Opinion
Civil No. 02-39-HA
June 12, 2002
OPINION AND ORDER
The plaintiff in this diversity action has alleged claims for breach of contract, defamation, unfair trade practices, and unfair debt collection. Presently before the court is a motion to dismiss for lack of personal jurisdiction filed by defendants Tillia Williams, E. Pope, and T. Ellis.
Ms. Williams first name should be spelled Tilia, and will be spelled correctly hereinafter. Ms. Emily Pope has married and now goes by her married name, Emily Cross. For clarity she will be referred to hereinafter by her maiden name.
BACKGROUND
The plaintiff had an American Express credit card. During the year 2000, the plaintiff's card was used to make purchases which resulted in an outstanding balance of approximately $200,000. The plaintiff was CEO of Hannah Sherman International, Inc. (HSI), and apparently used his personal credit for the benefit of HSI. He was concerned that an adverse credit report would have a negative effect on him and HSI. In an effort to avoid that result, the plaintiff had his secretary at HSI call defendant American Express (AMEX) for the purpose of arranging some payment schedule satisfactory to both parties which would avoid any negative credit reporting by AMEX.The record contains e-mails from the secretary to the plaintiff that reflect a series of telephone conversations with Tilia Williams. The e-mails contain terms for an agreement, but note that the plaintiff must speak directly with Williams before any agreement could be made. Apparently the plaintiff did so, and an agreement was reached by October 1, 2000.
Williams lives in Florida. She has worked for AMEX for years, and her responsibilities now include talking with customers who have large outstanding balances or delinquent accounts. She has no contacts with Oregon other than her few phone calls in the Lozano matter and perhaps, over the years, other conversations with Oregon residents on behalf of her employer. However, she does not specifically remember any other conversations with Oregon residents.
The terms of the agreement between Lozano and AMEX are disputed. The plaintiff claims that he performed under the agreement, but that AMEX breached the agreement by issuing some sort of adverse credit reports or statements. AMEX claims that the plaintiff did not perform according to the terms of the agreement. It sent a form letter to Lozano dated November 21, 2000, informing him that his account was past due and being reviewed for further collection activity. The form letter included the name "E.Pope" in the signature line. In 1993, Emily Pope worked in the AMEX automation department, and apparently worked on a computer program that was used to generate the form letter. The letter bears her name, although she had no direct contact with the plaintiff, did not review the plaintiff's account, and at the relevant time was apparently working in another department. Further, she lives in Arizona and has no contacts with Oregon.
Plaintiff discontinued his payments when he believed that AMEX had breached the agreement, but he continued to offer to perform contingent on performance by AMEX. The plaintiff sent at least one letter to AMEX, and a responsive letter was sent on January 18, 2001. That letter acknowledged the plaintiff's inquiry and informed him that his account had been assigned to a collection agency. The letter was signed by Tom Ellis. Ellis has lived in Florida for the past 48 years, has never been to Oregon or had other contacts with Oregon except, like Williams, he possibly could have had some correspondence with an Oregon resident on behalf of American Express at some time during his 21 years of employment with AMEX.
STANDARD OF REVIEW
The plaintiff has the burden of establishing that the court has authority to exercise in personam jurisdiction over each of the named defendants. Doe v. Unocal Corporation, 248 F.3d 915, 922 (9th Cir. 2001). Personal jurisdiction must be evaluated against each defendant separately. Sher v. Johnson, 911 F.2d 1357, 1366 (9th Cir. 1990).
To determine whether personal jurisdiction exists, the court may consider the pleadings and evidence presented through affidavits. Id. The court may also order limited discovery to develop jurisdictional facts. Id.; Data Disc, Inc. v. Systems Technology Associates, 557 F.2d 1280, 1285 (9th Cir. 1977).
Initially, the plaintiff need only make a prima facie showing that personal jurisdiction exists, that is, he must produce sufficient evidence which, if believed, would establish the necessary jurisdictional facts. When the jurisdictional facts of the case are intertwined with the merits, the a motion to dismiss should usually be denied. Data Disc, 557 F.2d at 1285.
Evidence relevant to the issue of personal jurisdiction consists of the nature of the contacts that the nonresident defendants have with the forum state. Burger King v. Rudzewicz, 471 U.S. 462, 477-78 (1985). Only contacts occurring prior to the event causing the litigation may be considered in determining if personal jurisdiction is present. Steel v. U.S., 813 F.2d 1545, 1549 (9th Cir. 1987). Because the Oregon "long arm" statute reaches as far as the Due Process Clause, the court must only consider whether the exercise of personal jurisdiction meets federal due process standards. Millennium Enterprises, Inc. v. Millennium Music, LP, 33 F. Supp.2d 907, 909 (D.Or. 1999).
The Ninth Circuit has developed the following three-part test to determine whether a defendant has had the necessary minimum contacts with the forum state to establish limited personal jurisdiction consistent with due process:
(1) The nonresident defendant must do some act or consummate some transaction with the forum 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 results from the defendant's forum-related activities; and
(3) exercise of jurisdiction must be reasonable.
Omeluk v. Langsten Slip Batbyggeri A/S, 52 F.3d 267, 270 (9th Cir. 1995); see also Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 416 (9th Cir. 1997). If any of the three requirements are not satisfied, then jurisdiction in the forum would deprive a defendant of due process of law. However, even a single act may support limited personal jurisdiction if it creates a substantial connection with the forum state. McGee v. International Life Ins. Co., 355 U.S. 220 (1957).
1. Purposeful Availment
The requirement of purposeful availment ensures that a defendant cannot be sued in a jurisdiction based on only fortuitous or attenuated contacts with that jurisdiction. Burger King, 471 U.S. at 475. A defendant's conduct and connection with the forum state must be such that the defendant can reasonably anticipate being haled into court there. Id. at 474. "Purposeful availment analysis examines whether the defendant's contacts with the forum are attributable solely 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).
Therefore, a defendant "must have performed some type of affirmative conduct which allows or promotes the transaction of business within the forum state." Id.
2. Substantial Connection
If purposeful availment is satisfied, then this element likely is also satisfied. The Ninth Circuit applies a "but for" test to determine whether the link between a defendant's forum-related activities and the plaintiffs' injury is substantial. Only very attenuated connections fail this test. Doe v. American Red Cross, 112 F.3d 1048 (9th Cir. 1997); Gray Co. v. Firstenberg Machinery Co., 913 F.2d 758 (9th Cir. 1990).
3. Reasonableness
There are seven factors to consider when deciding whether an exercise of jurisdiction is reasonable. Burger King, 471 U.S. at 476-77. No one factor is dispositive. Rather, the court must balance all seven. Core-Vent Corporation v. Nobel Industries, AB, 11 F.3d 1482 (9th Cir. 1994). The factors are: (1) The extent of defendant's "purposeful" interjection; (2) The burden on defendant in defending in the forum; (3) The extent of conflict with the sovereignty of the defendant's state; (4) The forum state's interest in adjudicating the dispute; (5) The most efficient judicial resolution of the controversy; (6) The importance of the forum to plaintiffs' interest in convenient and effective relief; and, (7) The existence of an alternative forum.
DISCUSSION 1. Defendants Pope and Ellis
It is clear that defendants Pope and Ellis did not purposefully avail themselves of the Oregon forum. Ellis's contact with Oregon appears to consist of his sending a perfunctory letter through which he responded to the plaintiff's inquiry about the status of an account, and Pope arguably had no contact at all with Oregon. Further, whatever contacts these two defendants had with Oregon were initiated by the plaintiff. Sinatra, 854 F.2d at 1195. Finally, these contacts are attributable to the employer rather than the individual employees under the fiduciary shield doctrine. See Lehigh Valley Industries, Inc. v. Birenbaum, 527 F.2d 87 (2nd Cir. 1975); Colt Studio, Inc., v. Badpuppy Enterprises, 75 F. Supp.2d 1104, 1111 (C.D.Cal. 1999); Weller v. Cromwell Oil Co., 504 F.2d 927 (6th Cir. 1974). Therefore, this court does not have personal jurisdiction over defendants Pope and Ellis.
Even if the fiduciary shield doctrine did not apply, these few contacts would not support a finding of purposeful availment. Further, the plaintiff has also failed to make a prima facie showing that either of these defendants' contacts had a substantial connection to his alleged injury, or that exercise of personal jurisdiction over these defendants would be reasonable.
2. Defendant Tilia Williams
Defendant Williams is different from Pope and Ellis in that she had repeated contacts with Lozano which resulted in the disputed agreement. Whether her contacts are attributable to her or to her employer could be dependent on her participation in reaching the agreement with the plaintiff. See Davis v. Metro, 885 F.2d 515 (1989). Therefore, it is possible that the issue of personal jurisdiction is entwined with the merits of the case. See Data Disc, 557 F.2d at 1285. Therefore, Williams' motion to dismiss is denied at this time. However, it is possible that it may be appropriate for the defendant to renew her motion after further discovery.CONCLUSION
The defendants' motion (#12) to dismiss for lack of personal jurisdiction is granted as to defendants Pope and Ellis, and denied as to defendant Williams.