Unpublished Disposition, 878 F.2d 386 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 386 (9th Cir. 1989)

Fermin REYES, Plaintiff-Appellee,v.Sam RIGGS, dba Sam Riggs Airpark and Sam Riggs FlyingService, Inc., an Oklahoma Corporation, Defendant-Appellant.

No. 87-4053.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 5, 1989.Decided June 26, 1989.

Helen J. Frye, District Judge, Presiding.

Before TANG and SKOPIL, Circuit Judges, and HOWARD D. McKIBBEN,*  District Judge.

MEMORANDUM** 

This is an appeal from the district court's refusal to vacate a default judgment. Defendants contend that the judgment is void because there existed insufficient contacts with the forum state to justify the exercise of the district court's jurisdiction. We agree and reverse and remand with instructions that the district court vacate the default judgment and dismiss the action.

FACTS AND PROCEEDINGS BELOW

Defendant Sam Riggs is a citizen of Oklahoma. He is the owner and operator of defendant Sam Riggs Airpark and is the controlling shareholder of defendant Sam Riggs Flying Service, Inc. Both entities are located in Claremore, Oklahoma. Riggs and Sam Riggs Flying Service are engaged in the business of training students at the Airpark to be agricultural spraying pilots. Sam Riggs Flying Service advertises its pilot training school in national magazines.

Plaintiff Fermin Reyes was a resident of Oregon who responded to the advertising by calling Sam Riggs Flying Service in Oklahoma and asking for additional information. Reyes was sent a brochure and a form letter from Sam Riggs describing the facilities and services offered by the school. Reyes, apparently induced by this information, traveled to Oklahoma, enrolled in the school, and completed the course. After returning to Oregon, Reyes filed this action against the defendants, alleging they made numerous oral and written misrepresentations concerning the nature of the facilities and the training.

Defendants failed to respond to the complaint and a default judgment was entered. On defendants' motion to vacate the judgment, the district court found that the defendants have no agents or sales persons in Oregon, that they are not listed in Oregon telephone directories, and that Sam Riggs had never been in Oregon or conducted business with Oregon companies. Nevertheless, the court found that the defendants intended to serve the Oregon market because they (1) advertised in Oregon through national media; (2) provided a toll-free telephone number; and (3) mailed a brochure to an Oregon resident. On that basis, the court concluded that its exercise of jurisdiction was proper.

DISCUSSION

To determine whether there exists personal jurisdiction over a nonresident defendant in a diversity case, we must consider both the scope of the forum state's long arm statute and whether the assertion of such jurisdiction accords with constitutional principles of due process. Data Disc, Inc. v. Systems Technology Assocs., Inc., 557 F.2d 1280, 1286 (9th Cir. 1977). Here, Oregon's long-arm statute, Or.R.Civ.P. 4L, has been interpreted as conferring jurisdiction to the outer limits of due process. Raffaele v. Compagnie Generale Maritime, 707 F.2d 395, 396 (9th Cir. 1983). Thus, our sole concern is whether the district court's assertion of jurisdiction in this instance is consistent with due process.

Reyes cannot validly contend that the defendants had "substantial" or "continuous and systematic" contacts with Oregon sufficient to support the exercise of general jurisdiction. See Heliocopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414 & n. 9 (1984). Therefore, we must decide whether the district court properly possessed "limited" or "specific" jurisdiction for a cause of action arising out of the defendants' forum related activities. See Sinatra v. National Enquirer, Inc., 854 F.2d 1191, 1194-95 (9th Cir. 1988). The plaintiff bears the burden of establishing a prima facie case of jurisdiction. See Brand v. Menlove Dodge, 796 F.2d 1070, 1072 (9th Cir. 1987) (reversing entry of default judgment for lack of personal jurisdiction).

In this circuit a district court can assert limited jurisdiction if the following three conditions are satisfied: (1) the nonresident defendants must do some act or consummate some transaction with the forum or perform some act by which they purposefully avail themselves 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 results from the defendants' forum related activities; and (3) the exercise of jurisdiction must be reasonable. Sinatra, 854 F.2d at 1195. Each of the three tests must be satisfied to permit a district court to exercise specific, personal jurisdiction over a nonresident. Peterson v. Kennedy, 771 F.2d 1244, 1261 (9th Cir. 1985), cert. denied, 475 U.S. 1122 (1986). Thus, if we conclude that one or more conditions are not met, we need not consider the remaining. See Davis v. American Family Mutual Ins. Co., 861 F.2d 1159, 1163 (9th Cir. 1988); Fields v. Sedwick Associated Risk, Ltd., 796 F.2d 299, 302 (9th Cir. 1986).

We conclude that the first condition--a showing of purposeful availment--has not been met in this case. That prong is satisfied only "when a defendant takes deliberate actions within the forum state or creates continuing obligations to forum residents." Hirsch v. Blue Cross, Blue Shield of Kansas City, 800 F.2d 1474, 1478 (9th Cir. 1986). Such deliberate and knowing action is required to ensure "that a defendant will not be haled into a jurisdiction solely as a result of 'random,' 'fortuitous,' or 'attenuated' contacts, or of the 'unilateral activity of another party or a third person.' " Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (citations omitted).

Here, defendants' deliberate acts in the forum state consisted of placing advertising in a national magazine and responding to a phone inquiry by mailing a brochure and letter to Oregon. While it may be possible that " 'some single or occasional acts' " are sufficient to support jurisdiction, id. at 475 n. 18 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 318 (1945)), we have already held that activity similar to that involved in this case is not enough to support the exercise of specific jurisdiction over a nonresident. See Davis, 861 F.2d at 1162 (hiring of agent in forum state along with numerous telephone and mail contacts concerning insurance claims do not amount to purposeful availment); Peterson, 771 F.2d at 1262 (mail and telephone communications are "legally insufficient" to satisfy the purposeful availment prong); Hunt v. Erie Ins. Group, 728 F.2d 1244, 1248 (9th Cir. 1984) (mere fact that defendant communicated with plaintiff in forum state and may have committed a tort in the exchange of correspondence does not show purposeful availment); Thos. P. Gonzalez Corp. v. Consejo Nacional de Produccion de Costa Rica, 614 F.2d 1247, 1254 (9th Cir. 1980) ("use of the mails, telephone, or other international communications simply do not qualify as purposeful activity invoking the benefits and protections of the [forum] state"). Our decisions are squarely in line with those from other circuits. See, e.g., Johnston v. Frank E. Basil, Inc., 802 F.2d 418, 420 (11th Cir. 1986) (advertising in a forum state newspaper for employment opportunities outside state and the sending of agent to forum state to interview at the instigation of the resident are not acts of purposeful availment); Holt Oil & Gas Corp. v. Harvey, 801 F.2d 773, 777-78 (5th Cir. 1986) (contract with forum resident sent to forum state, checks sent to forum state, and extensive telephone and written communications to forum state are insufficient to support specific jurisdiction), cert. denied, 481 U.S. 1015 (1987).

In two recent decisions we noted that the solicitation of business in the forum state will generally be considered purposeful availment if it results in contract negotiations or the transaction of business. Shute v. Carnival Cruise Lines, 863 F.2d 1437, 1441 (9th Cir. 1988), withdrawn pending certification to state court, 872 F.2d 930 (9th Cir. 1989); Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 840 (9th Cir. 1986). One might argue here that defendants' communications with the plaintiff resulted in a transaction of business. We conclude, however, that the present case is distinguisable from Shute and Decker. In Shute, the plaintiff advertised in local media, promoted its business through brochures sent to travel agents throughout the forum state, paid commissions to those agents for sales, and conducted promotional seminars within the state to solicit increased sales. Shute, 863 F.2d at 1441-42. In Decker, while the contacts were not as great, the contract specified that performance was to be made in the forum state. Decker, 805 F.2d at 840. Thus, both Shute and Decker involved additional, substantial contacts with the respective forums.

Finally, we have asserted jurisdiction over a defendant who introduces a defective product into the flow of commerce knowing that it may reach the forum state. See Hedrick v. Daiko Shoji Co., Osaka, 715 F.2d 1355, 1358 (9th Cir. 1983). That is not the case here. We have also allowed district courts to exercise jurisdiction over nonresident defendants whose only "contact" with the forum state was the "purposeful direction" of foreign acts having "effects" within the forum state. See Sinatra, 854 F.2d at 1195; Haisten v. Grass Valley Medical Reimbursement, 784 F.2d 1392, 1398 (9th Cir. 1986). Plaintiff argues that defendants' acts induced him to travel to Oklahoma, thereby (1) causing him to temporarily abandon his family and (2) reducing the workforce in Oregon. He claims that these are important "effects" of the defendants' forum related activities. While perhaps important to plaintiff, these are not "effects" sufficient to establish personal jurisdiction over nonresident defendants. Rather, the forum state must be " 'the focal point both of the story and of the harm suffered.' " Sinatra, 854 F.2d at 1196 (quoting Calder v. Jones, 465 U.S. 783, 789 (1984)). The focal point here is clearly Oklahoma, not Oregon.

We conclude that the district court erred in asserting personal jurisdiction over the defendants. A judgment rendered in the absence of jurisdiction violates due process and is therefore void. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980); Pacific Atl. Trading Co. v. M/V Main Express, 758 F.2d 1325, 1331 (9th Cir. 1985). Accordingly, we reverse and remand to allow the district court to set aside the default judgment and to dismiss the action.

REVERSED and REMANDED.


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The Honorable Howard D. McKibben, U.S. District Judge for the United States District Court of Nevada, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3