Unpublished Disposition, 881 F.2d 1084 (9th Cir. 1989)

MEMORANDUM^* 

Lloyd Kelly ("Kelly") appeals (1) the district court's order dismissing defendant Burlington Northern, Inc. ("BNI") for want of personal jurisdiction, (2) the magistrate's denial of Kelly's motion to compel and (3) the district court's summary judgment in favor of defendant Meridian Land & Mineral ("Meridian"). We have jurisdiction under 28 U.S.C. § 1291. We affirm in part and reverse in part.

FACTS

Kelly filed the present diversity action alleging a variety of tort and contract claims against Meridian, his former employer, and BNI, Meridian's parent corporation¹ . The district court dismissed BNI for want of personal jurisdiction. Later in the proceedings, Kelly moved to compel discovery regarding the severance packages granted other BNI employees. The magistrate denied Kelly's motion to compel. Around the same time, Meridian moved for summary judgment. The district court held that the severance agreement signed by Kelly and the president of Meridian constituted a valid release of all of Kelly's claims against the defendants. The court entered summary judgment against Kelly on all his claims against Meridian. Kelly appeals.² 

ANALYSIS

Upon BNI's motion, the district court dismissed BNI as a defendant. The court held that it could not exercise personal jurisdiction over BNI.

In diversity cases, the plaintiff must show that the assertion of personal jurisdiction comports with: (1) the law of the forum state and (2) federal principles of due process. Lake v. Lake, 817 F.2d 1416, 1420 (9th Cir. 1987). Montana law permits the exercise of jurisdiction over BNI. See Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 839 (9th Cir. 1986); Mont.R.Civ.P. 4B(1). Meridian and BNI do not argue otherwise.

The critical issue is whether federal principles of due process bar the exercise of jurisdiction over BNI. There are two types of jurisdiction: general and specific. Lake, 817 F.2d at 1420. We hold that Kelly has presented sufficient evidence to establish the availability of specific jurisdiction. See Lake, 817 F.2d at 1421; Corporate Investment Business Brokers v. Melcher, 824 F.2d 786, 787-89 (9th Cir. 1987) (per curiam).

Therefore we must reverse the district court's dismissal of BNI as a defendant. We express no opinion as to what effect our affirmance of the summary judgment in favor of Meridian has on the viability of Kelly's claims against BNI.

Federal Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978) ("A party opposing a motion for summary judgment must introduce 'sufficient evidence supporting the claimed factual dispute ... to require a jury or judge to resolve the parties' differing versions of the truth at trial.' "), cert. denied, 440 U.S. 981 (1979). In the present case, Kelly argues that the settlement agreement was void for want of consideration and voidable because he signed the agreement under duress. He has the ultimate burden of proof on both issues. See Nordwick v. Berg, 725 P.2d 1195, 1197 (Mont.1986) (a written contract is presumed to be supported by consideration); McNussen v. Graybeal, 146 Mont. 173, 405 P.2d 447, 454 (1965) (economic duress claim requires proof of wrongful or unlawful conduct); see also Emerson-Brantingham Implement Co. v. Anderson, 58 Mont. 617, 194 P. 160, 165 (1920).

There is no evidence from which a reasonable jury could conclude that the termination agreement lacked proper consideration. Furthermore, Kelly has produced no evidence from which a reasonable trier of fact could conclude that Meridian's conduct in presenting the termination agreement to Kelly, or in terminating him was wrongful or unlawful. Without evidence of such conduct, Kelly's duress argument fails. McNussen, 405 P.2d at 454. We conclude that summary judgment was properly granted.

Kelly moved to compel testimony regarding severance packages other BNI employees had received. The magistrate ruled that the requested discovery was not relevant and was unduly burdensome. We conclude that the denial of Kelly's motion to compel was not an abuse of discretion. Liew v. Brien, 640 F.2d 1046, 1049 (9th Cir. 1981) (standard of review). Even if the magistrate's decision was erroneous, the error would have been harmless given our holding that Kelly's severance agreement was valid as a matter of law.

CONCLUSION

We reverse the district court's dismissal of BNI as a defendant. We affirm the district court's summary judgment in favor of Meridian. We also affirm the district court's denial of Kelly's motion to compel discovery. Each party shall bear his and its own costs on appeal.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.