NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 13 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATHLEEN K. JOHNSON, Individually No. 20-56253
and as Trustee of The Annabell M. Palmer
Family Trust; JUDITH WOODARD, D.C. No.
Individually and as Trustee of The 2:20-cv-00357-MCS-JC
Annabelle M. Palmer Family Trust,
Plaintiffs-Appellants, MEMORANDUM*
v.
UBS AG,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Mark C. Scarsi, District Judge, Presiding
Submitted July 8, 2021**
Seattle, Washington
Before: HAWKINS and IKUTA, Circuit Judges, and CALDWELL,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Karen K. Caldwell, United States District Judge for the
Eastern District of Kentucky, sitting by designation.
Plaintiffs, Kathleen Johnson and Judith Woodward, brought claims, sounding
in contract and tort, alleging that Defendant UBS indirectly solicited their late
mother, Annabell M. Palmer, to wire $4 million to Defendant in Switzerland for
investment purposes. Palmer obliged but never received any return on or an
accounting of these funds. Plaintiffs now appeal the dismissal of their claims for
lack of personal jurisdiction over Defendant. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
We review a dismissal for lack of personal jurisdiction de novo, Boschetto v.
Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008), and may affirm on any basis
supported by the record, Ranza v. Nike, Inc., 793 F.3d 1059, 1076 (9th Cir. 2015).
Because the district court decided Defendant’s motion without an evidentiary
hearing, we must only inquire into whether Plaintiffs’ “pleadings and affidavits
make a prima facie showing of personal jurisdiction.” Schwarzenegger v. Fred
Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004) (internal quotations omitted).
I. General Jurisdiction
Plaintiffs argue that California has general jurisdiction over Defendant
because Defendant is “at home” in California based on its regular and continuous
business contacts there. Typically, the “all-purpose” forums for general jurisdiction
are a corporation’s “place of incorporation and principal place of business.” Daimler
AG v. Bauman, 571 U.S. 117, 137 (2014). But courts “may assert general
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jurisdiction over foreign (sister-state or foreign-country) corporations to hear any
and all claims against them when their affiliations with the State are so continuous
and systematic as to render them essentially at home in the forum State.” Goodyear
Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (internal
quotations omitted).
Here, Defendant is not subject to general jurisdiction in California. Defendant
is a Swiss corporation with a principal place of business in Switzerland, and its
contacts with California fall short of demonstrating that Defendant is “essentially at
home” in California. Although Defendant has a number of branch offices and
employees in California and as such generates a significant amount of revenue there,
“[a] corporation that operates in many places can scarcely be deemed at home in all
of them.” Daimler AG, 571 U.S. at 139 n.20. And that Defendant has consented to
suit and sued in California in unrelated cases does not mean that it has waived its
personal jurisdiction objections in this case. See Dow Chem. Co. v. Calderon, 422
F.3d 827, 835 (9th Cir. 2005).
II. Specific Jurisdiction
In the alternative, Plaintiffs argue that California has specific jurisdiction over
Defendant because Defendant indirectly solicited Palmer in California, and
Defendant has regular and continuous business contacts with California. To
establish specific jurisdiction over a nonresident defendant: (1) the defendant must
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purposefully direct his activities toward the forum or purposefully avail himself of
the forum; (2) the claim must arise out of or relate to the defendant’s forum-related
activities; and (3) the exercise of jurisdiction must be reasonable. Schwarzenegger,
374 F.3d at 802. Plaintiffs bear the burden of establishing the first two prongs. Id.
The first prong may be satisfied with facts sufficient to demonstrate either
purposeful direction or purposeful availment. See Schwarzenegger, 374 F.3d at 802.
Typically, tort claims follow the purposeful direction analysis and contract claims
follow the purposeful availment analysis. Glob. Commodities Trading Grp., Inc. v.
Beneficio de Arroz Choloma, S.A., 972 F.3d 1101, 1107 (9th Cir. 2020). But there
is not “a rigid dividing line” and both tests are relevant when both types of claims
are at issue. Id. Because Plaintiffs’ tort claim is substantially the same as their
contract claims, the first prong should be analyzed under the purposeful availment
analysis, see Sher v. Johnson, 911 F.2d 1357, 1362 (9th Cir. 1990), or under the
approach taken in Global Commodities, which keeps both tests in mind when both
tort and contract claims are alleged, 972 F.3d at 1107.
Under the purposeful availment analysis, courts look to whether the defendant
deliberately engaged in significant activities within the forum or created continuing
obligations between himself and forum residents. Burger King Corp. v. Rudzewicz,
471 U.S. 462, 475–76 (1985). Similarly, Global Commodities’s approach focuses
on whether the defendant has “voluntarily derived some benefit from [his] interstate
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activities such that [he] will not be haled into a jurisdiction solely as a result of
random, fortuitous, or attenuated contacts.” 972 F.3d at 1107–08 (internal
quotations omitted).
Here, Defendant has purposefully availed itself of or directed its conduct
toward California based on dozens of offices across California, over a thousand
employees in California, and millions of dollars of revenue generation from
California. See Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 141 S. Ct. 1017,
1022–23, 1026, 1028 (2021) (defendant conceded and court recognized that
defendant purposefully availed itself of the forum by advertising, selling, repairing,
and servicing its products in the forum); Burger King, 471 U.S. at 479–80 (defendant
had sufficient contacts with the forum because he entered into a “carefully structured
20-year relationship” with plaintiff that envisioned continuing contacts with the
forum where plaintiff’s enterprise was headquartered); Keeton v. Hustler Mag., Inc.,
465 U.S. 770, 772, 781 (1984) (defendant had sufficient contacts with the forum
because it sold at least 10,000 copies of its magazine in the forum each month).
Turning to the second prong, even when a defendant has reached out beyond
its home and exploited a market in the forum, the plaintiff’s claims still must arise
out of or relate to the defendant’s contacts with the forum, because the defendant is
not at home in the forum. Ford, 141 S. Ct. at 1025. In other words, there must be a
connection between the forum and the underlying controversy, principally an
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activity that is subject to the forum’s regulation. Id. For example, in Ford, specific
jurisdiction over a nonresident defendant was proper because the defendant
“systematically served a market in [the forum states] for the very vehicles that the
plaintiffs allege[d] malfunctioned and injured them in those States.” Id. at 1028.
But “[w]hen there is no such connection, specific jurisdiction is lacking regardless
of the extent of a defendant’s unconnected activities in the [forum].” Bristol-Myers
Squibb Co. v. Superior Ct. of California, San Francisco Cnty., 137 S. Ct. 1773, 1781
(2017); see also Goodyear, 564 U.S. at 930 n.6 (“[E]ven regularly occurring sales
of a product in a State do not justify the exercise of jurisdiction over a claim
unrelated to those sales.”).
Here, Plaintiffs have not shown how Defendant’s receipt of Palmer’s transfer
from California is sufficiently related to Defendant’s regular and continuous
business contacts with California. Because Plaintiffs have not alleged facts
sufficient to establish the second prong, they have failed to make a prima facie
showing of specific jurisdiction.
AFFIRMED.
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Kathleen Johnson v. Ubs Ag
Combined Opinion