KRONSTADT, District Judge:
K. Layne Morrill ("Morrill"), an attorney who resides in Arizona, and the law firm where he practices, Morrill & Aronson, P.L.C. ("Morrill & Aronson"), which is also located in Arizona (collectively "Plaintiffs"), brought claims in the District of Arizona for abuse of process and wrongful institution of civil proceedings. The complaint named five defendants. The District Court dismissed the action, concluding that there was no personal jurisdiction over any defendant. Plaintiffs appealed. We affirm.
In December 2008, Plaintiffs began representing Gary Tharaldson (a Nevada resident), Club Vista Financial Services, L.L.C. (a Nevada corporation whose principal place of business is in Nevada), and Tharaldson Motels, II, Inc. (a North Dakota corporation whose principal place of business is in Nevada) (collectively "Tharaldsons") in connection with a failed condominium construction project in Las Vegas, Nevada. In January 2009, the Tharaldsons filed a civil action in the Eighth District Court of Clark County, Nevada ("Tharaldson Litigation"), in which Plaintiffs were counsel. Through that action, the Tharaldsons sought to be relieved of obligations associated with their previous guaranty of a $100 million construction loan made in connection with the condominium project. Plaintiffs continued to represent the Tharaldsons in that litigation until June 2011.
The defendants in the Tharaldson Litigation were Scott Financial Corporation ("Scott Financial") (a North Dakota Corporation with its principal place of business in Nevada) and its sole shareholder
Plaintiffs claim that, during the Tharaldson Litigation, Defendants "engaged in a campaign to harm [Plaintiffs]" in retaliation for their role as counsel to the Tharaldsons. The first step in this alleged campaign occurred in October 2010, which was five months before the scheduled trial date. At that time, the Scott Parties sought to depose Morrill and his partner, Martin Aronson. As part of that process, the Scott Parties commenced companion civil proceedings in an Arizona Superior Court seeking to obtain a separate deposition subpoena for each witness. At that time, these civil proceedings were required by Arizona Rule of Civil Procedure 30(h) when an out-of-state party sought to depose a person who resided in Arizona. Ariz. R. Civ. P. 30(h) (2010) (deleted August 30, 2012, effective January 1, 2013).
An Arizona Superior Court issued the requested subpoenas, and Morrill and Aronson were served. Morrill and Aronson then brought a motion to quash the subpoenas in the Arizona Superior Court. They argued that the "true purpose in taking the depositions ... was to pry into what [Plaintiffs] had learned about the [Tharaldson] case and to obtain privileged information and to attempt to drive a wedge between [Plaintiffs] and their clients" in that litigation. Jones was admitted pro hac vice in Arizona so that he could participate in the proceedings with respect to the motion to quash. The Scott Parties filed an opposition to the motion, and Jones appeared at the hearing on the motion that was held in the Arizona Superior Court. At the conclusion of the hearing, the Superior Court judge granted the motion. However, that order was without prejudice to having the issue reviewed and decided de novo by the Special Discovery Master in Nevada who was overseeing discovery disputes in the Tharaldson Litigation. As the Superior Court judge explained, "I want the minute entry to reflect that this Court does not intend in any way to suggest to Floyd A. Hale, Special Master, what he ought to rule with regard to the matters which will finally be briefed [for] him on December 3rd, 2010."
The Scott Parties then provided Special Master Hale with Plaintiffs' motion to quash and their response that had been filed in the Arizona Superior Court. Special Master Hale denied the motion to quash and ruled that the depositions of Morrill and Aronson could proceed. Plaintiffs appealed that order through the Nevada courts, including to the Nevada Supreme Court. The Nevada Supreme Court held that the depositions could proceed if the Scott Parties successfully demonstrated that "(1) no other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and non-privileged; and (3) the information is crucial to the preparation of the
In April 2011, the Scott Parties brought a defamation action against Plaintiffs in a Nevada court. It was based on alleged statements made by Plaintiffs to a Nevada mortgage lender during the course of discovery in the Tharaldson Litigation. The Scott Parties effected service of the complaint on Plaintiffs in Arizona. Plaintiffs argued that the action was without merit in light of the broad litigation privilege that applies under Nevada law to statements made during a pending judicial proceeding. After the Scott Parties declined to dismiss the action voluntarily, Plaintiffs moved for summary judgment. Their motion was granted. The Nevada Supreme Court affirmed that ruling.
In May 2011, Jones filed a grievance with the Nevada State Bar "alleging that Morrill acted unethically and unprofessionally." The Screening Panel of the Nevada State Bar decided not to initiate disciplinary proceedings against Morrill, and dismissed the complaint without prejudice.
In June 2011, the Tharaldsons elected to retain new counsel to represent them in the Tharaldson Litigation. Plaintiffs contend that the aforementioned conduct of Defendants "was a factor that contributed to the ... decision to retain new trial counsel."
Based on the foregoing alleged conduct, Plaintiffs brought the present action in the District of Arizona. As noted, it advances claims against Defendants for abuse of process and wrongful institution of civil proceedings. As also noted, Defendants moved to dismiss the complaint for lack of personal jurisdiction. The District Court granted the motion, concluding that there was no personal jurisdiction over any of the Defendants.
II. STANDARD OF REVIEW
We review dismissals for lack of personal jurisdiction de novo. Wash. Shoe Co. v. A-Z Sporting Goods Inc., 704 F.3d 668, 671 (9th Cir. 2012). When a defendant moves to dismiss for lack of personal jurisdiction, "the plaintiff bears the burden of demonstrating that jurisdiction is appropriate." Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). Because no evidentiary hearing occurred in this action, "the plaintiff need only make a prima facie showing of jurisdictional facts." Id. (quoting Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990)). All uncontroverted allegations in the complaint are deemed true, and factual disputes are to be resolved in favor of the nonmoving party. Id.
A. Standards for Establishing Personal Jurisdiction
"Federal courts ordinarily follow state law in determining the bounds of their jurisdiction over persons." Daimler AG v. Bauman, ___ U.S. ___, 134 S.Ct. 746, 753, 187 L.Ed.2d 624 (2014). Arizona law permits the exercise of personal jurisdiction to the extent permitted under the United States Constitution. See Ariz. R. Civ. P. 4.2(a). Therefore, the determination whether the District Court had personal jurisdiction over Defendants is subject to the terms of the Due Process Clause of the Fourteenth Amendment.
Constitutional due process requires that defendants "have certain minimum contacts" with a forum state "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, 66 S.Ct. 154, 90 S.Ct. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 S.Ct. 278
Plaintiffs do not contend that Defendants are subject to general jurisdiction in Arizona. Instead, they argue that Defendants are subject to specific jurisdiction there. We apply a three-part test to determine whether a defendant has sufficient contacts to be subject to specific personal jurisdiction:
Id. at 802 (quoting Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987)). "The plaintiff bears the burden of satisfying the first two prongs of the test. If the plaintiff fails to satisfy either of these prongs, personal jurisdiction is not established in the forum state." Id. (citation omitted). "If the plaintiff succeeds in satisfying both of the first two prongs, the burden then shifts to the defendant to `present a compelling case' that the exercise of jurisdiction would not be reasonable." Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-78, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)).
B. Defendants' Actions Were Not Purposefully Directed at Arizona
Under the first prong of the test for specific personal jurisdiction, Plaintiffs must show that Defendants purposefully directed their activities toward Arizona, or purposefully availed themselves of the privilege of conducting activities there. We generally apply the purposeful availment test when the underlying claims arise from a contract, and the purposeful direction test when they arise from alleged tortious conduct. Id. at 802. The latter test applies here given the nature of the underlying claims.
Purposeful direction "requires that the defendant ... have (1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state." Id. at 803 (quoting Dole Food Co. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002)). Actions may be directed at the forum state even if they occurred elsewhere. Id. However, "random, fortuitous, or attenuated contacts" are insufficient to create the requisite connection with the forum. Burger King, 471 U.S. at 475, 105 S.Ct. 2174 (internal quotation marks omitted). An intentional act is one "denot[ing] an external manifestation of the actor's will ... not includ[ing] any of its results, even the most direct, immediate, and intended." Wash. Shoe, 704 F.3d at 673-74 (quoting Schwarzenegger, 374 F.3d at 806).
Plaintiffs claim that Defendants engaged in conduct that was sufficient to show that they "committed an intentional act" expressly aimed at the forum state of Arizona. That conduct included the following:
As the Supreme Court stated in Walden v. Fiore, ___ U.S. ___, 134 S.Ct. 1115, 1126, 188 L.Ed.2d 12 (2014), the "mere fact that [a defendant's] conduct affected plaintiffs with connections to the forum State does not suffice to authorize jurisdiction." Instead, two factors are considered in determining whether an action is expressly aimed at the forum state:
Id. at 1122 (citations omitted).
In Walden, an agent of the federal Drug Enforcement Administration seized $97,000 in cash from two professional gamblers at an airport in Atlanta, Georgia. The gamblers were citizens of Nevada. Thereafter, the agent assisted in drafting an allegedly fraudulent affidavit in support of the claim of probable cause for the seizure. Id. at 1120. The gamblers brought a Bivens action
The Supreme Court reversed in a unanimous decision. The Court concluded that the agent had not expressly targeted the state of Nevada. He had "never traveled to, conducted activities within, contacted anyone in, or sent anything or anyone to Nevada," and for these reasons had "formed no jurisdictionally relevant contacts with Nevada." Id. at 1124. The Court added that the alleged harm was not sufficiently linked to Nevada. The gamblers "would have experienced this same lack of access [to the confiscated funds] in California, Mississippi, or wherever else they
Walden distinguished Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), in which the Court affirmed a finding of personal jurisdiction in California over two Florida residents. Those defendants had written and edited an allegedly libelous article about a California resident that was published in the National Enquirer. Id. at 783, 104 S.Ct. 1482. Although that publication was circulated throughout the country, the Court found that the actions of the authors "were expressly aimed at California." Id. at 789, 104 S.Ct. 1482. As Walden explained:
134 S.Ct. at 1123-24 (citations omitted).
Plaintiffs rely on this language to support their contention that the "crux" of their claims "is the reputational injury [Defendants] intentionally caused [Plaintiffs] to suffer at their Arizona Domicile." They argue that, "[l]ike [the] defamation in Calder, abuse of process and [wrongful institution of civil proceedings] were not complete until [Plaintiffs] suffered in Arizona the harm from the [Defendants'] wrongful conduct."
Plaintiffs' argument is unpersuasive. In Calder the defendants published the allegedly defamatory statements in the forum state, and the claimed harm to the plaintiff occurred when the residents of that state read them. It was the publication itself that caused the alleged injury in the forum state. Consistent with the standard of Walden, this "relationship ... ar[o]se out of contacts that the defendant himself create[d] with the forum State." 134 S.Ct. at 1122. Here, by contrast, Plaintiffs elected to work outside of Arizona in order to participate as counsel in the Tharaldson Litigation that was conducted in Nevada. The allegedly tortious conduct here involved very limited communications and proceedings in Arizona, all of which arose out of and were component parts of the litigation in Nevada. Any links to Arizona, which included Defendants' communications with Plaintiffs by telephone and email about the Tharaldson Litigation, occurred only because it happened to be where Plaintiffs resided. The primary effects of Defendants' actions, including the alleged harm, were tied directly to the litigation in Nevada. This is confirmed by the order issued by the Arizona Superior Court that quashed the subpoenas issued in connection with the Tharaldson Litigation. It was without prejudice to a de novo review by the Special Master in Nevada who had been appointed in the Tharaldson Litigation. He later denied the motions, a ruling that was ultimately affirmed, with limitations, by the Nevada Supreme Court. Thus, even the deposition subpoena process, which is a significant basis for Plaintiffs' claim of jurisdiction in Arizona, was definitively adjudicated in Nevada.
Because Defendants knew that Plaintiffs were from Arizona, it was foreseeable that some injury to them could have been experienced there based on the actions taken by Defendants in connection with the Tharaldson Litigation. Harm suffered in the forum state is a necessary element in establishing purposeful direction. See
This case has more in common with Walden than Calder. In Walden, the sole connection to the forum state of Nevada was that plaintiffs resided there. The relevant actions — the seizure of the money and the preparation of the affidavit-occurred in Georgia, and were related to the plaintiffs' brief presence there. Here, Plaintiffs' Complaint alleges that Defendants' tortious activities were undertaken for "ulterior purposes," including the following:
According to Plaintiffs, all of these alleged actions had a common and improper purpose — to gain an advantage for Defendants and their clients in the Tharaldson Litigation that was proceeding in Nevada. From this they contend that these actions did not constitute legitimate litigation conduct. To be sure, the purpose of a party's action is not the lodestar for our jurisdictional determination; rather, we consider the nature of the action itself and the resulting harm. Under the facts of the instant case, however, the driving force behind Defendants' actions — the ongoing litigation in Nevada — also provides the framework within which the actions occurred and the foreseeable harm would result. In other words, the allegedly tortious acts were not simply motivated by, or designed to achieve a benefit in, the Nevada litigation, they were component parts of that litigation. Indeed, the manner in which the Defendants allegedly conducted the litigation in Nevada, i.e., the Tharaldson Litigation, the defamation action and the Nevada State Bar proceeding, is the basis for Plaintiffs' claims. For example, Defendants pursued the depositions at issue as part of the discovery process in the Tharaldson Litigation. The litigation challenging the right to take the depositions took place under its auspices, as confirmed by the deference of the Arizona Superior Court to the Nevada Special Master when issuing its ruling on Plaintiffs' motion to quash. The involvement of Arizona procedures was solely a by — product of Plaintiffs' residence. Further, as noted, the propriety of the subpoenas was ultimately decided by the Nevada Supreme Court.
The facts of this case may not be as clear-cut as those in Walden: The Walden defendant had "never traveled to ... or
Service of counsel at the address of that person's office is contemplated by Nevada law. Nev. R. Civ. P. 5(b)(2) (allowing service on an attorney by in-person service, delivery to the attorney's office, mailing to the attorney's last known address, or by electronic delivery where prior consent has been provided). Because these actions were undertaken as part of the Tharaldson Litigation, which was pending in Nevada, they did not constitute independent wrongdoing. "For a State to exercise jurisdiction consistent with due process, the defendant's suit-related conduct must create a substantial connection with the forum State." Walden, 134 S.Ct. at 1121.
Nor do the actions taken by the Defendants in Arizona in an effort to depose Morrill and Aronson as part of the Tharaldson Litigation provide a sufficient basis to show that the alleged torts were "expressly aimed" at Arizona. As the District Court correctly concluded, the Scott Parties commenced the companion civil proceedings in Arizona because they were required to do so in order to subpoena Plaintiffs for depositions in the Nevada litigation. At that time, Arizona had adopted the commonplace procedural requirement that a party seeking to depose an Arizona resident in connection with a civil action pending in another state had to initiate a civil action in Arizona. Ariz. R. Civ. P. 30(h) (deleted August 30, 2012, effective January 1, 2013). Such a process permitted an Arizona witness the benefit of a more convenient forum in which to raise any challenge to the subpoena.
"Physical entry into the State — either by the defendant in person or through an agent, goods, mail, or some other means — is certainly a relevant contact." Walden, 134 S.Ct. at 1122 (citing Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774-75, 104 S.Ct. 1473, 79 L.Ed.2d 790
Nor did the service of the defamation complaint on Plaintiffs in Arizona reflect an action directed toward Arizona. The defamation action was filed in Nevada. The claimed defamatory statements were made by Plaintiffs in Nevada, to a Nevada resident and in the course of discovery in the Tharaldson Litigation. Service of process on Plaintiffs where they resided was consistent with the requirements of Nevada law. Nev. R. Civ. P. 4(d)(6) (upon filing of a complaint, process is to be served "to the defendant personally, or by leaving copies thereof at the defendant's dwelling house or usual place of abode ... or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process"). It was not otherwise linked to Arizona. Cf. Wallace v. Herron, 778 F.2d 391, 394 (7th Cir. 1985) (in malicious prosecution action, no personal jurisdiction in Indiana over defendants who were California attorneys who had "served interrogatories [in Indiana], requested the production of documents, and caused the plaintiff to respond to five complaints," because "defendants filed these motions on behalf of their clients in a California court pursuant to a California lawsuit, and it would be unreasonable to require the defendants to appear in Indiana to defend this suit on the basis of such attenuated contacts").
The dissent disagrees with this overall analysis. It suggests that considering the challenged actions as ones undertaken to advance the interests of Defendants' clients in the Tharaldson Litigation creates a new rule that does not comport with the controlling standards. The dissent describes the new rule as one under which a defendant's purpose for an alleged tortious
No such rule is adopted here. As previously explained, Defendants' subjective motivations are not material to the analysis — it simply happens that, under the facts before us, the reason for Defendants' action (litigation in Nevada) also provides the relevant context within which we must assess the nature and consequences of Defendants' alleged acts. As in Walden, when a defendant's relationship to the forum state arises from the fortuity of where the plaintiff resides and the corresponding procedural requirements for the issuance of a deposition subpoena, it does not provide the basis for specific jurisdiction there.
Our analysis does not conflict with the well-established rule — to which the dissent alludes — that, when a defendant engages in tortious activity toward a plaintiff in the state where that plaintiff resides, the defendant is subject to personal jurisdiction there. Brainerd v. Governors of the University of Alberta, 873 F.2d 1257, 1258-60 (9th Cir. 1989) (personal jurisdiction in Arizona established by communications sent by out-of-state defendant to recipients in Arizona that allegedly interfered with plaintiff's contractual and other rights). Defendants' conduct in Arizona occurred as part of the required process for pursuing discovery and serving Plaintiffs in connection with the litigation in Nevada. The outcome would be different if, as suggested by the hypothetical presented by the dissent, an attorney had traveled to Arizona, not to appear at a hearing on a motion to quash a subpoena, but to throw a rock through the window of the Arizona residence of opposing counsel in litigation that was pending in Nevada. The reason for such inappropriate conduct could have been the animosity between counsel that resulted from their interaction during the litigation in Nevada. However, the throwing of the rock would not have been required, or in any manner justified, by the litigation process there.
To establish personal jurisdiction over Defendants in this action, Plaintiffs were required to make a prima facie showing that Defendants' alleged actions were directed at Arizona, not just at individuals
C. Defendants Did Not "Purposefully Avail" Themselves of the Benefits of Arizona Law
As noted, a different test for personal jurisdiction is applied in cases that arise from disputes about contracts. Plaintiffs argue that this test also applies to the present action. Under this test, we ask whether a defendant "purposefully availed" itself of the laws of the forum state. The Supreme Court has defined purposeful availment as
Burger King Corp., 471 U.S. at 475-76, 105 S.Ct. 2174 (citations omitted).
Plaintiffs argue that the Defendants "expressly invoked the `benefits and protections' of the laws of Arizona" in taking all of the actions described above with respect to the deposition subpoenas. These actions included the commencement of the civil actions as to the deposition subpoenas, service of the deposition notices, opposing the motion to quash and appearing at the hearing before the Arizona Superior Court.
Plaintiffs' arguments fail for two reasons. First, the claims at issue are premised on alleged tortious conduct by Defendants. Therefore, the purposeful availment test does not apply. See Ziegler v. Indian River County, 64 F.3d 470, 473 (9th Cir. 1995) ("[W]e apply different purposeful availment tests to contract and tort cases.... [M]erely contracting with a resident of the forum state is insufficient to confer specific jurisdiction over a nonresident. In tort cases, however, jurisdiction may attach if an out-of-forum defendant merely engages in conduct aimed at, and having effect in, the situs state." (citations omitted)).
Second, even if the test applied, Plaintiffs' allegations as to the relevant conduct are insufficient to show purposeful availment. For the reasons stated earlier with respect to the application of the purposeful direction test, Defendants' contacts with Plaintiffs arose from the Tharaldson Litigation in which the principal parties here were opposing counsel. These contacts were related not to Plaintiffs' status as residents of Arizona, but to their role as counsel in the Tharaldson Litigation, which was pending in Nevada. Therefore, Defendants' actions did not create a "substantial connection" with Arizona, or give rise to any "ongoing obligations" there. Boschetto v. Hansing, 539 F.3d 1011, 1017 (9th Cir. 2008).
For the foregoing reasons, the judgment dismissing this action for lack of personal jurisdiction is
KLEINFELD, Senior Circuit Judge, dissenting:
I respectfully dissent. The majority gets the law wrong and misapplies it to the extent it is stated correctly.
This is a civil procedure case arising from uncivil conduct by lawyers in hardball litigation. Because there have been no evidentiary findings or hearings, the plaintiff need make only a prima facie showing of jurisdiction, "the court resolves all disputed facts in favor of the plaintiff," and the allegations in the complaint are for purposes of decision assumed to be true.
In a now-settled Nevada lawsuit, Arizona lawyer K. Layne Morrill and his law firm represented developer Gary Tharaldson and related entities against Bradley J. Scott and his related entities. Scott and his companies were represented by J. Randall Jones and two law firms where Jones practiced. The litigation concerned alleged fraud in inducing Tharaldson to participate in a $100 million loan to a failed Las Vegas real estate venture. Neither the fraud, the real estate, the contracts relating to the development deal, nor Tharaldson are involved in the case before us now.
Instead, this lawsuit is about the hardball litigation tactics that Jones and Scott used against Morrill and his firm. Hardball litigation occurs when attorneys depart from the "high degree of civility and respect" on which "[o]ur adversarial system relies."
Nominally, all of Scott and Jones's hardball tactics failed. The Arizona court granted the motion to quash the depositions. Scott and Jones then argued before the special master in charge of discovery in the Nevada litigation to order the depositions. Upon recommendation of the special master, a Nevada trial court ordered the depositions to take place. Morrill appealed and the Nevada Supreme Court remanded the deposition proceedings, noting that seeking to make opposing counsel a witness "has long been discouraged and recognized as disrupting the adversarial nature of our judicial system."
But Jones and Scott won the war even though they lost all the battles. Despite the fact that each of their attacks was ultimately determined to be without merit, Jones and Scott succeeded in destroying Morrill and his firm's relationship with their clients. Tharaldson fired Morrill and his firm before the Nevada litigation settled.
To recoup the damage Morrill and his law firm suffered, they brought four claims against Scott, Jones, and their respective firms in the District Court for the District of Arizona. The claims alleged the torts of abuse of process and wrongful institution of civil proceedings for the depositions, and wrongful institution of civil proceedings for the defamation suit and the Nevada bar grievance.
Arizona's long-arm statute allows for personal jurisdiction to the maximum extent allowed by the United States Constitution.
We apply a three-part test to determine if a court can exercise specific jurisdiction over a non-resident defendant:
The second and third prong of this test raise no serious issue in this case. For the second prong, the "but for" test is used to determine whether claims arise out of the contacts.
To decide the first prong, we must apply yet another test. In tort cases we generally apply the "purposeful direction test," and in contract cases we generally apply the "purposeful availment analysis."
For the first prong, whether the defendant has committed an intentional act, all a plaintiff must show is that a defendant has an "intent to perform an actual, physical act in the real world."
The second prong, whether a defendant's actions are "expressly aimed at the forum state," requires more analysis.
Calder is not the only relevant case, however. In Walden v. Fiore the Supreme Court clarified what minimum contacts are needed with the forum state in an intentional tort case. There, Nevada gamblers had a suitcase of money seized by a Georgia police officer at the Atlanta Airport.
In this case, we need not resolve whether the defendants' conduct in Nevada, such as the defamation suit they filed against the Arizona lawyers, creates the minimum contacts needed for jurisdiction. Their conduct in Arizona plainly does. The defendants' contacts with Arizona are stronger than those the Supreme Court held to be sufficient in Calder because of their travel to and actions in Arizona. Unlike the Florida editors in Calder who had few direct contacts arising out of the suit with California,
Finally, for the third prong of the purposeful direction test, a defendant must know the harm was "likely to be suffered" in the forum state.
Because all three prongs of the purposeful direction test are met, the remaining prong of the minimum contacts test is met.
The majority creates a new and erroneous legal rule: if the plaintiff has acted in the defendant's state, and if the "driving force behind" the defendant's conduct arises from litigation elsewhere,
The majority creates this erroneous rule because it focuses on the "driving force behind" the defendants' conduct, the so-called "framework" for the conduct, rather than on the defendants' contacts with the state of Arizona.
The defendants' contacts with Arizona were indeed related to the plaintiffs' conduct in the Nevada lawsuit. And Walden does hold that a "plaintiff cannot be the only link between the defendant and the forum."
Walden offers no support for disregarding connections to the forum state, as the majority does, because of their relationship to a plaintiff's conduct elsewhere. If because of something you were doing to me in Nevada, I traveled to Arizona and threw a rock through your window, my conduct's relationship to Nevada does not deprive an Arizona court of jurisdiction over your tort action — even if the "driving force behind" what I did to you was for the purpose of gaining an advantage over you in Nevada, and even if what you did to me in Nevada "provide[d] the framework within which" I threw the rock.
Nor is there any justification for the majority's rule in the two published cases interpreting Walden in this circuit. In Williams v. Yamaha Motor Co. Ltd.,
And in Picot v. Weston, we applied Walden and found no jurisdiction because the defendant committed all of his tortious conduct out of state with no meaningful contacts with the forum state.
The majority's new rule creates at least an implicit circuit split with the Sixth Circuit. In MAG IAS Holdings Inc. v. Schmückle,
When the majority does get to discussing the defendants' contacts with Arizona (rather than their "driving force" or the "framework within which" they occurred),
While the Nevada lawsuit may have been the impetus for the defendants' conduct, their contacts — filing a civil action in Arizona, traveling to Arizona, appearing pro hac vice in an Arizona court, and arguing a new case in an adversarial hearing — were not "limited and ancillary" as the majority suggests.
I do not understand the majority's argument that the defendants' conduct established only "the potential foreseeability of some incidental harm to Plaintiffs in Arizona."
Trial lawyers say of hardball litigation, "live by the sword, die by the sword." Yet Scott and Jones avoid the jurisdictional consequences of both their Arizona-directed conduct and their conduct in Arizona. Scott's and Jones's decision to bring the fight to Morrill and his firm in Arizona by availing themselves of the Arizona state courts subjected them to jurisdiction in Arizona to determine if their hardball litigation tactics were tortious. The majority's opinion today not only allows Scott and Jones to use the Arizona legal system against an Arizona resident yet avoid being held accountable in Arizona, but it will also deprive future plaintiffs of the ability to sue in the forum to which a defendant has traveled to do them harm. It is mistaken. The majority's "driving force" and "framework" test enables a tortfeasor to evade jurisdiction where his actions or their consequences occur, so long as the tortfeasor's purpose is to use the tort as a means to his own end that will occur elsewhere.
Former Ariz. R. Civ. P. 30(h). Arizona now conforms its rules to the Uniform Interstate Depositions and Discovery Act along with 36 other states. Unif. Interstate Depositions & Discovery Act (2017).