If a motion for summary judgment is denied, disputed factual questions relevant to exhaustion should be decided by the judge, in the same manner a judge rather than a jury decides disputed factual questions relevant to jurisdiction and venue. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 188–90, 56 S.Ct. 780, 80 L.Ed. 1135 (1936) (subject-matter jurisdiction); Murphy v. Schneider Nat'l, Inc., 362 F.3d 1133, 1139–40 (9th Cir.2004) (venue); Lake v. Lake, 817 F.2d 1416, 1420 (9th Cir.1987) (personal jurisdiction). We reiterate that, if feasible, disputed factual questions relevant to exhaustion should be decided at the very beginning of the litigation.

In order for a district court to exercise personal jurisdiction over a defendant in a diversity of citizenship lawsuit, the plaintiff must show (1) that the forum's long-arm jurisdiction statute confers jurisdiction over the defendant, and (2) that the exercise of jurisdiction comports with federal constitutional principles of due process. Haisten v. Grass Valley Medical Reimbursement Fund, Ltd., 784 F.2d 1392, 1396 (9th Cir. 1986); Lake v. Lake, 817 F.2d 1416,1420 (9th Cir. 1987). The Ninth Circuit Court of Appeals addressed the standard under the Idaho long-arm statute in Lake v. Lake, 817 F.2d 1416, 1420 (9th Cir. 1987):

In order to establish personal jurisdiction in a diversity case, Plaintiff must show: (1) that the statute of the forum confers personal jurisdiction over the nonresident defendants; and (2) that the exercise of jurisdiction accords with federal principles of due process. Lake v. Lake, 817 F.2d 1416, 1420 (9th Cir. 1987). Under Arizona's long-arm statute, the approach is a one step analysis: "A court of this state may exercise personal jurisdiction over parties, whether found within or outside the state, to the maximum extent permitted by the Constitution of this state and the Constitution of the United States."

Brainerd must make a prima facie showing of personal jurisdiction to avoid dismissal. Lake v. Lake, 817 F.2d 1416, 1420 (9th Cir. 1987). Arizona law governs this personal jurisdiction issue.

Because the underlying facts are undisputed, the district court's determination that it could not exercise personal jurisdiction over Melcher without violating due process is subject to de novo review. Lake v. Lake, 817 F.2d 1416, 1420 (9th Cir. 1987); Hirsh v. Blue Cross, Blue Shield, 800 F.2d 1474, 1477 (9th Cir. 1986). Also reviewed de novo is the court's interpretation of Arizona law regarding personal jurisdiction.

Where, as here, the Motion to Dismiss will be decided solely on written submissions, the Court must take Plaintiff's uncontroverted allegations in the Complaint as true and resolve "[a]ll factual disputes . . . in the plaintiff's favor." Lake v. Lake, 817 F.2d 1416, 1420 (9th Cir. 1987). Background

The Ninth Circuit employs a three-part test to determine whether a defendant is subject to specific jurisdiction. See Schwarzenegger, 374 F.3d at 802 (quoting Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987)). First, the plaintiff must show that the defendant “purposefully direct[ed]” its activities toward the forum or “purposefully avail[ed] [itself] of the privilege of conducting activities in the forum.” Id.

First, "The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident 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." Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004) (quoting Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987)). Purposeful "availment and direction are, in fact, two distinct concepts.

Personal jurisdiction can be general or specific. Lake v. Lake, 817 F.2d 1416, 1420 (9th Cir. 1987). A court may assert general personal jurisdiction over foreign corporations "when their affiliations with the State are so 'continuous and systematic' as to render them essentially at home in the forum State."

There are two types of personal jurisdiction—general and specific. Lake v. Lake, 817 F.2d 1416, 1420 (9th Cir. 1987). General jurisdiction is exercised by a state when personal jurisdiction is asserted over a "defendant in a suit not arising out of or related to the defendant's contacts with the forum."