Unpublished Disposition, 875 F.2d 871 (9th Cir. 1989)

MEMORANDUM^** 

Plaintiff Mary Ann Spanovich brought an action in Arizona District Court seeking damages for libel, slander, defamation of character and mental anguish against defendant Raleigh Times, a newspaper incorporated and located in North Carolina. The defendant was properly notified by service of process in North Carolina, but failed to make an appearance or answer the complaint. An entry of default was made by the clerk's office. Prior to entry of default judgment by the court the defendants moved for relief from default and to dismiss. The district court granted the relief from default and dismissed the action on the ground that personal jurisdiction was lacking over the defendants. Spanovich entered a timely appeal. This court has jurisdiction under 28 U.S.C. § 1291. We affirm.

STANDARD OF REVIEW

The district court's decision to grant relief from default is a matter of broad discretion of the district court and we will reverse only if the court is "clearly wrong." Mendoza v. Wight Vineyard Management, 783 F.2d 941, 945 (9th Cir. 1986). A district court's determination that personal jurisdiction is lacking is a question of law reviewable de novo. Haisten v. Grass Valley Medical Reimbursement, 784 F.2d 1392, 1396 (9th Cir. 1986).

DEFAULT

The district court found that the defendant's default was due to confusion as to the significance of the legal papers served upon them. Because Spanovich had filed actions against the same defendant in a number of North Carolina and Arizona courts and the papers served in this case were defectively captioned, the district court found that defendant's confusion was understandable and that granting relief would not unduly prejudice Spanovich. We agree and affirm the district court's grant of relief.

PERSONAL JURISDICTION

Arizona has extended its long-arm jurisdiction to the maximum extent permitted by due process. Batton v. Tennessee Farmers Mut. Ins. Co., 153 Ariz. 268, 270, 736 P.2d 2, 4 (1987). The due process clause of the Constitution protects individuals from the imposition of binding judgments by forums in which they have no meaningful contacts, ties or relationships. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985). The district court held that the Raleigh Times lacked such connections with the District of Arizona and we agree.

The district court found that the newspaper's subscriptions in Arizona at the time of the allegedly libelous article were five in number, and that the paper did not regularly seek advertisers, readers, or stories in Arizona. On appeal Spanovich argues that the number is somewhat larger, but she presented no such evidence to the district court. The precise number of subscriptions, however, is not the crucial point.

The essential question is whether the Raleigh Times "purposefully availed" itself of the forum by deliberately engaging in activities within the forum. Burger King Corp., 471 U.S., at 476-76, Haisten v. Grass Valley Medical Reimbursement, 784 F.2d 1392, 1397 (9th Cir. 1986). The district court found that such deliberate engagement with the forum was lacking in this case and we agree. See e.g., Buckley v. New York Times Co., 338 F.2d 470 (5th Cir. 1964) (circulation of 391 daily and 1784 Sunday newspapers within state insufficient for due process jurisdiction).

It is understandable that Spanovich, a litigant of limited financial resources who filed this action in forma pauperis, finds litigating in North Carolina extremely burdensome. However, the due process right to be protected from judgments where personal jurisdiction is lacking, is a constitutional guarantee that cannot be waived by the court on equitable grounds. The district court order dismissing this action is AFFIRMED.