Opinion
3:20-cv-02276-AC
08-26-2021
JEREMY LATHROP, Plaintiff, v. WABASH NATIONAL CORPORATION, a foreign corporation, and FEDEX CORPORATION, a foreign corporation, Defendants.
FINDINGS AND RECOMMENDATION
JOHN V. ACOSTA, UNITED STATES MAGISTRATE JUDGE
Plaintiff Jeremy Lathrop (“Lathrop”) brings this action against Defendants Wabash National Corporation (“Wabash”) and FedEx Corporation (“FedEx”) (collectively “Defendants”), asserting claims for common law negligence, negligence per se, strict product liability, and violations of Oregon's Employer Liability Law, Oregon Revised Statutes (“ORS”) 654.310, and the Oregon Safe Employment Act (“OSEA”), ORS 654.005. FedEx moves to dismiss Lathrop claims against it for lack of personal jurisdiction, pursuant to Federal Rules of Civil Procedure 12(b)(2). For the following reasons, FedEx's motion should be granted.
The court determines that oral argument would not be helpful to resolution of this matter. Local Rule 7(d)(1).
Factual Background
Lathrop alleges that all relevant times, he was employed by FedEx Freight, Inc. (“Freight”). (Compl. ¶ 1, ECF No. 1-1.) On September 28, 2018, Lathrop was injured while working within the course and scope of his employment as a truck driver with Freight. (Id. ¶ 4.) On that day, Lathrop was driving a truck with a trailer attached that was manufactured and sold by Wabash (the “Trailer”), carrying packages to be delivered to Freight's customers. (Id. ¶¶ 1, 4.) While making deliveries in Portland, Oregon, Lathrop pulled into a parking lot to verify the address of a delivery. (Id. ¶ 4.) Checking the address required Lathrop to exit the truck cab to review paperwork inside the Trailer. (Id.) Lathrop entered the rear of the Trailer without difficulty and determined the address.
Exiting the rear of the Trailer, Lathrop held the accordion Trailer door tether with his left hand and stepped his right foot on a small step on the Trailer's right side with his right hand on the Trailer frame. (Id. ¶ 5.) As Lathrop pulled the door and stepped his left foot from the Trailer bed to the Trailer bumper, the small step wobbled and lurched forward, causing Lathrop to lose his balance and fall toward the Trailer. (Id. ¶ 5.) Lathrop caught himself with his right hand on the Trailer bed, but the accordion Trailer door came down hard and fast, crushing his right hand. (Id.) Lathrop sustained several injuries to his right hand, including traumatic crush injury, right third digit proximal phalanx fracture, non-union right fifth metacarpal neck fracture, extensor tendon injury at the fifth proximal interphalangeal joint without retraction, puncture wound in right palm, pin tract infection post-surgery, right finger pain, and right-hand ligamentous injuries. (Id. ¶ 10.) Lathrop underwent several surgical procedures to repair his right hand. (Id. ¶ 11.)
Lathrop reported his injury to Freight's Operations Manager, who determined the injury was caused by equipment failure. (Id. ¶ 6.) The Trailer was sent to a mechanic for repairs and a bolt on the step was tightened. (Id.) The Trailer was in substantially the same condition at the time of its manufacture, distribution, and sale by Wabash to Freight. (Id. ¶ 7.)
Jurisdictional Facts
Wabash is a Delaware corporation with its principal place of business in Lafayette, Indiana. (Compl. ¶ 1(b).) Wabash manufactures, distributes, services, and sells truck trailers and related equipment, some of which is sold, leased, or rented to customers in Oregon. (Id.) FedEx is a Delaware corporation with its principal place of business in Memphis, Tennesee. (Id. ¶ 1(e).) FedEx is the parent company of Freight and other FedEx entities. (Id.) Freight is an Arkansas corporation and employed Lathrop at its facility in Portland, Oregon. (Id. ¶ 1(a).)
Procedural Background
On September 25, 2020, Lathrop filed his action in Multnomah County Circuit Court against Defendants Wabash, FedEx, and TEC Equipment, Inc. (“TEC”). In his Complaint, Lathrop brings claims against Wabash for strict product liability and negligence. Lathrop alleges that Wabash knew or should have known that the right rear step on the back of the Trailer would become loose over time and create a potential hazard. (Compl. ¶ 8.) Lathrop contends that Wabash is strictly liable for manufacturing, designing, inspecting, testing, and selling the Trailer in an unreasonably dangerous and defective condition. (Id. ¶ 9.) Alternatively, Lathrop alleges that he was injured as a result of Wabash's negligence. (Id. ¶¶ 17-19.)
Lathrop brings claims against FedEx for negligence, and two statutory violations, the ELL, ORS 654.310, and the OSEA, ORS 654.005(6). Lathrop asserts that as the parent corporation, FedEx was engaged in a common enterprise with Freight, its subsidiary. (Id. ¶ 27.) Lathrop alleges FedEx had custody and control over his work activity, and that FedEx knew or should have known that injuries occurring while exiting the rear of trailers is a significant source of injuries for delivery drivers operating Freight's vehicles. (Id. ¶¶ 28-29.) Lathrop alleges FedEx is negligent by failing to require routine maintenance and inspection of the step and Trailer, and by failing to adequately supervise and train its workers in accident avoidance. (Id. ¶¶ 37-38, 40-41, 44-49.)
On November 30, 2020, FedEx filed a Motion to Dismiss pursuant to Oregon Rule of Civil Procedure 21. (Notice of Removal at ¶ 3.) On December 16, 2020, Lathrop filed a Notice of Dismissal as to TEC. (Notice of Removal at ¶ 4 &Ex. D, ECF No. 1.) On December 30, 2020, FedEx removed the action to this court based on diversity jurisdiction. At a telephone status conference on January 14, 2021, the court permitted the parties to complete briefing on FedEx's pending motion to dismiss. (Minutes of Proceedings, ECF No. 10.)
Legal Standards
In a motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2), the plaintiff bears the burden to demonstrate that the court's exercise of jurisdiction is proper. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). When resolving such a motion on written materials, rather than after an evidentiary hearing, the court need “only inquire into whether the plaintiff's pleadings and affidavits make a prima facie showing of personal jurisdiction.” Id. (internal quotation and citation omitted). FedEx's personal jurisdiction challenge is based on its written materials, not an evidentiary hearing; thus, Lathrop “need only make a prima facie showing of jurisdictional facts to withstand dismissal.” AMA Mulitmedia, LLC v. Wanat, 970 F.3d 1201, 1207 (9th Cir. 2020); Schwarzenegger, 374 F.3d at 800. Uncontroverted allegations in the Complaint must be taken as true, but Lathrop cannot simply rest on the bare allegations in the complaint. AMA Multimedia, 970 F.3d at 1207; CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1073 (9th Cir. 2011) (“Where not directly controverted, plaintiff's version of the facts is taken as true for the purposes of a 12(b)(2) motion[.]”). “[D]isputed allegations in the complaint that are not supported with evidence or affidavits cannot establish jurisdiction[.]” AMA Multimedia, 970 F.3d at 1207 (citing In re Boon Glob. Ltd., 923 F.3d 643, 650 (9th Cir. 2019). Conflicts between facts contained in declarations or affidavits are resolved in the plaintiff's favor. Mattel, Inc. v. Greiner &Hausser GmbH, 354 F.3d 857, 861-62 (9th Cir. 2003).
Discussion
FedEx moves to dismiss the claims against it due to lack of personal jurisdiction. Lathrop concedes the court does not have general jurisdiction over FedEx. (Pl. Mem. Opp'n at 4, ECF No. 13.) Therefore, the court examines whether Lathrop has established specific personal jurisdiction over FedEx.
I. Specific Personal Jurisdiction
A. Legal Standards
Unless a federal statute governs personal jurisdiction, a district court applies the law of the forum state. See Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008). Oregon's long-arm statute is co-extensive with federal due process standards. Gray &Co. v. Firstenberg Mach. Co., 913 F.2d 758, 760 (9th Cir. 1990) (citing Or. R. Civ. P. 4(L)); Ranza v. Nike, Inc., 793 F.3d 1059, 1063 (9th Cir. 2015); Wallace v. Holden, 297 Or.App. 824, 834 (2019) (discussing personal jurisdiction under Oregon law must comport with federal due process). Thus, the court need determine only whether its exercise of personal jurisdiction over FedEx would offend constitutional due process requirements. Gray, 913 F.2d at 760; Harris Rutsky &Co. Ins. Servs., Inc. v. Bell &Clements Ltd., 328 F.3d 1122, 1129 (9th Cir. 2003); Climax Portable Mach. Tools, Inc., v. Trawena GmbH, Case No. 3:18-cv-1825-AC, 2020 WL 1304487, at *1 (D. Or. Mar. 19, 2020).
Due process requires that the 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.'” Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (citations omitted); Picot v. Weston, 780 F.3d 1206, 1211 (9th Cir. 2015). To satisfy due process requirements, defendants in a civil action must have a requisite level of minimum contacts with a forum state. Bristol-Myers Squibb Co. v. Superior Court of Cal., 137 S.Ct. 1773, 1779 (2017) (“BSM”). Minimum contacts may be shown by a defendant's continuous and systematic general business contacts with a forum state (general jurisdiction), or if a defendant has sufficient contacts arising from or related to specific transactions or activities within the forum state (specific jurisdiction). BSM, 137 S.Ct. at 1780; Schwarzengger, 374 F.3d at 800-02.
“The inquiry whether a forum State may assert specific jurisdiction over a nonresident defendant ‘focuses on the relationship among the defendant, the forum, and the litigation.'” Axiom Foods, Inc. v. Acerchem Int'l, Inc., 874 F.3d 1064, 1068 (9th Cir. 2017) (quoting Walden v. Fiore, 571 U.S. 277, 287 (2014)); BSM, 137 S.Ct. at 1780; see also Robinson v. Harley-Davidson Motor Co., 354 Or. 572, 579 (2013) (providing that Oregon applies federal due process standards to determine specific jurisdiction). The Ninth Circuit applies a three-part inquiry to assess whether a defendant has sufficient contacts with the forum to warrant the court's exercise of jurisdiction:
(1) 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;
(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.Schwarzenegger, 374 F.3d at 802; Freestream Aircraft (Bermuda) Ltd. v. Aero Law Grp., 905 F.3d 597, 603 (9th Cir. 2018). Lathrop bears the burden of satisfying the first two prongs. Climax Portable, 2020 WL 1304487, at *2. If he does so, then FedEx bears the burden of presenting a “compelling case” that “the exercise of jurisdiction would not be reasonable.” Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-77 (1985)); Freestream Aircraft, 905 F.3d at 607.
The first prong requires Lathrop to show that FedEx either “purposefully directed his activities” toward Oregon, or “purposefully availed himself” of the privilege of conducting business in Oregon. Axiom, 874 F.3d at 1068; Robinson, 354 Or. 579. The purposeful direction test, often called the “effects” test, derives from Calder v. Jones, 465 U.S. 783 (1984). The purposeful availment test typically “is satisfied if the defendant has taken deliberate action within the forum state.” Freestream Aircraft, 905 F.3d at 604 (citation and internal quotation omitted). “The exact form of our jurisdictional inquiry depends on the nature of the claim at issue.” Picot, 780 F.3d at 1212. While often confused, purposeful availment and direction are distinct concepts. Schwarzenegger, 374 F.3d at 802; Columbia Sportswear N. Am., Inc. v. Seirus Innovative Accessories, Inc., 454 F.Supp.3d 1040, 1046 (D. Or. 2020); Climax Portable, 2020 WL 1304487, at *2. Generally, purposeful availment analysis applies to actions “sounding in contract, ” and purposeful direction applies to actions “sounding in tort.” Schwarzenegger, 374 F.3d at 802.
In this action, Lathrop's claims against FedEx are premised on negligence and statutory violations. Because the instant dispute does not concern intentional tortious conduct, the court applies the purposeful availment test. See Holland Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 460 (9th Cir. 2007) (“[I]t is well established that the Calder test applies only to intentional torts, not to the breach of contract and negligence claims presented here.”); see also Burton v. Air France-KLM, Case No. 3:20-cv-01085-IM, 2020 WL 7212566, at *3 (D. Or. Dec. 7, 2020) (applying purposeful availment test where plaintiff alleged claims for personal injuries sustained while traveling on defendant's flight); Hernandez v. City of Beaumont, No. EDCV 1300967 DDP, 2014 WL 6943881, at *3 (C.D. Cal. Dec. 8, 2014) (“Here, the City's claims are based on negligence and products liability, not intentional torts. Thus, the Court will apply the more general purposeful availment analysis.”).
Even if the purposeful direction test were applicable, Lathrop has not demonstrated that FedEx committed an intentional act expressly aimed Lathrop, whom FedEx knew was a resident of Oregon. See Calder, 465 U.S. at 789 (observing that to find an act “expressly aimed, ” the Supreme Court requires “something more”).
The purposeful availment analysis examines whether a defendant has “purposefully availed himself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Picot, 780 F.3d at 1212. The court looks to “whether the defendant's contacts with the forum are attributable to his own actions or are solely the actions of the plaintiff.” Sinatra v. National Enquirer, Inc., 854 F.2d 1191, 1195 (9th Cir. 1988). Courts often consider whether a defendant “perform[s] some type of affirmative conduct which allows or promotes the transaction of business within the forum state.” Id.; Pulse Health LLC v. Akers Biosciences, Inc., No. 3:16-cv-01919-HZ, 2017 WL 1371272, at *10 (D. Or. Apr. 14, 2017); see also Walden, 571 U.S. at 284 (noting that the contacts must arise out of contacts the defendant creates). Purposeful availment “typically consists of evidence of the defendant's actions in the forum, such as executing or performing a contract there.” Schwarzenegger, 374 F.3d at 802; see also Burger King, 471 U.S. at 475-76 (finding purposeful availment where a defendant “deliberately engaged in significant activities within a State” or “has created continuing obligations between himself and residents of the forum.”).
B. Analysis: Purposeful Availment
FedEx argues that Lathrop cannot establish specific jurisdiction because he has not made a prima facie showing that FedEx has deliberately engaged in significant activities in Oregon or has created continuing obligations between itself and Oregon residents. FedEx highlights that Lathrop points to no evidence establishing significant activity between it and Oregon residents or that his injuries arose out of FedEx's alleged forum-related activities. According to FedEx, Lathrop's argument is premised solely on FedEx's parent-subsidiary relationship with Freight, which is insufficient to establish specific jurisdiction. FedEx is correct.
Lathrop argues that FedEx is a global brand, and that it is involved in its subsidiary businesses in way that goes beyond investor status to sufficiently confer specific personal jurisdiction. (Pl. Mem. Opp'n at 16.) However, the evidence Lathrop cites consists of publicly available resources that fail to establish the necessary minimum contacts with Oregon. For example, Lathrop cites to FedEx's Securities and Exchange Commission Form 10-K, and FedEx's “Corporate Fact Sheet, ” and “Mission &Goals” statements available on FedEx's website. See Decl. J. Randolph Pickett (“Pickett Decl.”) Exs. B - D, ECF No. 14.) Lathrop contends that in 2020, FedEx “began directing U.S. day-definite, residential FedEx Express shipments into the FedEx Ground network in order to optimize the costs of last-mile residential deliveries.” (Pl. Mem. Opp'n at 16.) Lathrop highlights that in its corporate statements, FedEx describes its efforts to increase its fuel efficiency and revolutionize its trucking fleet. (Id. at 17; Pickett Decl. Ex. B at 16, Ex. C at 17.) And, Lathrop asserts that FedEx is “subject to numerous legal proceedings” and that FedEx is the entity that “responds to these various types of legal claims - including claims relating to FedEx Ground - rather than the individual subsidiary.[]” (Pl. Mem. Opp'n at 18 (footnote omitted).) The information and resources Lathrop cites fail to show FedEx's specific contact within Oregon.
As FedEx points out, it is not resident in Oregon, is not authorized to do business in Oregon, does not employ any personnel in Oregon, and does not own real property in Oregon. (Decl. Jennifer DeSouza (“DeSouza Decl.”), Ex. B ¶ 4, ECF No. 12 at 23.) Lathrop cites no evidence in its supporting materials that contradicts these factual assertions.
In the Complaint, Lathrop pleads that FedEx is engaged in a common enterprise with Freight, and that FedEx exercises actual control over Freight and its employees. (Compl. ¶¶ 2728.) The record here, however, shows that FedEx acts as a parent corporation of Freight by providing strategic direction to Freight, and that it does not manage day-to-day operational activities, or day-to-day control over Freight's business operations or Freight's employment decisions. (Decl. Shahram A. Eslami (“Eslami Decl.”), Ex. A ¶ 4, ECF No. 12 at 21.) Moreover, FedEx provides that it does not own, maintain, schedule, or operate any trucks or trailers in Oregon, and further provides that it does not establish or enforce safety, maintenance, or inspection standards or protocols for trucks or trailers in Oregon. (DeSouza Decl. ¶¶ 6-7.)
Lathrop presents no evidence to support its contention that FedEx exercised control over Freight's facility, trucks, trailers, or employees. Again, Lathrop's evidence consists solely of allegations that FedEx provides strategic leadership, quality driven management, protection of its brand, and revolution of its vehicle fleet based on information extracted from public websites and filings and amounts to little more than bare assertions. AMA Multimedia, 970 F.3d at 1207 (recognizing the prima facie standard is “not toothless” and that a plaintiff cannot rest simply on allegations in the complaint) (citation omitted); Ranza, 793 F.3d at 1067 (“[a] plaintiff may not rest on the bare allegations of the complaint” to defeat a Rule 12(b)(2) motion) (internal quotation and citation omitted). Accordingly, the court finds that Lathrop has not satisfied his burden to make a prima facie showing that FedEx purposefully availed itself of doing business in Oregon.
C. Analysis: No Alter Ego Or Agency
Lathrop also has not demonstrated that Freight's actions should be imputed to FedEx through an alter ego theory or an agency theory of specific personal jurisdiction. For purposes of general jurisdiction, the Ninth Circuit has recognized that “[t]he existence of a parent-subsidiary relationship is insufficient, on its own, to justify imputing one entity's contacts with a forum state to another for the purpose of establishing personal jurisdiction.” Ranza, 793 F.3d at 1070 (citing Doe v. Unocal, 248 F.3d 915, 925-26 (9th Cir. 2001), abrogated on other grounds by Williams v. Yamaha Motor Co., 851 F.3d 1015 (9th Cir. 2017)) (discussing general personal jurisdiction). Agency and alter ego theories may provide limited exceptions for demonstrating specific personal jurisdiction in parent-subsidiary relationships. See Daimler AG v. Bauman, 571 U.S. 117, 13536 &n.13 (2014) (observing that agency relationships may be relevant to specific jurisdiction, but that agency test could not establish general personal jurisdiction); Williams v. Yamaha Motor Co., 851 F.3d 1015, 1024-25 (9th Cir. 2017) (discussing that Daimler “left open the question of whether an agency relationship might justify the exercise of specific jurisdiction); Billups, Inc. v. Ambassador Tech., Inc., Case No. 3:20-cv-00891-BR, 2021 WL 765702, at *6-7 (D. Or. Feb. 26, 2021) (discussing whether plaintiff established specific jurisdiction under agency theory); Apple Inc. v. Allan &Assocs. Ltd., 445 F.Supp.3d 42, 51-52 (N.D. Cal. 2020) (discussing specific personal jurisdiction under alter ego and agency theories).
To satisfy the alter ego test, a plaintiff must make out a prima facie case “(1) that there is such unity of interest and ownership that the separate personalities of the two entities no longer exist and (2) that failure to disregard their separate identities would result in fraud or injustice.” Ranza, 793 F.3d at 1073 (quotations and alterations omitted). The “unity of interest and ownership” prong requires a plaintiff to show that the parent controls the subsidiary to such a degree that the subsidiary is merely an instrumentality of the parent. Id.; Unocal, 248 F.3d at 926. This requires demonstrating that the parent corporation “dictates every facet of the subsidiary's business - from broad policy decisions to routine matters of day-to-day operation.” Ranza, 793 F.3d at 1073 (quotation and citation omitted). An active parent corporation's involvement in some of the subsidiary's decision-making, such as acquisitions, expenditures, business strategies, and providing financing is insufficient to negate their separate personalities. Id. at 103-74; Doe v. Unocal, 248 F.3d at 928; see also Bates v. Bankers Life and Cas. Co., 993 F.Supp.2d 1318, 1339 (D. Or. 2014) (holding that parent corporation's oversight of marketing activities of subsidiary and reliance on parent's human resources services did not show sufficient control under alter ego theory necessary to establish specific personal jurisdiction); Apple Inc., 445 F.Supp.3d at 52 (discussing that courts consider commingling of funds, domination and control of entities, failure to adequately capitalize when considering unity of interest under alter ego theory).
Lathrop fails to make a prima facie showing that FedEx is the alter ego of Freight such that this court has specific personal jurisdiction over FedEx. Lathrop cites no evidence suggesting any unity of interest or control between FedEx and Freight. Lathrop cites no evidence that FedEx and Freight routinely disregard their corporate formalities, that FedEx controls “every facet” of Freight's business, or that FedEx uses Freight as a shield against liability. See Apple Inc., 445 F.Supp.3d at 53-55 (discussing that businesses were distinct and there was no evidence that records or funds were commingled); Bates, 993 F.Supp.2d at 1339 (finding plaintiff did not allege facts to hold setting out facts demonstrating that interconnectedness of companies, that subsidiary was established for purpose of shielding liability). Lathrop identifies no overlapping corporate officers, no commingling of assets, and presents no suggestion of corporate malfeasance. Thus, Lathrop has not demonstrated that the court should exercise specific personal jurisdiction over FedEx under an alter ego theory.
Similarly, Lathrop fails to demonstrate specific personal jurisdiction over FedEx on an agency theory. To do so, Lathrop must have shown that FedEx exercises control of the subsidiary's internal affairs or daily operations. Williams, 851 F.3d at 1024-25 (observing that “[f]undamental tenets of agency theory” would require showing that the parent has the right to substantially control the subsidiary). As discussed above with respect to alter ego, Lathrop's evidence fails to show that FedEx exerts the kind of day-to-day operational control over Freight to establish specific personal jurisdiction under this theory. Apple Inc., 445 F.Supp.3d at 56 (finding plaintiff failed to show parent exercised pervasive control over subsidiary's internal affairs and daily operations); Bates, 993 F.Supp.2d at 1339 (finding plaintiffs failed to show that parent corporation exerted sufficient levels of control, observing that “garden-variety forms of agency are insufficient to satisfy the jurisdictional agency standard”); see also Billups, 2021 WL 765702, at *7 (finding plaintiff failed to show that parent was authorized to sign contracts and did not establish agency relationship sufficient to establish specific personal jurisdiction). Indeed, the only evidence in the record is to the contrary. (Eslami Decl. ¶ 4 (providing that FedEx “does not manage day-to-day operational activities” and “does not exercise day-to-day control over the business operations or employment decisions” of Freight).)
Finally, in his briefing, Lathrop relies on several out-of-circuit and out-of-district cases which discuss specific jurisdiction in stream-of-commerce situations. See, e.g., Ainsworth v. Moffett Eng'g, Ltd., 716 F.3d 174, 178 (5th Cir. 2013). The Supreme Court “has stated that a defendant's placing goods into the stream of commerce ‘with the expectation that they will be purchased by consumers within the forum State' may indicate purposeful availment.” J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 881-82 (2011) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 298 (1980)). However, the “transmission of goods permits the exercise of jurisdiction only where the defendant can be said to have targeted the forum; as a general rule, it is not enough that the defendant might have predicted that its goods will reach the forum State.” Id.
Lathrop's reliance on these cases is misplaced for two primary reasons. First, Lathrop's Complaint asserts that he was injured due to a faulty step on a trailer manufactured by Wabash, not by FedEx. Therefore, Lathrop was not injured by a product placed into the stream-of-commerce by FedEx. Second, as noted above, Lathrop does not counter FedEx's evidence that it does not establish or enforce safety, maintenance, or inspection standards or protocols for trucks or trailers in Oregon. (DeSouza Decl. ¶ 6.) Thus, Lathrop's cases are readily distinguishable and do not support a finding that FedEx's actions warrant the court's exercise of specific jurisdiction here.
In summary, Lathrop has not shown that FedEx engaged in substantial activities in Oregon to establish purposeful availment. Likewise, Lathrop has failed to show that FedEx and Freight have negated their formal parent-subsidiary relationship, or that FedEx exercises substantial, pervasive control over Freight to justify this court's exercise of specific personal jurisdiction under an alter ego or agency theory. Consequently, Lathrop has not established the first prong of the specific jurisdiction analysis.
D. Arising Out of or Relating to FedEx's Forum Contacts
“Under the second prong of [the specific] jurisdiction analysis, the plaintiff's claim must be one which arises out of or relates to the defendant's forum-related activities.” Menken v. Emm, 503 F.3d 1050, 1058 (9th Cir. 2007). When “determining whether [a plaintiff's] claims arise out of [a defendant's] forum-related conduct, the Ninth Circuit follows the ‘but for' test.” Id. (citation omitted). Here, Lathrop must show that he would not have suffered an injury “but for” FedEx's forum-related conduct. Id. As discussed above, Lathrop does not identify any FedEx activity in Oregon that gave rise to his alleged injury. Lathrop presents no evidence challenging FedEx's evidence that it does not own, maintain, schedule, or operate any trucks or trailers in Oregon, and does not establish or enforce any safety, maintenance or inspection standards for trucks and trailers in Oregon. (Desouza Decl. ¶ 6.) Lathrop also does not contradict FedEx's evidence that Freight owned, maintained, scheduled, and operated the truck driven by Lathrop at the time of his injury. Accordingly, the court concludes on this record that Lathrop's claims against FedEx do not arise out of nor are they related to any activity between Lathrop and FedEx in Oregon.
E. Reasonable and Fair to Assert Jurisdiction
Because the court concludes Lathrop has not met his burden as to either of the first two factors required to establish specific jurisdiction over FedEx, the court need not address the third factor. See, e.g., Schwarzenegger, 374 F.3d at 802 (“If the plaintiff fails to satisfy either of the[ ] [first two] prongs, personal jurisdiction is not established in the forum state.”).
II. Jurisdictional Discovery
Lathrop requests that the court allow limited jurisdictional discovery to determine whether FedEx is subject to personal jurisdiction in this court. Jurisdictional discovery “should ordinarily be granted where pertinent facts bearing on the question of jurisdiction are controverted or where a more satisfactory showing of the facts in necessary.” Laub v. U.S. Dep't of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) (quoting Butcher's Union Local No. 498 v. SDC Inv., Inc., 788 F.2d 535, 540 (9th Cir. 1986)). “‘Where a plaintiff's claim of personal jurisdiction appears to be both attenuated and based on bare allegations in the face of specific denials made by the defendants, the Court need not permit even limited discovery[.]'” Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1160 (9th Cir. 2006) (quoting Terracom v. Valley Nat'l Bank, 49 F.3d 555, 562 (9th Cir. 1995)).
Here, Lathrop's allegations that FedEx may be subject to personal jurisdiction appears based on pure speculation about FedEx's corporate structure. Lathrop has not demonstrated that limited jurisdictional discovery will yield any facts that would render FedEx subject to specific jurisdiction in this action. Boschetto, 539 F.3d at 1020 (holding court did not abuse discretion in denying jurisdictional discovery where request was based on “little more than a hunch that it might yield jurisdictionally relevant facts”). Accordingly, the court recommends that Lathrop's request for limited jurisdictional discovery be denied.
Conclusion
Based on the foregoing, the court recommends that FedEx's Motion to Dismiss for Lack of Personal Jurisdiction (ECF No. 12) be GRANTED, and FedEx be dismissed without prejudice. Koster v. Harris, 847 F.3d 646, 656 (9th Cir. 2017); Freeman v. Oakland Unified Sch. Dist., 179 F.3d 846, 847 (9th Cir. 1999).
Scheduling Order
The Findings and Recommendation will be referred to a district judge for review. Objections, if any, are due within fourteen (14) days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.