Opinion
Case No. CIV-05-0424-L.
December 5, 2005
ORDER
This matter is before the court on Defendant Prestige Ford Garland, Limited Partnership's Motion to Dismiss for Want of In Personam Jurisdiction [Doc. No. 12]. Plaintiff, Tom Andrews, responded to the motion and the court allowed reply and surreply briefs.
Plaintiff brings this action alleging violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681, et seq., invasion of privacy, unjust enrichment, and negligence. The First Amended Complaint alleges that defendants accessed his consumer reports without authorization and without a permissible purpose, stole his credit identity and used it to lease and purchase certain vehicles for other customers, making plaintiff's name appears as the lessee/purchaser to the credit transactions, damaging his good name, hindering his ability to obtain credit, and invading his privacy.
Defendant Prestige Ford Garland Limited Partnership ("Prestige Garland") asserts that the court's exercise of personal jurisdiction over it would violate due process because its contacts with the State of Oklahoma are insufficient to justify the court's exercise of personal jurisdiction over Prestige Garland. In support of this assertion, Prestige Garland has submitted the affidavit of Jerry Reynolds, its owner, which indicates the following: Prestige Garland is located in Garland, Texas; Prestige Garland does not, and has not ever maintained any offices, agents, salesmen or any property in the State of Oklahoma; Prestige Garland does not, and has not ever advertised or solicited business in the State of Oklahoma; Prestige Garland has never conducted business of any kind in the State of Oklahoma; that plaintiff sought out Prestige Garland's services for purchase or lease of certain vehicles; that plaintiff traveled to the State of Texas to conduct the transactions involved in this lawsuit; that plaintiff specifically authorized the purchase or lease of the involved vehicles; and that Prestige Garland has never conducted business in the State of Oklahoma and never expected to be brought before an Oklahoma court.
In response, plaintiff asserts that the factual contentions contained in the affidavit are misleading and false. In this connection, plaintiff asserts that he did not travel to Texas for the lease/purchase of the vehicles. In addition, plaintiff claims that Prestige Garland and its employees were aware that plaintiff had not provided them with authorization to obtain his consumer reports; that Prestige Garland and its employees were aware that plaintiff had not provided them with authorization to lease/purchase the vehicles using his name and signature; that Prestige Garland and its employees had knowledge that plaintiff resided in Oklahoma; that Prestige Garland and its employees had reason to believe that their actions in using plaintiff's name and identity would cause injury to plaintiff in Oklahoma. Plaintiff argues that as a result of these actions, Prestige Garland could reasonably anticipate being haled into court in Oklahoma.
The court has discretion to determine the procedure by which it will decide a motion to dismiss for lack of personal jurisdiction. Ten Mile Industrial Park v. Western Plains Service Corp., 810 F.2d 1518, 1524 (10th Cir. 1987). The plaintiff carries the burden of showing the propriety of the court's exercise of personal jurisdiction over a defendant. Doe v. National Medical Servs., 974 F.2d 143, 145 (10th Cir. 1992). If the question of personal jurisdiction is considered prior to trial on the basis of affidavits and other written materials, the plaintiff need only make a prima facie showing of personal jurisdiction. FDIC v. Oaklawn Apartments, 959 F.2d 170, 174 (10th Cir. 1992). In ascertaining the facts necessary to establish jurisdiction, the court must accept as true the allegations set forth in the complaint to the extent they are uncontroverted by defendant's affidavits. Behagen v. Amateur Basketball Ass'n of U.S.A., 744 F.2d 731, 733 (10th Cir.), cert. denied, 471 U.S. 1010 (1985). The plaintiff has a duty to support jurisdictional allegations in a complaint by competent proof of the supporting facts if the jurisdictional allegations are challenged by an appropriate pleading. Pytlik v. Professional Resources, Ltd., 887 F.2d 1371, 1376 (10th Cir. 1989).
As stated, where there is no evidentiary hearing and the motion to dismiss for lack of jurisdiction is decided on the basis of affidavits and other written material, the plaintiff need only make a prima facie showing that jurisdiction exists. Wenz v. Memery Crystal, 55 F. 3d 1503, 1505 (10th Cir. 1995). The allegations in the complaint must be taken as true to the extent they are uncontroverted by the defendant's affidavits. Id. If the parties present conflicting affidavits, all factual disputes must be resolved in the plaintiff's favor, and the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party. Id. However, only the well pled facts of plaintiff's complaint, as distinguished from mere conclusory allegations, must be accepted as true. Id. Although plaintiff bears the burden of establishing personal jurisdiction, in the preliminary stages of litigation this burden is light.Id.
Specific jurisdiction arises out of a defendant's specific contacts with the forum state. Rambo v. American Southern Ins. Co., 839 F.2d 1415, 1418 (10th Cir. 1988). A court has specific jurisdiction when "there is some act by which the defendant purposely avails itself of the privileges of conducting activities within the forum state, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253 (1958); Trierweiler, 90 F.3d at 1532. "Purposeful availment analysis turns upon whether the defendant's contacts are attributable to his own actions or solely to the actions of the plaintiff . . . [and generally] requires . . . affirmative conduct by the defendant which allows or promotes the transaction of business within the forum state." Rambo, 839 F.2d at 1420 (quoting Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 840 (9th Cir. 1986)).
This "purposeful availment" requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of "random," "fortuitous," or "attenuated" contacts, or of the "unilateral activity of another party or a third person." Jurisdiction is proper, however, where the contacts proximately result from actions by the defendant himself that create a "substantial connection" with the forum state.Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (citations omitted) (emphasis in original).
Regardless of whether the court has general or specific jurisdiction, the defendant's conduct and connection with the forum state must be such that it could reasonably anticipate being haled into court in that forum. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). This is because, in determining whether the court has personal jurisdiction over a defendant, the court must ensure that the exercise of jurisdiction "does not offend traditional notions of fair play and substantial justice." Id. at 292. In this respect, the exercise of jurisdiction must be reasonable.Rambo, 839 F.2d at 1419 n. 6.
Upon thorough consideration of the entire case file and the briefs and materials submitted, the court determines that plaintiff has met its light burden at this stage and has made a prima facie showing of specific jurisdiction over Prestige Garland. The court finds that the alleged actions of Prestige Garland, and the effect of these actions on plaintiff, an Oklahoma resident, demonstrate a substantial connection with the State of Oklahoma. Due to the nature of the personal information allegedly misused by Prestige Garland or its employees, it was apparent that plaintiff was a resident of Oklahoma. Prestige Garland's actions create a substantial connection with the State of Oklahoma since plaintiff was injured in Oklahoma. See Cole v. American Family Mut. Ins. Co., 333 F. Supp. 1038, 1048 (D.Kan. 2004). The court finds that the exercise of specific jurisdiction over Prestige Garland would be not be unreasonable under the circumstances alleged.
Therefore, for the reasons stated above, Defendant Prestige Ford Garland, Limited Partnership's Motion to Dismiss for Want of In Personam Jurisdiction [Doc. No. 12] should be and is hereby DENIED in its entirety.
It is so ordered.