United States District Court, S.D. California
RODERIC M. WRIGHT, et al., Plaintiffs,
SIDNEY W. JACKSON, III, et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTION [DOC. 12] TO
James Lorenz United States District Judge
before the Court is Defendants' motion to dismiss
Plaintiffs' complaint for lack of personal jurisdiction.
(MTD [Doc. 12].) Pursuant to Civil Local Rule 7.1(d)(1), the
Court decides the matter on the papers submitted and without
oral argument. For the reasons stated below, the Court
GRANTS Defendants' motion.
case is a malpractice claim brought by California based
plaintiffs (“Plaintiffs”) against an Alabama
based attorney named Sidney W. Jackson III
(“Jackson”) who Plaintiffs engaged to represent
them in litigation that took place in Florida. In addition to
Jackson, Plaintiffs have named as defendants Jackson's
law firm and two Florida based court reporters who recorded
depositions taken in Florida.
Jackson's colleagues referred Plaintiffs to him. In the
course of representing Plaintiffs, Jackson emailed them a
retainer agreement and sent and received emails, phone calls,
and physical mail to and from California. Plaintiffs do not
allege any additional contacts with California undertaken by
Jackson or any of the other defendants in this action.
Defendants now move to dismiss Plaintiffs' complaint for
lack of personal jurisdiction. (MTD [Doc. 12].) Plaintiffs
oppose. (Opp'n [Doc. 14.)
defendant moves to dismiss for lack of personal jurisdiction,
it “is the plaintiff's burden to establish the
court's personal jurisdiction over a defendant.”
Doe v. Unocal, 248 F.3d 915, 922 (9th Cir. 2001)
(citing Cubbage v. Merchent, 744 F.2d 665, 667 (9th
Cir. 1984), cert. denied 470 U.S. 1005 (1985)). To withstand
a motion to dismiss under Fed.R.Civ.P. 12(b)(2), the
plaintiff need only demonstrate facts that, if true, would
support jurisdiction over the defendant. Id.
Although the plaintiff cannot “simply rest on the bare
allegations of the complaint, ” uncontroverted
allegations contained in the complaint must be taken as true.
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d
797, 800 (9th Cir. 2004). Furthermore, conflicts between the
parties contained in affidavits must be resolved in the
plaintiff's favor. Id.
district court has personal jurisdiction over a defendant
only if a statute authorizes jurisdiction and the assertion
of jurisdiction does not offend due process. Unocal,
248 F.3d at 922. “Where . . . there is no applicable
federal statute governing personal jurisdiction, the district
court applies the law of the state in which the district
court sits.” Yahoo! Inc., v. La Ligue Contre Le
Racisme Et L'Antisemitisme, 433 F.3d 1199, 1205 (9th
Cir. 2006); see also Fed.R.Civ.P. 4(k)(1)(a). Because
California's long-arm statute is coextensive with federal
due-process requirements, the jurisdictional analyses under
state and federal law are the same. Yahoo!, Inc.,
433 F.3d at 1205; Cal. Civ. Proc. Code § 410.10.
traditional bases for personal jurisdiction (i.e. physical
presence, domicile, and consent), the Due Process Clause
requires that a nonresident defendant have certain minimum
contacts with the forum state such that the exercise of
personal jurisdiction does not offend traditional notions of
fair play and substantial justice. Int'l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945). Accordingly,
where, as here, there is no physical presence, domicile, or
consent, jurisdiction exists only if: (1) the defendant
purposefully availed himself of the privilege of conducting
activities in the forum or purposely directs his activities
at the forum; (2) the claim arises out of the defendant's
forum related activities; and (3) the exercise of
jurisdiction comports with fair play and substantial justice,
i.e., it is reasonable. See Bancroft & Masters, Inc.
v. Augusta Nat'l Inc., 223 F.3d 1082, 1086 (9th Cir.
2000) (citing Cybershell, Inc. v. Cybershell, Inc.,
130 F.3d 414, 417 (9th Cir. 1997)). Plaintiff bears the
burden of satisfying the first two prongs of the test.
Schwarzenegger, 374 F.3d at 802. If plaintiff
succeeds in satisfying both prongs, the burden shifts to the
defendant to present a “compelling case” that the
exercise of jurisdiction would not be reasonable.
purposeful availment prong of the specific jurisdiction
analysis is dispositive here. “Purposeful availment
requires that the defendant have performed some type of
affirmative conduct which allows or promotes the transaction
of business within the forum state.” Sher v.
Johnson, 911 F.2d 1357, 1362 (9th Cir. 1990) (internal
citations and quotation marks omitted). Defendants cite to
Sher for the proposition that their contacts with
California are insufficient to constitute purposeful
Sher, a California resident named Sher contacted a
Florida based attorney to represent him in litigation in
Florida. Sher, 911 F.2d at 1360. During the course
of this litigation, Sher executed a retainer agreement in
California; the Florida based attorney made and received
phone calls and physical mailings to and from California; and
the attorney made three trips to California. Id.
Sher later filed a malpractice claim in the Central District
of California against the Florida attorney based on that
attorney's representation of him in the Florida
litigation. Id. The Ninth Circuit affirmed the
district court's dismissal for want of personal
jurisdiction, reasoning that these contacts with California
did not amount to purposeful availment. Id. at 1366.
the only contacts Plaintiffs allege Defendants made with
California consist of the following: (1) Defendant Jackson
forwarded via email to Plaintiff, who was in California at
the time, an Attorney Representation Agreement and (2)
Defendants sent and received some calls, emails, and physical
mail to and from Plaintiff while Plaintiff was in California.
These facts are identical to those of Sher except
that, unlike in Sher, Defendants here never made
physical trips to California. Because the present facts are
thus weaker than those found insufficient by the Ninth
Circuit in Sher to constitute purposeful availment,
it follows that this Court lacks personal jurisdiction over
Defendant Jackson. Because Plaintiffs do not allege that the
other defendants made more substantial contacts with
California than did Jackson, the Court finds it also lacks
personal jurisdiction over them.