2016 UT App 174
THE UTAH COURT OF APPEALS
THOMAS MOWER,
Appellant,
v.
RICHARD MCBRIDE NIBLEY,
Appellee.
Memorandum Decision
No. 20150410-CA
Filed August 18, 2016
Fourth District Court, Provo Department
The Honorable Claudia Laycock
No. 120401924
Douglas B. Thayer and Jordan K. Cameron,
Attorneys for Appellant
Mark F. James and Mitchell A. Stephens, Attorneys
for Appellee
JUDGE KATE A. TOOMEY authored this Memorandum Decision, in
which JUDGE J. FREDERIC VOROS JR. and SENIOR JUDGE PAMELA T.
GREENWOOD concurred.1
TOOMEY, Judge:
¶1 Thomas Mower appeals the district court’s dismissal of
his suit against Richard McBride Nibley, a resident of Japan, for
lack of general personal jurisdiction. Mower sought
compensatory and punitive damages for the destruction of
thousands of copies of a self-published book, titled ‚Straight
Talk from an American Cowboy: How to Achieve Business
1. Senior Judge Pamela T. Greenwood sat by special assignment
as authorized by law. See generally Utah R. Jud. Admin. 11-
201(6).
Mower v. Nibley
Success in MLM,‛ committed to Nibley’s possession. On appeal,
we must determine whether Nibley waived his right to object to
personal jurisdiction and whether Nibley is subject to general
personal jurisdiction as a result of his contacts with the state. As
to the first question, we conclude that he did not. And because
he is not domiciled in Utah and lacks sufficient contacts with the
state, we conclude Utah cannot exercise general personal
jurisdiction over Nibley. We therefore affirm.
BACKGROUND
¶2 In 2006, Mower wrote and self-published his book.2 He
then paid for its translation into Japanese and entrusted Nibley
with tens of thousands of copies to sell in Japan on Mower’s
behalf. At that time Nibley was employed by SISEL
International, LLC, a Utah company Mower owned, but at some
point before Mower began this action, Nibley’s employment was
terminated.
¶3 Shortly after Mower arranged for Nibley to sell his book,
Mower was sentenced to serve a thirty-three-month sentence in
federal prison for tax fraud. See United States v. Thompson, 518
F.3d 832, 838–49 (10th Cir. 2008). During his prison term, Mower
did not communicate with Nibley regarding the books. Nibley
continued selling the books, purportedly using the revenue to
fund the operating costs of selling them. As a favor, one of
Nibley’s friends in Japan agreed to store the books free of
charge. But by 2009, the proceeds from book sales were no
2. ‚‘When determining whether the trial court correctly granted
a motion to dismiss, we accept the factual allegations in the
complaint as true and consider them, and all reasonable
inferences to be drawn from them, in the light most favorable to
the nonmoving party.’‛ Hunsaker v. American HealthCare Capital,
2014 UT App 275, ¶ 9, 340 P.3d 788 (quoting Fenn v. Mleads
Enters., Inc., 2006 UT 8, ¶ 2, 137 P.3d 706).
20150410-CA 2 2016 UT App 174
Mower v. Nibley
longer enough to support operations, and the next year sales had
slowed to a trickle, if not to a complete stop. Nibley’s friend then
informed Nibley that he could no longer store the books without
charge, and Nibley allowed the warehouse owner to destroy the
remaining books in March 2010.
¶4 Nibley has lived in Japan for more than thirty years, and
has visited Utah only twice in the past ten years: once in 2008 for
his father’s funeral and again in 2011 for the birth of his
granddaughter. He had no direct personal contact with Mower
during either visit, but SISEL International served process on
Nibley for an unrelated legal action while he was in Utah for his
father’s funeral.
¶5 As relevant to Mower’s arguments, Nibley owned a
partial interest in a rental property in Utah until it was sold at a
sheriff’s sale shortly after Mower filed his complaint in 2013.
Nibley’s wife retains her own partial interest in the property.
According to Nibley’s wife, ‚*T+here is no formal written
agreement‛ regarding rent, and the renters pay a portion of the
‚rent money into *Nibley’s+ bank account on a monthly basis.‛
¶6 In January 2013, Mower served Nibley in Japan, through a
process server operating under the auspices of the United States
Consulate, suing under theories of conversion, unjust
enrichment, accounting, and constructive trust. Specifically, he
alleged that Nibley profited and continues to profit from the sale
of Mower’s books and demanded that Nibley return any books
still in his possession. Nibley did not respond or appear to
defend himself, and the court clerk entered default. See Utah R.
Civ. P. 55(a). Nearly twenty months later, Mower filed a motion
to enter judgment for the amount of $629,200, with post-
judgment interest.
¶7 In November 2014, Nibley responded with a pro se fill-in-
the-blank opposition form, in which he laid out his inability to
sell the books and the events leading up to their destruction. He
denied any wrongdoing and any responsibility for the
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Mower v. Nibley
destruction of the books. He did not raise a personal jurisdiction
objection, but did ask the court to deny Mower’s motion to enter
judgment and asked to dismiss the case.
¶8 Before a scheduled hearing on Mower’s motion to enter
judgment, Nibley filed two documents through counsel. In one,
he moved the court to set aside entry of default and to dismiss
Mower’s action for lack of personal jurisdiction. In the other, he
explained that his counsel’s appearance was limited to
challenging jurisdiction in order to void the entry of default, and
was not a general appearance.
¶9 At the hearing on the motions, Mower argued Nibley had
waived his right to challenge personal jurisdiction by
‚participating in this case‛ and by failing to raise the defense in
his initial response. The court determined that Nibley’s filing of
his pro se opposition and sending emails to Mower’s counsel
and court clerks did not amount to the degree and type of
participation sufficient to waive Nibley’s right to challenge
personal jurisdiction. Mower conceded that Utah could not
exercise specific personal jurisdiction over Nibley, and the court
rejected Mower’s claim that Nibley’s contacts with Utah were
sufficient to establish general personal jurisdiction. Accordingly,
the court granted Nibley’s motion to set aside entry of default
and dismissed Mower’s complaint for lack of personal
jurisdiction. Mower appeals.
ISSUES AND STANDARDS OF REVIEW
¶10 On appeal, Mower argues the district court erred in
dismissing his suit for lack of general personal jurisdiction. We
first address his argument that Nibley waived the right to
challenge personal jurisdiction. If Nibley did not, we must then
decide whether Nibley’s contacts with Utah are sufficient to
establish general personal jurisdiction.
20150410-CA 4 2016 UT App 174
Mower v. Nibley
¶11 Waiver presents a mixed question of law and fact. Pledger
v. Gillespie, 1999 UT 54, ¶ 16, 982 P.2d 572. ‚*W+hether the trial
court employed the proper standard of waiver presents a legal
question which is reviewed for correctness, but the actions or
events allegedly supporting waiver are factual in nature and
should be reviewed as factual determinations, to which we give
a district court deference.‛ Id.
¶12 ‚‘*A+n appeal from a pretrial jurisdictional decision made
only on documentary evidence presents legal questions which
we review for correctness.’‛ Hunsaker v. American HealthCare
Capital, 2014 UT App 275, ¶ 9, 340 P.3d 788 (quoting Fenn v.
Mleads Enters., Inc., 2006 UT 8, ¶ 7, 137 P.3d 706). Further, ‚if the
trial court proceeds on documentary evidence alone to
determine whether personal jurisdiction is proper, ‘the plaintiff
is only required to make a prima facie showing of personal
jurisdiction.’‛ Id. (quoting Neways, Inc. v. McCausland, 950 P.2d
420, 422 (Utah 1997)).
ANALYSIS
I. Waiver
¶13 Mower contends Nibley’s chance to challenge jurisdiction
ended when Nibley began participating in the suit by filing the
November 2014 opposition to Mower’s motion to enter
judgment without objecting to the court’s jurisdiction.3
3. On appeal, Nibley contends Mower’s waiver argument is
unpreserved. We disagree. ‚An issue is preserved for appeal
when it has been presented to the district court in such a way
that the court has an opportunity to rule on *it+.‛ Patterson v.
Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828 (alteration in original)
(citation and internal quotation marks omitted). Here, although
Mower did not raise the issue in his written opposition to
(continued<)
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Mower v. Nibley
¶14 Parties can waive an objection to jurisdiction by expressly
waiving or by participating in the litigation without timely
raising an objection or defense in a responsive pleading, such as
an answer or reply. See Utah R. Civ. P. 12(b)(2), (h). But the Utah
Supreme Court has held that in some circumstances a
defendant’s pro se response does not equate to a responsive
pleading. See, e.g., Parry v. Ernst Home Center Corp., 779 P.2d 659,
661 (Utah 1989) (determining that the defendant ‚did not waive
its jurisdictional claim through its pro se response‛ because it
had not asked for affirmative relief from the court); Fibreboard
Paper Products Corp. v. Dietrich, 475 P.2d 1005, 1005–06 (Utah
1970) (concluding that the defendant’s pro se letter denying
responsibility for the bill sued upon did not constitute an answer
or a general appearance). Indeed, even when the defendant
captions his pro se response ‚answer,‛ if the defendant merely
denies responsibility for the injury or fails to ask for affirmative
relief, the court has ruled that such a response cannot be
construed as an answer or general appearance. See Parry, 779
P.2d at 661; cf. Trembly v. Mrs. Fields Cookies, 884 P.2d 1306, 1310
n.2 (Utah Ct. App. 1994) (‚*T+he substance, not caption, of a
motion is dispositive in determining the character of the
motion.‛). Thus, if the defendant’s only participation in the
litigation before objecting to personal jurisdiction is a pro se
response that does not amount to a pleading or answer, the
defendant has not waived a jurisdiction objection. See id.
¶15 Here, for nearly two years after Mower filed this action,
Nibley did not respond or communicate with the court. Between
January and June of 2014, Nibley exchanged emails with
Mower’s counsel and corresponded with court clerks. But the
only document he filed with the court was his pro se
opposition—a typewritten boilerplate opposition form. In his
(