Unpublished Disposition, 912 F.2d 470 (9th Cir. 1990)

No. 89-55383.

United States Court of Appeals, Ninth Circuit.

Before HUG and TROTT, Circuit Judges, and JENSEN,^*  District Judge.

MEMORANDUM^** 

This is a diversity action brought in a California district court on behalf of the California corporation, which sold equipment to a New York corporation. The district court dismissed for lack of personal jurisdiction. The principal issue is whether the New York corporation had sufficient contacts with the State of California to afford personal jurisdiction over it.

The plaintiff has the burden to establish the existence of personal jurisdiction against each defendant on the claim asserted. Cubbage v. Merchent, 744 F.2d 665, 667-68 (9th Cir. 1984), cert. denied, 470 U.S. 1005 (1985); Data Disc, Inc. v. Systems Technology Assoc., Inc., 557 F.2d 1280, 1285, 1289 n. 8 (9th Cir. 1977). Where, as here, the district court ruled by relying on affidavits and discovery materials without an evidentiary hearing, the plaintiff has the burden to make a prima facie showing of jurisdictional facts. Data Disc, 557 F.2d at 1285.

Normally, in a diversity action, the plaintiff must establish that the exercise of personal jurisdiction satisfies both the requirements of the forum state's long-arm statute and federal constitutional standards of due process. Lake v. Lake, 817 F.2d 1416, 1420 (9th Cir. 1987). Here, however, a single analysis may be employed because the California jurisdictional statute, Cal.Civ.Proc.Code Sec. 410.10 (West 1973), is coextensive with federal due process standards. FDIC v. British-American Ins. Co., Ltd., 828 F.2d 1439, 1441 (9th Cir. 1987); Data Disc, 557 F.2d at 1286 n. 3.

As a constitutional touchstone, due process requires that the nonresident defendant "have certain minimum contacts with [the forum] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (emphasis added; citation omitted). A qualitative evaluation must be made of "the relationship among the defendant, the forum, and the litigation," Shaffer v. Heitner, 433 U.S. 186, 204 (1977), on a case-by-case basis. Pacific Atl. Trading Co., Inc. v. M/V Main Express, 758 F.2d 1325, 1327-28 (9th Cir. 1985). Due process therefore serves to afford the nonresident defendant a "fair warning" that "meaningful 'contacts, ties, or relations' " with the forum may result in a binding judgment. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (citations omitted).

It is established that " [w]hen a defendant moves to dismiss for lack of personal jurisdiction, the plaintiff is 'obligated to come forward with facts, by affidavit or otherwise, supporting personal jurisdiction.' " Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986) (quoting Amba Marketing Sys., Inc. v. Jobar Int'l, Inc., 551 F.2d 784, 787 (9th Cir. 1977)). Generally, the district court may exercise its discretion to resolve contested facts at a preliminary hearing. See 2A J. Moore & J. Lucas, Moore's Federal Practice p 12.07 [2.-2], at 12-55 to 12-57 (1989 ed.); accord Fed. R. Civ. P. 43(e) (district court discretion to resolve evidence on motions by affidavits, deposition, or oral testimony). However, where, as here, the motion is decided solely on written submissions, the facts are usually accepted as presented by the plaintiff and factual disputes are resolved in the plaintiff's favor. See Lake, 817 F.2d at 1420; Fields v. Sedgwick Assoc. Risks, Ltd., 796 F.2d 299, 301 (9th Cir. 1986). As a rare exception to this general rule of acceptance, a personal jurisdiction affidavit need not be considered where it is "inherently incredible." Data Disc, 557 F.2d at 1284. None of the factual statements by the plaintiff involved in this case are "inherently incredible."

Specific jurisdiction may be invoked where a strong relation is established between the nonresident defendant's contacts with the forum and the cause of action. Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414 n. 8 (1984). A three-part test is applied in the Ninth Circuit to determine whether specific jurisdiction may lie:

(1) the nonresident defendant must purposefully direct his activities or consummate some transaction with the forum or residents thereof; 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 relates to the defendant's forum-related activities; and

(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.

Lake, 817 F.2d at 1421 (emphasis added; citation omitted). In the Ninth Circuit, all three factors must be established for specific jurisdiction to lie. See, e.g., McGlinchy v. Shell Chem. Co., 845 F.2d 802, 817 & n. 10 (9th Cir. 1988); Fields, 796 F.2d at 302. However, under recent Supreme Court authority "a strong showing of reasonableness may lessen the required showing of minimum contacts." Hirsch v. Blue Cross, Blue Shield, 800 F.2d 1474, 1481 (9th Cir. 1986) (citing Burger King, 471 U.S. at 477); see also Haisten v. Grass Valley Medical Reimbursement Fund, Ltd., 784 F.2d 1392, 1400 (9th Cir. 1986).

The entry into a contract alone does not establish purposeful availment. Burger King, 471 U.S. at 478-79; FDIC, 828 F.2d at 1443; Hirsch, 800 F.2d at 1480 n. 3. Instead, pertinent factors to be considered include: "prior negotiations and contemplated future consequences, along with the terms of the contract and the parties' actual course of dealing." Burger King, 471 U.S. at 479.

It is undisputed that a contract was entered into with regard to the fire engine equipment and that LaFrance received the fire engines with the equipment installed and further that LaFrance drew down on a letter of credit from the Wells Fargo Bank in California for payment on the contract. The facts alleged by Stewart, though contested by LaFrance, are that (1) LaFrance sent the fire engine chassises to California for installation by the Fire-X Corporation; (2) delivery of at least some of the fire engines was taken in California; (3) employees of LaFrance came to California and were overseeing the manufacturing and installation of the fire engine equipment on the chassises; and (4) there was a continuing relationship between Fire-X Corporation and LaFrance.

Taking the undisputed facts and the facts alleged by Stewart to be true, this would be sufficient for specific jurisdiction to be established.

Of course, the plaintiff continues to hold the burden to establish the existence of personal jurisdiction throughout this action, including the full burden of proof by a preponderance of the evidence at a preliminary hearing or at trial. See, e.g. Lake, 817 F.2d at 1420 ("Presenting a prima facie case of jurisdiction, however, does not necessarily guarantee jurisdiction over the defendant at the time of trial. The district court has the discretion to take evidence at a preliminary hearing in order to resolve any questions of credibility or fact that arise subsequent to this appeal."); Data Disc, 557 F.2d at 1286 n. 2 ("Of course, at any time when the plaintiff avoids a preliminary motion to dismiss by making a prima facie showing of jurisdictional facts, he must still prove the jurisdictional facts at trial by a preponderance of the evidence.") (citations omitted).

At this point, the plaintiff has made a prima facie showing of specific jurisdiction and the judgment of dismissal is therefore reversed.

REVERSED.