129 Nev., Advance Opinion 100
IN THE SUPREME COURT OF THE STATE OF NEVADA
MELINDA BOOTH DOGRA AND No. 59381
JAGDISH DOGRA,
Appellants,
vs.
FILED
JANE H. LILES, DEC 2 6 2013
Respondent. TRAgEONDEMAN •
CLERK.OF BEME,g9U,
BY
DEPUTY CLERK
Appeal from a district court order, certified as final under
NRCP 54(b), dismissing an action based on lack of personal jurisdiction.
Eighth Judicial District Court, Clark County; Linda Marie Bell, Judge.
Reversed and remanded.
Law Office of William R. Brenske and William R. Brenske, Las Vegas;
Raleigh & Hunt, P.C., and John A. Hunt, Anastasia L. Noe, and Bert E.
Wuester, Jr., Las Vegas,
for Appellants.
Barron & Pruitt, LLP, and Peter A. Mazzeo and Jared G. Christensen,
North Las Vegas; Lewis & Roca, LLP, and Daniel F. Polsenberg, Las
Vegas,
for Respondent.
BEFORE THE COURT EN BANC ,1
1The Honorable Patrick Flanagan, District Judge in the Second
Judicial District Court, was designated by the Governor to sit in place of
the Honorable Michael L. Douglas, Justice, Nev. Const. art. 6, § 4, who
voluntarily recused himself from participation in the decision of this
matter.
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OPINION
By the Court, FLANAGAN, D.J.:
This case arises from a personal injury action filed by
appellants Melinda and Jagdish Dogra. They sued respondent Jane H.
Liles and her daughter Susan Liles, both California residents, for damages
stemming from a car accident in Nevada. The accident occurred when
Susan was driving Jane's car.
The central issue in this appeal is whether Jane, a
nonresident defendant, is subject to personal jurisdiction in Nevada by
virtue of the accident. Additionally, we address whether Jane's filing of a
motion to consolidate in a Nevada court waived her right to object to the
court's exercise of personal jurisdiction over her. Finally, we examine
whether an interpleader action filed by Jane's insurance company subjects
its insured—here, Jane—to personal jurisdiction in Nevada.
We hold that a nonresident defendant is not subject to
personal jurisdiction in Nevada when the sole basis asserted is his or her
adult child's unilateral act of driving the defendant's vehicle in Nevada.
Secondly, because the consolidation motion did not implicate the parties'
substantive legal rights, we conclude Jane's filing of it did not amount to a
request for affirmative relief sufficient to constitute a waiver of the right
to object to the court's exercise of personal jurisdiction over her. Finally,
we conclude that the interpleader action could subject Jane to jurisdiction
in Nevada courts if the insurance company was acting as Jane's agent in
filing the action. But because the issue surrounding the interpleader
action was not adequately addressed in the district court, we remand so
that it can be analyzed under principles of agency.
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FACTS AND PROCEDURAL HISTORY
Jane, a California resident, purchased and registered, in
California, a Scion for her daughter Susan to use as Susan's primary
means of transportation while attending high school and college in that
state. Jane made all of the payments on the vehicle, registered it in
California in her own name, and placed it on her insurance policy. On the
policy, Jane named Susan as the primary driver.
While in college, Susan drove the Scion to Nevada for a
weekend trip. While traveling in Nevada on Interstate 15, she lost control
of the vehicle and swerved in front of another car. The second car swerved
to avoid a collision but crashed into the interstate's median, which caused
it to flip over the median and land on the Dogras' car.
As a result of the accident, Jane's insurance company filed an
interpleader action in Nevada, leaving the injured parties to settle their
respective rights to any money due under the insurance policy.
Thereafter, the Dogras and three other sets of plaintiffs separately sued
Susan and Jane for negligence and negligent entrustment for damages
caused during the accident. In the Dogras' action, Jane moved under
NRCP 12(b)(2) to dismiss the complaint due to lack of personal
jurisdiction. The Dogras opposed Jane's motion, arguing that Nevada
could properly exercise personal jurisdiction over Jane because she had
sufficient contacts with Nevada. The district court scheduled a hearing for
the parties to present their arguments.
Following the hearing, the district court granted Jane's motion
to dismiss. Six days later, Jane and Susan moved to consolidate all
lawsuits stemming from the accident, including the Dogras' action. The
Dogras then asserted that, by filing the motion to consolidate, Jane
became subject to Nevada's jurisdiction. The district court granted the
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consolidation motion and concluded that the motion did not subject Jane
to Nevada's jurisdiction.
Susan and Jane were subsequently deposed. At Susan's
deposition, she testified that Jane did not prohibit her from driving the
Scion to Nevada. At Jane's deposition, she testified similarly about the
no-restrictions policy. She also testified that she did not remember
whether she knew about Susan's trip to Las Vegas before the accident.
After obtaining the transcript of Susan's deposition testimony, the Dogras
filed a motion for reconsideration and, alternatively, a motion to certify
the dismissal order as final pursuant to NRCP 54(b). The Dogras claimed
that Susan's deposition testimony constituted new and previously
unavailable evidence proving that Jane was subject to Nevada's
jurisdiction because she placed no restrictions on Susan's use of the
vehicle. After full briefing and a hearing, the district court denied the
Dogras' motion for reconsideration, determining the statements Susan
made in her deposition were not new and substantially different evidence.
The district court granted the Dogras' motion to certify the dismissal order
as final pursuant to NRCP 54(b), and this appeal followed.
DISCUSSION
On appeal, the Dogras contend that the district court erred in
determining it lacked personal jurisdiction over Jane. They assert three
theories in support of their position: (1) Jane has sufficient minimum
contacts with Nevada to subject her to suit here based on the fact that she
let Susan use her car in this state; (2) Jane sought affirmative relief in
Nevada courts by filing the motion to consolidate, which subjects her to
suit here; and (3) Jane acquiesced to the jurisdiction of Nevada courts over
this matter when, through her insurer, she filed an interpleader action
here.
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We review a district court's order regarding jurisdictional
issues de novo when the facts are undisputed. Baker v. Eighth Judicial
Dist. Court, 116 Nev. 527, 531, 999 P.2d 1020, 1023 (2000). We review a
district court's factual findings regarding a personal jurisdiction issue for
clear error. Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009).
Minimum contacts
The Dogras assert that Susan's act of driving the Scion in
Nevada subjected Jane to Nevada's jurisdiction because she entrusted the
vehicle to Susan and did not place any restrictions on Susan's use of the
vehicle, which resulted in injury in Nevada. Put more directly, the Dogras
argue that Jane, by placing no restrictions on Susan's use of the Scion,
specifically authorized Susan to drive to Nevada, thereby creating
sufficient minimum contacts with Nevada from which the claim arose. As
explained below, we disagree.
Nevada may exercise personal jurisdiction over a nonresident
defendant only if doing so does not offend due process. Trump v. Eighth
Judicial Dist. Court, 109 Nev. 687, 698, 857 P.2d 740, 747 (1993). Due
process in this context is rooted in a defendant's "contacts" with the forum
state—here, Nevada—and reflects his or her reasonable expectations
about the litigation risks associated with those contacts. See id. at 699,
857 P.2d at 748 ("The defendant must have sufficient contacts with
[Nevada] such that he or she could reasonably anticipate being haled into
court there."). As it is classically understood, therefore, due process
requires a nonresident defendant to have sufficient "minimum contacts"
with the 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 (1945) (internal quotation marks and
citation omitted). Absent the defendant's acquiescence to a forum state's
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jurisdiction, personal jurisdiction occurs in two forms: general and specific.
Trump, 109 Nev. at 699, 857 P.2d at 748. Because the Dogras do not
argue that Nevada has general personal jurisdiction over Jane, we focus
exclusively on specific personal jurisdiction.
Unlike general jurisdiction, specific jurisdiction is proper only
where "the cause of action arises from the defendant's contacts with the
forum." Id. Nevada may exercise specific jurisdiction over a nonresident
defendant if the defendant "purposefully avails" himself or herself of the
protections of Nevada's laws, or purposefully directs her conduct towards
Nevada, and the plaintiffs claim actually arises from that purposeful
conduct. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297
(1980). Thus, "the mere unilateral activity of those who claim some
relationship with a nonresident defendant cannot satisfy the requirement
of contact with the forum State." Id. at 298 (internal quotation marks and
citation omitted). Importantly, "[w]hether general or specific, the exercise
of personal jurisdiction must also be reasonable." Emeterio v. Clint Hurt
& Assocs., Inc., 114 Nev. 1031, 1036, 967 P.2d 432, 436 (1998) (citing
Trump, 109 Nev. at 703, 857 P.2d at 750).
In this case, Jane's act of buying the Scion and placing no
restrictions on Susan's use of it did not amount to purposeful availment of
Nevada's laws or purposeful conduct toward Nevada. In car accident cases
involving a nonresident's vehicle, courts have determined the nonresident
defendant is subject to a forum's jurisdiction when the defendant actually
knows his or her car is being operated in the forum state. For example, in
Tavoularis v. Womer, the New Hampshire Supreme Court held that New
Hampshire's exercise of personal jurisdiction over a nonresident defendant
was reasonable because he "specifically authorized" his friend's use of his
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vehicle in New Hampshire. 462 A.2d 110, 114 (N.H. 1983). In Stevenson
v. Brosdal, a Florida court held that a nonresident defendant created
sufficient minimum contacts with Florida to justify the exercise of
personal jurisdiction when he loaned his car to his son knowing that he
(the son) would regularly use the car in Florida. 813 So. 2d 1046, 1049
(Fla. Dist. Ct. App. 2002). Additionally, in Trump (not a car accident
case), this court found that Nevada could reasonably exercise personal
jurisdiction over a nonresident defendant where the defendant (and his
agent) actively pursued a future employee who lived in Nevada, negotiated
an employment agreement with the employee over a period of months
while the employee lived in Nevada, and set up a trust in Nevada as part
of the agreement. 109 Nev. at 701-02, 957 P.2d at 749-50.
Unlike all of those cases, Nevada does not have specific
personal jurisdiction over Jane in this matter because she did not
purposefully avail herself of Nevada's laws or direct her conduct towards
Nevada. Jane did not specifically authorize Susan to drive the Scion to
Nevada, as the defendant did in Tavoularis. She did not loan the vehicle
to Susan knowing she would regularly use it in Nevada, as the defendant
did in Stevenson. And she did not purposefully direct her conduct toward
Nevada or a Nevada resident, as the defendant did in Trump.
Further, to the extent Jane's no-restrictions policy amounted
to "allow[ine Susan to drive the Scion in Nevada, as the dissent observes,
it must also be the case that Jane "allowed" Susan to drive anywhere in
the United States a highway could deliver her. Under this logic, Jane
"allowed" Susan to drive to Nevada, and to Maine, or Alaska, or Florida.
And if Susan happened to cause an accident in any of those states or in
any state in between, Jane would be subject to specific personal
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jurisdiction therein. Such a result would be unreasonable and would
offend due process because it would, in effect, "appoint" the vehicle Jane's
"agent for service of process." World-Wide Volkswagen, 444 U.S. at 296.
To be sure, Jane's only "contact" with Nevada in this case is her purchase
of the Scion for Susan, and her failure to place any restrictions on Susan's
use of it. She had no other contact with Nevada. To allow Nevada to
exercise personal jurisdiction over Jane on these facts would undermine
the degree of predictability the Due Process Clause provides to the legal
system, which "allows potential defendants to structure their primary
conduct with some minimum assurance as to where that conduct will and
will not render them liable to suit." Id. at 297. 2
Therefore, because Susan's act of driving to Nevada was a
unilateral act unsanctioned by Jane and of which Jane had no specific
knowledge, Nevada's exercise of personal jurisdiction over her pursuant to
specific jurisdiction would be unreasonable.
Affirmative relief
The Dogras also contend the district court erred in
determining it lacked personal jurisdiction over Jane on the basis of her
filing a motion to consolidate in the Dogras' case. They argue that, by
filing the motion, Jane sought affirmative relief from Nevada's courts and
2 Moreover, this case is readily distinguishable from Budget Rent-A-
Car v. Eighth Judicial District Court, 108 Nev. 483, 835 P.2d 17 (1992),
upon which the dissent relies. In that case, the nonresident defendant
(Budget Rent-A-Car) expressly prohibited the lessee-driver from traveling
outside of California without its written permission. 108 Nev. at 485, 835
P.2d at 18. Jane gave no such express prohibition to Susan in this case.
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thereby waived her right to object to Nevada's exercise of jurisdiction. We
disagree.
We assume without deciding that seeking affirmative relief
from a court subjects a litigant to that court's jurisdiction and cannot
simultaneously be done while the litigant objects to the court's exercise of
jurisdiction. See, e.g., S.E.C. v. Ross, 504 F.3d 1130, 1148 (9th Cir. 2007)
("[Al party cannot simultaneously seek affirmative relief from a court and
object to that court's exercise of jurisdiction."). Ordinarily, a litigant seeks
affirmative relief when he or she alleges wrongful conduct against another
and seeks damages or equitable relief thereon, or defends against an
action by denying or asserting defenses to allegations made against him or
her. See, e.g., Black's Law Dictionary 1404 (9th ed. 2009) (defining
"affirmative relief' as "Mlle relief sought by a defendant by raising a
counterclaim or cross-claim that could have been maintained
independently of the plaintiffs action").
Jane's consolidation motion did none of these things. A review
of the record below shows the motion was essentially a case management
device employed by Jane (and Susan) to promote efficiency in resolving the
various cases, including the Dogras' action, arising from the accident.
None of the parties' substantive rights were implicated by the motion. On
these facts, we cannot conclude that Jane's consolidation motion amounted
to a request for affirmative relief that waived her right to object to
personal jurisdiction. 3
3 In
addition, Local Rule 2.50(a)(1) of the; Eighth judicial District
Court requires a consolidation motion to be heard by the judge assigned.
to the case first commenced." Here, the case first commenced out of the
continued on next page...
9
Further, Dow Chemical Co. v. Calderon, 422 F.3d 827 (9th Cir.
2005), cited by the dissent, is not Persuasive on this point. In that case,
which involved a declaratory judgment action brought by Dow Chemical
Company against more than a thousand Nicaraguan citizens, the Ninth
Circuit found "personal jurisdiction exists where a defendant also
independently seeks affirmative relief in a separate action before the same
court concerning the same transaction or occurrence." 422 F.3d at 834.
The court arrived at this ruling by "assum[ing] without deciding" that it
would follow the holdings in two out-of-circuit decisions, General
Contracting & Trading Co. v. Interpole, Inc., 940 F.2d 20 (1st Cir. 1991),
and International Transactions Ltd. v. Embotelladora Agral
Regionmontana S.A. de C.V., 277 F. Supp. 2d 654 (N.D. Tex. 2002). Id.
First, Interpole and Embotelladora are distinguishable from
the instant case. In each of those cases, the relevant conduct was
performed by plaintiffs. In Interpole, the court found that the party
contesting personal jurisdiction waived its right to do so because it
"elected to avail itself of the benefits of the New Hampshire courts as a
plaintiff' in filing suit against Interpole, Inc., in New Hampshire.
interpole, 940 F.2d at 23. Similarly, in Embotelladora, the court found
that the party contesting personal jurisdiction waived its right to do so
because it had previously filed two lawsuits as a plaintiff in the same
judicial district in which it was contesting jurisdiction. Embotelladora,
277 F. Supp. 2d at 668. The court also found those lawsuits arose from the
same nucleus of operative facts underlying that case. Id.
...continued
s
several arising from the accident v Tas the Dogras' case. Thus, Jane was
required to file her motion to consolidate in the Dogras' case.
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By contrast, here, Jane is a defendant, not a plaintiff. She had
not filed a lawsuit against the Dogras or anyone else involved in this case.
The "affirmative relief rule" established in those cases cited in Dow
Chemical v. Calderon, supra, therefore, is inapplicable to this case.
Second, the Ninth Circuit in Dow Chemical did not
conclusively adopt the holdings in those cases. Rather, it "assume Ed]
without deciding" that the circuit would follow the holdings. Thus, even
though federal authority is relevant here because NRCP 12 is consistent
with its federal counterpart, see Fritz Hansen AI S v. Eighth Judicial Dist.
Court, 116 Nev. 650, 655, 6 P.3d 982, 985 (2000); Nelson v. Heer, 121 Nev.
832, 834, 122 P.3d 1252, 1253 (2005) ("[F]ederal decisions involving the
Federal Rules of Civil Procedure provide persuasive authority when this
court examines its rules."), Dow Chemical provides no persuasive
authority relevant to this case for us to adopt.
Interpleader
Finally, because the Dogras did not argue the issue on appeal
adequately, we directed the parties to submit supplemental briefs as to
whether the interpleader action filed by Jane's insurance company in
Nevada subjected her to personal jurisdiction herein. After considering
the supplemental briefs and other authorities, and because we anticipate
the need for clarity in this area of the law, we find this question is
properly analyzed under an agency theory. Cf. Tweet v. Webster, 596 F.
Supp. 130, 133 (D. Nev. 1984). In Tweet, the plaintiff alleged that Nevada
had personal jurisdiction over a nonresident defendant because the
defendant's insurance company negotiated a settlement agreement on
defendant's behalf in Nevada. The court enumerated three factors crucial
to the determination of whether an agency relationship existed arising
from the insurance company's actions, thereby subjecting the defendant to
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Nevada's jurisdiction: (1) whether the insurer had complete control over
settling the claims against the defendant; (2) whether the defendant could
"control the method, means or place of settlement negotiations"; and (3)
whether the insurer could act in a dual capacity, "the principal purpose of
which [was] to protect its own contingent liability under the contract." Id.
at 133.
The Tweet factors are of assistance in resolving this issue.
The district court, however, should be the first to analyze the factual
question of the control dynamics between insured and insurer, i.e.,
whether Jane had an agency relationship with her insurance company.
See, e.g., Polo Ralph Lauren, L.P. v. Tropical Shipping & Constr. Co., 215
F.3d 1217, 1224 (11th Cir. 2000) (stating "determination of the existence
of an agency relationship is a factual question" and declining to resolve an
agency issue by making an "exception to the general rule that matters
must be presented before the district court in the first instance").
Accordingly, we remand to the district court to address this issue in the
first instance under the analytical framework of an agency theory. 4
4 In addition to whether the Dogras adequately raised the
interpleader issue on appeal and whether the question was properly
analyzed under an agency theory, our order directing supplemental
briefing ordered the parties to discuss the applicability of the Ninth
Circuit's analysis in Methwold International Finance Co. v. Manfredonia,
481 F. App'x 363, 365 n.1 (9th Cir. 2012), to this question. After a careful
review, we conclude the analysis in that case is inapplicable to the
interpleader issue. It is merely dicta interpreting dicta; it has no
precedential value and therefore should have no persuasive force in any
case, including this one.
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CONCLUSION
Based on the foregoing, we hold that Jane is not subject to
personal jurisdiction in Nevada by virtue of Susan's unilateral use of the
Scion in Nevada and the accident arising from her use, or because she
moved to consolidate the several cases stemming from the accident. But
Jane might be subject to jurisdiction in Nevada based on her insurance
company's filing of the related interpleader action in Nevada. Accordingly,
the district court's order granting Jane's motion to dismiss is reversed,
and we remand this matter to the district court for consideration of
whether, under the principles of agency set forth in Tweet v. Webster, the
interpleader action filed in Nevada by Jane's insurance company subjected
Jane to personal jurisdiction.
c:21/4St C--v s , D.J.
Flanagan
We concur:
Pickering
J.
Hay4sty
Parraguirre
13
GIBBONS, J., with whom CHERRY and SAITTA, JJ., agree, concurring in
part and dissenting in part:
I concur with the majority that this case should be remanded
regarding the issues surrounding the interpleader action. However, I
disagree with the majority's conclusion that the district court lacked
specific personal jurisdiction over Jane Liles as a defendant in the Dogras'
negligent entrustment action for two reasons. First, Jane acquired
minimum contacts with Nevada when she (1) gave a car registered and
insured in her name to her daughter, Susan Liles; and (2) allowed Susan
to drive it in Nevada, thereby invoking the benefits and protections of
Nevada law. Second, Jane impliedly consented to Nevada's jurisdiction
when she filed the motion to consolidate and when her insurance company
filed an interpleader action on her behalf. Therefore, I would reverse the
district court's order dismissing the action against her based upon lack of
personal jurisdiction because the district court obtained personal
jurisdiction over Jane.
Jane established minimum contacts with Nevada when she allowed her
daughter to drive her car in Nevada
Specific personal jurisdiction may be exercised over an
individual who purposefully avails herself of Nevada's laws or directs her
conduct towards Nevada, "and the cause of action arises from that
purposeful contact" with Nevada. Budget Rent-A-Car v. Eighth Judicial
Dist. Court, 108 Nev. 483, 835 P.2d 17 (1992); Price & Sons v. Second
Judicial Dist. Court, 108 Nev. 387, 390, 831 P.2d 600, 602 (1992).
A. The Dogras made a prima facie showing of personal jurisdiction
to the district court
When a defendant challenges personal jurisdiction, the
plaintiff may meet his or her burden in one of two ways. Trump v. Eighth
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Judicial Dist. Court, 109 Nev. 687, 692, 857 P.2d 740, 743 (1993). The
first way requires the plaintiffs to make a prima facie showing of personal
jurisdiction prior to trial with "competent evidence of essential facts," and
then prove jurisdiction by a preponderance of evidence at trial. Id.
(internal quotation marks omitted). The plaintiff must produce some
evidence in support of all the facts necessary for a finding of personal
jurisdiction, and the district court must accept properly supported proffers
of evidence as true. Id. at 692-93, 856 P.2d at 744. When factual disputes
arise, "those disputes must be resolved in favor of the plaintiff." Id. at
693, 856 P.2d at 744 (internal quotation marks omitted).
The second way to show personal jurisdiction is for the trial
court to hold a full evidentiary hearing on the personal jurisdiction issue
prior to trial. Id. In such a situation, the plaintiff must prove personal
jurisdiction by a preponderance of the evidence and does not receive the
same presumption of credibility that it would in a prima facie analysis.
Id. at 693-94 .2d at 744-45.
Here, the Dogras used the first method to establish personal
jurisdiction. This is evidenced by Jane's motion to dismiss and the
subsequent hearing transcripts. The district court's order further
confirms this. Therefore, the district court should have resolved factual
disputes in favor of the Dogras and accepted all properly supported
proffers of evidence as true.
B. Jane established minimum contacts with Nevada
Specific jurisdiction exists over a defendant when "the cause of
action arises from the defendant's contacts with Nevada." Budget Rent-A-
Car, 108 Nev. at 486, 835 P.2d at 20. Further, specific jurisdiction exists
when the defendant "purposefully avails itself of the privilege
of. . . enjoying the protection of the laws of the forum, and the cause of
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action arises from the purposeful contact with the forum." Id. at 487, 835
P.2d at 20.
Specific jurisdiction does not exist over a defendant when the
unilateral activity of another person creates the contact between the
defendant and the forum state. Id. In Budget Rent-A-Car, the rental
agreement provided that the renter could not take a rental car out of
California without Budget's written permission. Id. at 485, 835 P.2d at 18.
The renter did not obtain permission to take the car outside of California,
and got in an accident while driving in Las Vegas. Id. at 487, 835 P.2d at
20. This court determined that Nevada did not have jurisdiction over
Budget because Budget did not give permission for the renter to drive the
car in Nevada. Id. Thus, the unilateral activity of the renter created the
contact with Nevada, which was insufficient to invoke specific jurisdiction
over Budget. Id.; see World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 298 (1980) ("the mere unilateral activity of those who claim some
relationship with a nonresident defendant cannot satisfy the requirement
of contact with the forum State").
A forum state will have jurisdiction over a defendant if the
alleged injury occurred there and the defendant authorized the activity
that caused the injury. Tavoularis v. Worner, 462 A.2d 110, 112 (N.H.
1983). In Tavoularis, the defendant authorized his friend to drive
defendant's car in New Hampshire to visit family. Id. at 111. The New
Hampshire Supreme Court held that New Hampshire had specific
jurisdiction over the defendant because (1) "it was reasonably foreseeable
that the defendant would be sued in New Hampshire for negligently
entrusting [his can to [his friend]," and (2) it was not "fortuitous" that the
injury occurred in New Hampshire because the defendant specifically
authorized [his friend] to drive in New Hampshire." Id. at 113-14.
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However, a defendant can implicitly authorize the activity
that causes the injury. Stev enson v. Brosdal, 813 So. 2d 1046, 1048 (Fla.
l
Dist. Ct. App. 2002). In Stevenson, the defendant, who owned the car,
gave his son a car to use. Id The defendant did not specifically authorize
the defendant to only use the car in a certain state. Id. The defendant
knew that his son was living and driving the car in Florida. Id. The court
found that Florida had jurisdiction over the defendant because the owner
was aware the car was in Florida and impliedly consented to his son's use
of the car in Florida. Id.
Here, Jane purposefully availed herself of Nevada's laws and
established minimum contacts with Nevada when she purchased a car for
Susan and admittedly did not place any restrictions on where Susan could
drive it, thereby allowing Susan to drive the car to Nevada. Similar to
Tavoularis, Jane authorized Susan to drive to Nevada when she did not
place any restrictions on where she could drive the car. Also, like in
Stevenson, Jane gave Susan a car and knew that she would likely use it if
she was to travel anywhere by car. Thus, Jane implicitly consented to
Susan's use of the car in Nevada. However, there is a crucial factual
dispute as to whether Jane knew about her daughter's trip to Las Vegas.
Specifically, Jane did not dely actual knowledge of her daughter's trip to
Las Vegas for her friend's birthday party that had been planned for five
months. Rather, Jane stated that she could not remember. Susan also
could not recall if she told her mother about the trip, even though they
talked a number of times before Susan left for Las Vegas. Resolving this
factual dispute in favor of the Dogras, the inference arises that Jane must
have known about the trip and her failure to disallow Susan from driving
the car in Nevada on the day of the accident could be seen as specific
authorization for her to do so. By giving the car to Susan with
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authorization to drive it in Nevada, Jane established minimum contacts
with Nevada such that it s reasonable to subject her to a negligent
entrustment suit here.
Further, it was foreseeable that Susan would drive to Las
Vegas and does not constitrite a "mere unilateral activity." Unlike in
Budget Rent -A-Car, where Budget restricted where the renter could drive
without permission and did not give the renter permission to drive out of
state, here, Jane did not plaCe any restrictions on Susan's use of the car.'
Further, Jane never told her daughter she needed permission to take the
car out of state, and Susan did not act directly against her mother's
instructions. Additionally, When resolving the factual disputes in favor of
the Dogras, this further shows that (1) it was foreseeable that Jane could
be sued in Nevada, (2) it w4s not fortuitous that the injury occurred in
Nevada because Jane authbrized Susan to drive to Nevada, and (3)
Susan's driving the car to NeYada was not a "mere unilateral activity." See
Tavoularis, 462 A.2d at 114.
Additionally, the majority claims that this interpretation
4G
would be unreasonable" arid "undermine the . . predictability [ofi the
Due Process Clause" because Susan would have been allowed "to drive to
Nevada, and to Maine, or Alaska, or Florida." The majority further argues
that "it would, in effect, 'appoint' the vehicle Jane's 'agent for service of
process" and undermine the degree of predictability (citing World-Wide
I-I agree with the majority that Budget Rent-A-Car is "readily
distinguishable." As the majority states, "Jane gave no such express
prohibition to Susan in this case." However, as noted above, Jane
impliedly authorized Susan to drive the car out of state, purposefully
availing herself of Nevada's laws.
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Volkswagen, 444 U.S. at 296). However, it would be reasonable to
conclude that Jane authorized. Susan to drive to Nevada, and this
interpretation would not result in an unpredictable outcome because of the
close proximity of Las Vegas to California, the factual inference that Jane
likely knew about the trip, and Jane's failure to prohibit Susan from
driving to Nevada.
I would hold that these facts take this case out of the realm of
mere foreseeability and provides sufficient facts to establish a prima facie
case in favor of exercising personal jurisdiction over Jane. The Dogras
would still have to prove specific personal jurisdiction by a preponderance
of evidence at trial, with the aid of cross-examination to determine Jane's
actual knowledge.
Jane consented to Nevada's jurisdiction when she filed a motion to
consolidate the four district court cases arising from Susan's car accident
Personal jurisdiction, like other rights, can be waived. Dow
Chem. Co. v. Calderon, 422 F.3d 827, 831 (9th Cir. 2005). In Dow
Chemical, the Ninth Circuit recognized that a defendant can give explicit
or implied consent to a forum's jurisdiction over her when "a
defendant . . . independently 'seeks affirmative relief in a separate action
before the same court concerriing the same transaction or occurrence." Id.
A request for affirmative relief may occur before the suit is filed, at the
time the suit is brought, or after the suit starts. Id.
After the district court dismissed her from the case, Jane filed
a motion in the Dogras' action to consolidate all four Nevada district court
cases arising from her daughter's car accident. This motion submitted
Jane to personal jurisdiction of Nevada courts because it was a request to
SUPREME COURT
OF
NEVADA
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the court for affirmative relief and clearly concerned the same transaction
or occurrence, the car accident. Therefore, I would reverse and remand
this case to the district court for further proceedings on the merits.
Gibbons
We concur:
Saitta
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