic’s relationship with 7 Washington. Dkt. 97 at 6. The Court found Plaintiffs had failed to establish that either the 8 sale or the gate modification was expressly aimed at Washington. Id. at 7 (citing Morill, 9 873 F.3d at 1142). 10 In their TAC, Plaintiffs provide additional allegations about Fun-Tastic’s business 11 relationship with Washington State. Plaintiffs describe Fun-Tastic’s business licensing 12 and reporting obligations to Washington as well as its history of substantial operations 13 and substantial employment of Washington residents, information it alleges was “readily 14 available to the public including Defendant Frazier.” Dkt. 98, 3.1–3.1.13, 3.12. 15 Plaintiffs also detail the extent of Fun-Tastic’s carnival operations in Washington 16 including at the Washington State Fair. See, e.g., id. 3.2–3.36. 17 Additionally, Plaintiffs allege that both Frazier and Fun-Tastic have “been 18 publicized in [Carnival] magazine prior to the sale of the Ferris wheel in question,” and 19 as noted, allege that Burback, a Washington resident, was a party to the sale of the Ferris 20 wheel. Id. 3.4, 3.21. 21 22 Plaintiffs emphasize that their claim should be analyzed under the tort-based “purposeful direction” standard. Dkt. 105 at 4. They argue that the public evidence Fun- ORDER - 5 Case 3:17-cv-05971-BHS Document 107 Filed 05/28/20 Page 6 of 7 1 Tastic operated in Washington demonstrates “that the moving Defendants were aware 2 they were transacting with a company that had regular, consistent and ongoing business 3 in Washington state for nearly a half-century.” Id. at 5. They also argue that “it was 4 understood the Ferris wheel itself was sold for the specific business purpose of operating 5 in Washington.” Id. 6 Plaintiffs’ additional allegations provide additional support for the argument that it 7 was foreseeable to Defendants that the Ferris Wheel would be used in Washington. 8 However, they do not change the Court’s conclusion that these allegations are insufficient 9 to support a finding that Defendants expressly aimed tortious action at Washington when 10 Frazier sold the Ferris wheel to Fun-Tastic. Plaintiffs do not allege that Frazier sought 11 Fun-Tastic out as a buyer for the Ferris wheel or advertised the Ferris wheel for sale in 12 Washington. While Burback purchased the Ferris wheel and is a Washington resident, the 13 record shows that Burback traveled to Phoenix, Arizona to see the Ferris wheel after 14 learning that it was for sale through a third party who dealt in used amusement rides and 15 purchased it on that trip. See Dkt. 95-1, Deposition of Ronald Burback, at 10, 27. 2 It is 16 insufficient “to rely on a defendant’s ‘random, fortuitous, or attenuated contacts’ [with 17 the forum] or on the ‘unilateral activity’ of a plaintiff” to find specific jurisdiction. 18 Walden, 571 U.S. at 286 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. at 475). The 19 contacts Plaintiffs describe with Washington are the unilateral activities of Fun-Tastic, 20 not contacts Frazier purposefully directed at Washington. Therefore, finding that 21 22 2 Deposition transcript page numbering. ORDER - 6 Case 3:17-cv-05971-BHS Document 107 Filed 05/28/20 Page 7 of 7 1 Plaintiffs have failed to establish purposeful direction, an essential element of specific 2 jurisdiction, Morrill, 873 F.3d at 1142, the Court grants the motion to dismiss for lack of 3 personal jurisdiction. 4 C. 5 Leave to Amend “The trial court’s discretion to deny [leave to amend] is particularly broad where, 6 as here, a plaintiff previously has been granted leave to amend.” Griggs v. Pace Am. 7 Grp., Inc., 170 F.3d 877, 879 (9th Cir. 1999). Plaintiffs do not request leave to amend. As 8 the Court previously granted leave to amend and the amended complaint does not correct 9 the identified deficiencies, the Court dismisses Plaintiffs’ claims against the specified 10 Defendants with prejudice. III. ORDER 11 12 13 14 15 16 Therefore, it is hereby ORDERED that Defendants’ motion to dismiss for lack of personal jurisdiction, Dkt. 104, is GRANTED. The Clerk shall terminate Frazier, Lawrence K. Sloan, and Jane Doe Sloan from this action. Dated this 28th day of May, 2020. A 17 18 BENJAMIN H. SETTLE United States District Judge 19 20 21 22 ORDER - 7
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