Unpublished Disposition, 884 F.2d 582 (9th Cir. 1989)

MEMORANDUM

The Michels appeal the district court's entry of summary judgment in favor of defendant American Capital Enterprises, Inc. (American Capital), and two of its employees, Mathison and Wilson. The Michels argue that the district court erred in (1) treating defendants' motion to dismiss as a motion for summary judgment, and (2) holding that it lacked personal jurisdiction over the defendants. The district court had subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1332. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse.

* The Michels first argue that the district court erred in treating American Capital's motion to dismiss as a motion for summary judgment. It is well settled that a Rule 12(b) (6) motion to dismiss for failure to state a claim is properly treated as a motion for summary judgment where the court considers matters outside the pleadings. Lodge 1380, Brotherhood of Railway, Airline & Steamship Clerks, Freight Handlers, Express and Station Employees v. Dennis, 625 F.2d 819, 824 (9th Cir. 1980). In this case, the magistrate did consider affidavits and other matters outside the pleadings.

The Michels argue, however, that unlike a Rule 12(b) (6) motion, a motion under Rule 12(b) (2) cannot be converted into a motion for summary judgment. They point to the language of Rule 12(b), which specifically mentions conversion of only a 12(b) (6) motion. The Michels read too much into Rule 12(b)'s language. Rule 12(b) requires conversion of a 12(b) (6) motion under certain circumstances; it does not prohibit conversion into summary judgment motions of other kinds of 12(b) motions to dismiss. Moreover, the reason why Rule 12(b) does not specifically refer to conversion of other types of defenses listed in 12(b) is fairly clear: "There never has been any serious doubt as to the availability of extra-pleading material on these motions." 5 C. Wright & A. Miller, Federal Practice and Procedure: Civil Sec. 1366, at 676 (1969) (footnote omitted). In Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280 (9th Cir. 1977) (Data Disc), we held that " [b]ecause there is no statutory method for resolving [a pretrial motion to dismiss for lack of personal jurisdiction under Rule 12(b) (2) ], the mode of its determination is left to the trial court." Id. at 1285. Lack of personal jurisdiction has been tested in a summary judgment proceeding.

We conclude that since "the mode of ... determination [of a Rule 12(b) (2) motion] is left to the trial court," id., the court did not err in considering defendants' motion to dismiss as a motion for summary judgment.

II

The Michels next argue that the district court erred in holding that it lacked personal jurisdiction over defendants. We review independently a district court's entry of summary judgment for lack of personal jurisdiction. Peterson v. Kennedy, 771 F.2d 1244, 1261 (9th Cir. 1985) (Peterson), cert. denied, 475 U.S. 1122 (1986). Although the Michels bear the burden of proving the existence of personal jurisdiction, "the quantum of proof required to meet that burden ... depend [s] upon the nature of the proceeding and the type of evidence which the plaintiff is permitted to present." Data Disc, 557 F.2d at 1285. Because the trial court considered only affidavits and discovery materials but did not hold an evidentiary hearing, the Michels need only demonstrate the prima facie elements of jurisdiction. Fields v. Sedgwick Associated Risks, Ltd., 796 F.2d 299, 301 (9th Cir. 1986); Data Disc, 557 F.2d at 1285.

To determine whether personal jurisdiction exists 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. Sinatra v. National Enquirer, Inc., 854 F.2d 1191, 1194 (9th Cir. 1988) (Sinatra) ; Data Disc, 557 F.2d at 1286. 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); State ex rel. Hydraulic Servocontrols v. Dale, 294 Or. 381, 657 P.2d 211, 212 (1982). Thus, our sole concern is whether the assertion of jurisdiction over American Capital would comport with due process. See Sinatra, 854 F.2d at 1194.

"The due process clause of the Fourteenth Amendment requires that the defendant must have minimum contacts with the forum state 'such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.' " Id., quoting Data Disc, 557 F.2d at 1287. This circuit has recognized two types of personal jurisdiction--"general" and "specific." Peterson, 771 F.2d at 1261. "General" jurisdiction exists where the defendant has "substantial" or "continuous and systematic" contacts with the forum state, even if the cause of action is unrelated to the defendant's forum activities. Id. That is not suggested here. Even if there is no general jurisdiction, however, there still may exist "limited" or "specific" jurisdiction if the defendant's contacts with the forum state are sufficiently related to the cause of action. Id.

A district court may assert specific jurisdiction if the following three conditions are met:

(1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself 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 defendant's forum-related activities. (3) Exercise of jurisdiction must be reasonable.

Data Disc, 557 F.2d at 1287; see also Sinatra, 854 F.2d at 1195; Peterson, 771 F.2d at 1261.

We hold that the first condition--purposeful availment--has been demonstrated in this case. "Purposeful availment analysis examines whether the defendant's contacts with the forum are attributable to his own actions or are solely the actions of the plaintiff." Sinatra, 854 F.2d at 1195 (emphasis added); see also Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 840 (9th Cir. 1986) (Decker) . To satisfy the purposeful availment requirement, a defendant "must have performed some type of affirmative conduct which allows or promotes the transaction of business within the forum state." Sinatra, 854 F.2d at 1195; see also Decker, 805 F.2d at 840. Thus, we must consider whether American Capital, by its own actions, "invoked the benefits and protections" of Oregon law. Data Disc, 557 F.2d at 1287.

We disagree with the magistrate's conclusion that American Capital did not initiate any contacts. In fact, American Capital initiated at least three (and perhaps four) steps which constituted debt collection activities. American Capital or its employees (1) contacted Mortgage Reporting in Oregon after receiving the credit information form in order to obtain the new address of the Michels, (2) sent at least one and possibly two debt collection notices to the Michels, and (3) telephoned the Michels after learning that they had called St. Mary's and informed them that the loan had been assigned to American Capital and that the Michels should no longer deal with St. Mary's. These three (perhaps four) contacts represent efforts by American Capital to conduct its business--collection of debts--in Oregon. Contrary to American Capital's assertions and the magistrate's conclusions, these actions are not merely responsive to the Michels' activities. While American Capital's actions in mailing back the credit form, returning the Michels' various calls, and sending the December 26 letter all may be characterized as responsive actions, the above three or four additional contacts cannot.

The question remains, however, whether these three or four contacts initiated by American Capital satisfy the test for purposeful availment. We hold that they do. The Supreme Court has held that where a defendant commits an intentionally tortious act knowing it will have a potentially devastating effect on the plaintiff in the forum state, a court may exercise personal jurisdiction over the defendant and not run afoul of the due process clause. Calder v. Jones, 465 U.S. 783, 788-91 (1984); see also Brainerd v. Governors of the University of Alberta, 873 F.2d 1257, 1259-60 (9th Cir. 1989). Here, the Michels have alleged that American Capital committed various intentional torts in an attempt to prevent the Michels from obtaining a mortgage in Oregon, damage their credit rating, invade their privacy, and collect a debt through fraudulent representations. While at this stage of the proceedings these allegations remain unproven, if proven they would provide a sufficient basis for personal jurisdiction. The Michels have made out a prima facie case that American Capital took affirmative steps to collect a debt in Oregon. Viewing the evidence in the light most favorable to the nonmovant Michels, we conclude that the Michels have made out a prima facie case of purposeful availment.

Turning to the second requirement for specific jurisdiction, we conclude that the Michels' claim arises out of American Capital's forum-related activities. The Michels' Fair Debt Collection Practices Act claims are based at least in part upon the December 18 collection notice, which the Michels allege asserted falsely that American Capital had obtained a judgment against the Michels. In addition, the Michels' libel and invasion of privacy claims arise out of their telephone conversations and written correspondence with American Capital.

Third and finally, we conclude that exercise of jurisdiction over American Capital is reasonable. Once purposeful availment has been established, the forum's exercise of jurisdiction is presumptively reasonable, and the burden shifts to the defendant to present a compelling case that jurisdiction would be reasonable. Sinatra, 854 F.2d at 1198. American Capital has failed to carry this burden.

REVERSED.

Note: 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.