Fiore v. Walden

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

GINA FIORE; KEITH GIPSON, 
Plaintiffs-Appellants, No. 08-17558
v. D.C. No.
ANTHONY WALDEN; UNKNOWN  2:07-cv-01674-
AGENTS OF THE FEDERAL ECR-LRL
GOVERNMENT, OPINION
Defendants-Appellees.

Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Senior District Judge, Presiding

Argued and Submitted
February 12, 2010—San Francisco, California

Filed September 12, 2011

Before: Alfred T. Goodwin, Marsha S. Berzon, and
Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Berzon;
Dissent by Judge Ikuta

17191
 FIORE v. WALDEN 17195

COUNSEL

Robert A. Nersesian and Thea Marie Sankiewicz, Nersesian
& Sankiewicz, Las Vegas, Nevada, for the plaintiffs-
appellants.

Michael F. Hertz, Acting Assistant Attorney General, and
Barbara L. Herwig and Kelsi Brown Corkran, Attorneys,
Civil Division, Department of Justice, Washington, D.C., for
the defendants-appellees.
17196 FIORE v. WALDEN
OPINION

BERZON, Circuit Judge:

Federal law enforcement officers seized funds from passen-
gers who were temporarily in the Atlanta airport changing
planes. The travelers, Gina Fiore and Keith Gipson, explained
that the funds were legal gambling proceeds, not evidence of
drug transactions. Their story turned out to be true. Fiore and
Gipson claim the seizure and later efforts to institute forfei-
ture proceedings were unconstitutional. They sued in Las
Vegas, where they were heading, lived at least part time, and
suffered the inconvenience of arriving with absolutely no
money, as well as other financial injuries. The district court
dismissed this Bivens1 action against the federal officers for
lack of personal jurisdiction. We reverse and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

In July and August of 2006, Fiore and Gipson, professional
gamblers, traveled from Las Vegas, Nevada, where both
maintained residences, to casinos in Atlantic City, New Jer-
sey, and San Juan, Puerto Rico, before returning to Las Vegas.2
On their return trip on August 8, 2006, they left from San
Juan, boarded a connecting flight in Atlanta, Georgia, and
then flew to Las Vegas, their final destination.

In San Juan, an agricultural x-ray inspection and other addi-
tional screening showed no contraband in Fiore’s or Gipson’s
luggage. At a Transportation Security Administration (TSA)
1
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971).
2
The facts are taken from Fiore and Gipson’s first amended complaint
and from a declaration by the defendant. Of course, at this preliminary
stage, we do not know whether any of the facts alleged in the complaint
are true, but simply assume that they are. See Brayton Purcell LLP v.
Recordon & Recordon, 606 F.3d 1124, 1127 (9th Cir. 2010); Pebble
Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006).
 FIORE v. WALDEN 17197
checkpoint, Fiore and Gipson were subjected to heightened
security procedures because they were traveling on one-way
tickets. They were screened for minute traces of illegal drugs;
none was found. Search of their carry-on bags revealed
approximately $48,000 in Gipson’s carry-on bag and $34,000
in Fiore’s carry-on bag, all carried openly. Gipson also had
approximately $15,000 on his person. These funds, totaling
approximately $97,000 in United States currency, included
approximately $30,000 in seed money for gambling — their
“traveling bank” — brought with them from Las Vegas.3

After this cash was discovered, San Juan Drug Enforce-
ment Administration (DEA) Agent Michael Cuento and two
other agents arrived and questioned Fiore. Gipson was not
questioned directly, but stood by and participated in the con-
versation. Fiore explained that she and Gipson had been stay-
ing and gambling at the El San Juan Casino property. When
asked for identification, Fiore and Gipson showed their Cali-
fornia drivers’ licenses and stated that they had California res-
idences, as well as residences in Las Vegas.4 They further
informed the DEA agents “that Las Vegas was the final desti-
nation of most if not all of the funds in their possession” and
that they were returning to their Las Vegas residences. Agent
Cuento escorted Gipson and Fiore to their plane and told them
that they might be questioned further in Las Vegas. The two
therefore called their attorneys in Las Vegas and arranged to
meet them at the airport.

When they arrived at the Atlanta Hartsfield-Jackson Inter-
national Airport for their connecting flight to Las Vegas, nei-
ther Gipson nor Fiore left the transit area near the departure
gates. At their gate, DEA Agent Anthony Walden and another
DEA agent approached Fiore and began questioning her.
3
The first amended complaint notes that “Las Vegas [w]as the ordinary
static place where [the ‘traveling bank’ was] situated.”
4
According to the complaint, Fiore’s and Gipson’s residences in Las
Vegas are now their permanent residences.
17198 FIORE v. WALDEN
Fiore said again that she was not carrying contraband, weap-
ons, or drugs. She explained that she and Gipson were profes-
sional advantage gamblers5 and that the money in their
possession was their gambling bank and winnings. In addi-
tion, Fiore showed Walden her trip record,6 which dated back
to July 10, 2006, and listed casinos and gaming results. Gip-
son, sequestered from Fiore for questioning, explained that
the documents evidencing that his trip was for gambling were
in his checked bag.

After about ten minutes of questioning, another DEA agent
arrived in the boarding area with a drug-detecting dog. The
dog did not react to Fiore’s carry-on bag but pawed Gipson’s
bag once. The agents informed Fiore and Gipson that the
dog’s reaction sufficiently signaled contraband to indicate that
their money was involved in drug transactions and then seized
all the funds that Fiore and Gipson had in their possession.
Although Fiore and Gipson asked to be allowed at least taxi
fare for their arrival in Las Vegas, the agents denied the
request. Walden told Fiore and Gipson that if they later pro-
duced receipts showing the legitimacy of the funds, their
money would be returned. With this understanding, Fiore and
Gipson boarded their flight to Las Vegas. When they arrived
in Las Vegas, Fiore and Gipson learned that their checked
luggage also had been searched in Atlanta.

On August 30, 2006, and September 15, 2006, Fiore and
Gipson sent Walden, from Las Vegas, various documents
showing the legitimacy of their funds, including federal tax
returns demonstrating that they were professional gamblers;
the itinerary, hotel records, and receipts from their trip, which
5
Fiore and Gipson’s complaint states that they play “advantage gam-
bling,” meaning that they limit their play to legal games, such as poker,
in which they have a statistical edge over the casino or other competitors
because of their skill.
6
The complaint explains that “[s]uch logs are kept by professional gam-
blers as support for tax purposes.”
 FIORE v. WALDEN 17199
showed the legitimacy of their seized money; and a win
record on El San Juan Casino letterhead stationery stating that
Gipson left the hotel with over $30,000 in winnings immedi-
ately before leaving for Las Vegas via Atlanta. Fiore and Gip-
son asked that their money be returned to them as Walden had
promised.

The funds, however, were not returned to Fiore and Gipson.
Instead, the matter was forwarded to DEA headquarters in
Virginia for additional investigation.7 According to the com-
plaint, the DEA’s background searches on Fiore and Gipson
showed them to be “squeaky clean.” Nonetheless, according
to the complaint, Walden and another DEA agent provided a
false probable cause affidavit to the United States Attorney in
the Northern District of Georgia, to assist in bringing a forfei-
ture action. Specifically, Fiore and Gipson allege in the com-
plaint that this probable cause affidavit falsely stated that
Gipson had been uncooperative and had refused to respond to
questions; that Fiore and Gipson had given inconsistent
answers during questioning; and that there was sufficient evi-
dence for probable cause to forfeit the funds as drug proceeds.
Also, according to the complaint, Walden left out exculpatory
evidence he knew about when he submitted the affidavit: that
Fiore and Gipson had no history of unlawful drug use or
trade; that they had documentation showing them to be advan-
tage gamblers; that their bags had passed through an agricul-
tural x-ray and other inspections used for contraband
detection without incident; that Fiore and Gipson had pro-
vided actual receipts for most of the funds that they carried;
and that the $30,000 Gipson was carrying could be traced
directly to a legal source, his winnings at El San Juan Casino.
7
In his declaration, Walden states that after he seized the cash, he “im-
mediately transferred [it] to a secure location designated to store seized
cash” and that “[w]ithin approximately one hour of the seizure, [he] was
no longer in possession of the seized cash . . . [and] did not possess the
authority to return the cash” to Fiore and Gipson.
17200 FIORE v. WALDEN
The case was referred to Assistant United States Attorney
(AUSA) Dahil Goss. After determining that Walden had in
fact omitted information, with the result that the probable
cause affidavit he provided was misleading, Goss concluded
that there was no probable cause for the forfeiture of the
funds. Goss contacted Fiore and Gipson and offered to return
their funds in exchange for a release, presumably of any pos-
sible legal claims, but they refused to execute one. Nonethe-
less, Goss directed the DEA to return Fiore and Gipson’s
money. The $97,000 was returned to them in Las Vegas on
March 1, 2007, nearly seven months after the seizure at the
Atlanta airport and six months after Fiore and Gipson had
provided Walden with the requested documentation showing
the legal source of their funds.

Fiore and Gipson brought a Bivens action in the District of
Nevada against Walden and three other, unnamed DEA
agents or attorneys8 in their individual capacities, alleging that
Walden and the other agents had violated their Fourth
Amendment rights by: (1) seizing their money without proba-
ble cause; (2) continuing to hold the funds for nearly six
months after receiving information conclusively demonstrat-
ing the legal source of the cash; (3) knowingly compiling a
false and misleading probable case affidavit to support a for-
feiture action; and (4) referring the matter to the United States
Attorney for prosecution on the basis of deficient and/or falsi-
fied information, while willfully withholding known exculpa-
tory information.

Walden moved to dismiss for lack of personal jurisdiction,
under Fed. R. Civ. P. 12(b)(2), and for improper venue, under
Fed. R. Civ. P. 12(b)(3). The district court determined that
Walden’s search of Fiore’s and Gipson’s bags and initial sei-
zure of their funds occurred in, and was expressly aimed at,
Georgia. Therefore, the district court concluded, there was not
8
The unnamed DEA agents or attorneys were never served and are not
appellants here.
 FIORE v. WALDEN 17201
personal jurisdiction over Walden in Nevada.9 The district
court did not separately consider whether Walden’s actions
regarding the allegedly false probable cause affidavit justified
personal jurisdiction.

On appeal, Fiore and Gipson challenge dismissal of their
case for lack of personal jurisdiction over Walden, the only
defendant-appellee. They also argue that Nevada is the appro-
priate venue. We review de novo a district court’s rulings on
personal jurisdiction and improper venue. Brayton Purcell,
606 F.3d at 1127.

II. DISCUSSION

A. Personal Jurisdiction

[1] “‘When subject matter jurisdiction is premised on a
federal question, a court may exercise specific jurisdiction
over a defendant if a rule or statute authorizes it to do so and
the exercise of jurisdiction comports with the constitutional
requirement of due process.’ ” Myers v. Bennett Law Offices,
238 F.3d 1068, 1072 (9th Cir. 2001) (quoting AT&T Co. v.
Compagnie Bruxelles Lambert, 94 F.3d 586, 589 (9th Cir.
1996)). Where, as here, there is no applicable federal statute
governing personal jurisdiction, we look to the law of the
state in which the district court sits. See Fed. R. Civ. P.
4(k)(1)(A).

[2] Nevada’s long-arm statute permits personal jurisdiction
over a defendant unless the exercise of jurisdiction would vio-
late due process. Myers, 238 F.3d at 1072; Trump v. Eighth
Judicial Dist. Court, 857 P.2d 740, 747 (Nev. 1993); Nev.
Rev. Stat. 14.065(1). Our analysis therefore focuses exclu-
sively on due process considerations. The due process analy-
sis, in turn, centers on whether Walden has “certain minimum
contacts” with Nevada, such that the exercise of jurisdiction
9
The district court did not address venue.
17202 FIORE v. WALDEN
“does not offend ‘traditional notions of fair play and substan-
tial justice.’ ” Int’l Shoe Co. v. Wash., 326 U.S. 310, 316
(1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).

Our court uses a three-part test (the Schwarzenegger test)
for determining specific personal jurisdiction — that is, per-
sonal jurisdiction premised on the particular circumstances
underlying the lawsuit sought to be litigated:10

(1) The non-resident defendant must purposefully
direct his activities or consummate some transaction
with the forum or resident thereof; 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
relates to the defendant’s forum-related activities;
and

(3) the exercise of jurisdiction must comport with
fair play and substantial justice, i.e. it must be rea-
sonable.

Schwarzenegger, 374 F.3d at 802 (citation and internal quota-
tion marks omitted) (emphases added).

B. Operative Facts

In response to Fiore and Gipson’s first amended complaint,
Walden moved to dismiss for lack of personal jurisdiction and
improper venue. His motion included a declaration stating
10
There is no general jurisdiction over Walden, as he had no “continu-
ous and systematic . . . contacts” with Nevada. Helicopteros Nacionales
de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984); see also Schwar-
zenegger v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir. 2004).
 FIORE v. WALDEN 17203
that he was a police officer for the City of Covington, Geor-
gia, and was deputized as a federal narcotics investigator
assigned to the DEA Task Force Group 1 at the Atlanta air-
port. The purpose of the task force was to interdict illegal
drugs, seize the drugs and any proceeds found, and prosecute
individuals transporting illegal drugs or drug proceeds. Wal-
den also stated that (1) he is a Georgia resident who had never
resided, owned property, conducted business, or even been in
Nevada; (2) he intercepted Fiore and Gipson at the Atlanta
airport after he was informed by San Juan law enforcement
officers that Fiore and Gipson had boarded a plane to Atlanta
en route to their final destination, Las Vegas, Nevada; (3)
when he asked plaintiffs for identification, they presented
drivers’ licenses that “were not issued by the State of
Nevada”; (4) after the seizure, Walden and the other DEA
agents “immediately transferred the seized cash to a secure
location” for storage; (5) “[w]ithin approximately one hour of
the seizure, [Walden] was no longer in possession of the
seized cash”; and (6) Walden “did not possess the authority
to return the cash to [Fiore and Gipson] once it was seized.”11
Walden stated that he seized the funds because of concern that
Fiore and Gipson had approximately $97,000 in their posses-
sion and lacked sufficient documentation to substantiate the
legitimacy of the funds. He further declared that he did not
contact Fiore and Gipson’s attorney or anyone else in Nevada
to verify their explanations about the sources of the funds.

The district court did not conduct an evidentiary hearing
regarding personal jurisdiction.12 Consequently, “the plaintiff
11
Federal regulations confirm that Walden did not have legal authority
to return the money seized from Fiore and Gipson. See 21 C.F.R.
§§ 1316.72-1316.73 (detailing requirements for storage of property “sub-
ject to seizure” and specifying Special Agents-in-Charge — not deputized
local police such as Walden — as the officials “designated . . . to receive
and maintain” seized property); see 21 C.F.R. § 1316.71(e) (defining
“Special Agents-in-Charge” as DEA Special or Resident Agents-in-
Charge and Federal Bureau of Investigation Special Agents-in-Charge).
12
As far as appears in the record, Walden did not request an evidentiary
hearing.
17204 FIORE v. WALDEN
need only make ‘a prima facie showing of jurisdictional facts
to withstand the motion to dismiss.’ ”13 Brayton Purcell, 606
F.3d at 1127 (quoting Pebble Beach, 453 F.3d at 1154).
“ ‘[U]ncontroverted allegations in plaintiff’s complaint must
be taken as true,’ ” id. (quoting Rio Props., Inc. v. Rio Int’l
Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002)) (alteration
omitted), and, in deciding whether a prima facie showing has
been made, “the court resolves all disputed facts in favor of
the plaintiff.” Pebble Beach, 453 F.3d at 1154. Nonetheless,
“mere ‘bare bones’ assertions of minimum contacts with the
forum or legal conclusions unsupported by specific factual
allegations will not satisfy a plaintiff’s pleading burden.”
Swartz v. KPMG LLP, 476 F.3d 756, 766 (9th Cir. 2007).

[3] In determining whether there is personal jurisdiction,
we have drawn inferences from the facts alleged in the com-
plaint, but have not expressly addressed the standard for doing
so.14 Other circuits have been more explicit than we have
about the authority to draw reasonable inferences in favor of
the plaintiff in determining whether the plaintiff has made a
prima facie showing of personal jurisdiction over the defen-
dant.15 At the same time, the federal courts of appeal do not
13
“If the plaintiff succeeds in meeting that prima facie burden, then the
district court may still order an evidentiary hearing or the matter may be
brought up again at trial.” Metropolitan Life Ins. Co. v. Neaves, 912 F.2d
1062, 1064 n.1 (9th Cir. 1990).
14
See CE Distrib., LLC v. New Sensor Corp., 380 F.3d 1107, 1111 (9th
Cir. 2004) (holding that it is “reasonable to infer” that the defendant knew
its actions “would resonate in Arizona” because it knew that plaintiff was
based in Arizona); Peterson v. Highland Music, Inc., 140 F.3d 1313, 1320
(9th Cir. 1998) (holding that licensing agreements and other documents
with California companies “g[a]ve rise to a strong inference” that defen-
dants conducted negotiations with California companies, possibly in Cali-
fornia).
15
See Noonan v. Winston Co., 135 F.3d 85, 89 (1st Cir. 1998) (“Because
the district court dismissed plaintiffs’ claims without holding an evidenti-
ary hearing, we review the rulings de novo, . . . construing all inferences
in the plaintiffs’ favor.”); New Wellington v. Flagship Resort Dev., 416
 FIORE v. WALDEN 17205
draw unreasonable or far-fetched inferences in favor of the
plaintiff.16

[4] We agree with these various circuits regarding the stan-
dard for drawing inferences from the complaint when address-
ing personal jurisdiction questions: We will draw reasonable
inferences from the complaint in favor of the plaintiff where

F.3d 290, 294 (4th Cir. 2005) (“[C]ourts ‘must construe all relevant plead-
ing allegations in the light most favorable to the plaintiff, assume credibil-
ity, and draw the most favorable inferences for the existence of
jurisdiction.’ ” (quoting Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.
1989))); GCIU-Emp’r Ret. Fund v. Goldfarb Corp., 535 F.3d 1018, 1020
n.1 (7th Cir. 2009) (“In reciting the facts, we read the complaint liberally
with every inference drawn in favor of plaintiff and resolve all factual dis-
putes in favor of plaintiff.”) ; Steinbuch v. Cutler, 518 F.3d 580, 585 (8th
Cir. 2008) (“To survive a motion to dismiss, the plaintiff must state suffi-
cient facts in the complaint to support a reasonable inference that defen-
dants may be subjected to jurisdiction in the forum state.”); Fraser v.
Smith, 594 F.3d 842, 846 (11th Cir. 2010) (“We accept factual allegations
in the complaint as true to the extent that they are uncontested and, in
cases of conflict, construe all reasonable inferences in the plaintiffs’
favor.”); Pennington Seed, Inc. v. Produce Exch. No. 299, 457 F.3d 1334,
1338 (Fed. Cir. 2006) (“In reviewing the [personal jurisdiction] decision,
we accept a plaintiff’s well-pleaded factual allegations as true and draw
all reasonable inferences in its favor.”).
16
See Negron-Torres v. Verizon Commc’ns, Inc., 478 F.3d 19, 23 (1st
Cir. 2007) (“‘[W]e caution that . . . the law does not require us struthiously
to credit conclusory allegations or draw far-fetched inferences’ ” (quoting
Mass. Sch. of Law, Inc. v. Am. Bar Ass’n, 142 F.3d 26, 34 (1st Cir.
1998))); Robinson v. Overseas Military Sales Corp., 21 F.3d 502 (2d Cir.
1994) (“[W]e will not draw ‘argumentative inferences’ in the plaintiff’s
favor”); Autogenomics, Inc. v. Oxford Gene Tech. Ltd., 566 F.3d 1012,
1018 (Fed. Cir. 2009) (“Although we must resolve factual conflicts in
[plaintiff’s] favor, it is entitled to only those inferences that are reason-
able.”); Helmer v. Doletskaya, 393 F.3d 201, 209 (D.C. Cir. 2004)
(“While a district court must resolve all factual disputes in favor of the
plaintiff . . . ‘the court need not accept inferences drawn by plaintiffs if
such inferences are unsupported by the facts set out in the complaint.’ ”
(quoting Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir.
1984))).
17206 FIORE v. WALDEN
personal jurisdiction is at stake, and will assume credibility.
This approach is in line with the pleading standard set forth
by the Supreme Court in Ashcroft v. Iqbal, 129 S. Ct. 1937
(2009). See id. at 1949 (“A claim has facial plausibility when
the pleaded factual content allows the court to draw the rea-
sonable inference that the defendant is liable for the miscon-
duct alleged.”).

[5] Here, the key facts in the complaint include Fiore and
Gipson’s statements that they are Nevada residents; that at the
time the funds were seized, they both maintained residences
in Las Vegas to which they were returning; and that Walden
knew, at least by the time he wrote the probable cause affida-
vit, that the funds they had on their persons and in their carry
on luggage while changing planes in Atlanta were legitimate
proceeds of their gambling trade.

C. Application of the Schwarzenegger Test

Throughout the ensuing discussion, we concentrate on the
false affidavit/forfeiture proceeding aspect of this case,
because, as we explain below, we ultimately remand with
respect to the initial search and seizure claim, for consider-
ation of the application of the doctrine of pendent personal
jurisdiction. See Action Embroidery Corp. v. Atlantic Embroi-
dery, Inc., 368 F.3d 1174, 1180 (9th Cir. 2004); pp. 17225-27,
infra.

1. Purposeful Direction

The first part of the Schwarzenegger test is subdivided into
purposeful direction, which most often applies in tort cases,
and purposeful availment, which most often applies in con-
tract cases. 374 F.3d at 802; see Pebble Beach, 453 F.3d at
1155. Fiore and Gipson have alleged a tort action,17 which
calls for purposeful direction analysis.
17
Bivens actions, like the one brought here by Fiore and Gipson, are
constitutional tort claims against individual government officials. See
 FIORE v. WALDEN 17207
We analyze purposeful direction under the three-part test
derived from Calder v. Jones, 465 U.S. 783 (1984), com-
monly referred to as the Calder-effects test. See Brayton Pur-
cell, 606 F.3d at 1128; see also Calder, 465 U.S. at 788-91;
Schwarzenegger, 374 F.3d at 803. Under the Calder-effect
test, “ ‘the defendant allegedly must have [(a)] committed an
intentional act, [(b)] expressly aimed at the forum state, [(c)]
causing harm that the defendant knows is likely to be suffered
in the forum state.’ ” Brayton Purcell, 606 F.3d at 1128 (quot-
ing Yahoo! Inc. v. La Ligue Contre Le Racisme Et
L’Antisemitisme, 433 F.3d 1199, 1206 (9th Cir. 2006) (en
banc)).

[6] “[D]ue process permits the exercise of personal juris-
diction over a defendant who ‘purposefully directs’ his activi-
ties at residents of a forum, even in the ‘absence of physical
contacts’ with the forum.” Schwarzenegger, 374 F.3d at 803
(quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476
(1985) (alteration omitted)). Intentional torts, in particular,
can support personal jurisdiction over a nonresident defendant
who has no other forum contacts. Calder, 465 U.S. at 790; see
also McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. ___,
2011 WL 2518811 at *4-5 (Jun. 27, 2011) (plurality opinion).

a. Intentional Act

[7] The “intentional act” prong of the Calder-effects test is
satisfied in this case, as the district court recognized. “We

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971); see also Van
Strum v. Lawn, 940 F.2d 406, 408-10 (9th Cir. 1991) (holding that state
personal injury statutes of limitations apply to constitutional tort claims
brought under Bivens); Arnold v. United States, 816 F.2d 1306, 1311 (9th
Cir. 1987) (holding that the plaintiff’s Bivens claim failed because she
alleged only state-law tort claims, not constitutional tort claims). We do
not, of course, decide in this personal jurisdiction appeal any merits issues,
including whether a Bivens action is available and whether any immunities
apply.
17208 FIORE v. WALDEN
construe ‘intent’ in the context of the ‘intentional act’ test as
referring to an intent to perform an actual, physical act in the
real world, rather than an intent to accomplish a result or con-
sequence of that act.” Schwarzenegger, 374 F.3d at 806. Sub-
mitting a false and misleading probable cause affidavit and
referring the case for forfeiture proceedings in the absence of
probable cause were intentional acts. See, e.g., Bancroft &
Masters, Inc v. Augusta Nat’l Inc., 223 F.3d 1082, 1088 (9th
Cir. 2000) (sending a letter was an intentional act).

b. Express Aiming

The “express aiming” prong of the Calder-effects test pre-
sents a more difficult question. The district court reasoned
that “Walden’s intentional act — the search of Plaintiffs’ lug-
gage and seizure of their currency — was expressly aimed at
Georgia, not Nevada,” because Walden’s questioning of Fiore
and Gipson, his search of their luggage and his seizure of their
money all took place in Georgia. We may assume that is so.
But, the district court, as noted, did not consider the false
probable cause affidavit aspect of the case, as to which the
express aiming prong, we conclude, is satisfied.

[8] In general, where there was “individual targeting” of
forum residents — actions taken outside the forum state for
the purpose of affecting a particular forum resident or a per-
son with strong forum connections — we have held the
express aiming requirement satisfied. See Brayton Purcell,
606 F.3d at 1129-31; Pebble Beach, 453 F.3d at 1157; Dole
Food Co., Inc. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002);
Bancroft & Masters, 223 F.3d at 1087.18 At the same time, the
18
Even before Bancroft & Masters, the case that made explicit the
express aiming prong of the Calder-effects test, see 223 F.3d at 1087, the
case law in this circuit focused on individual targeting of those with
known, significant connections to the forum. See Panavision Int’l, L.P. v.
Toeppen, 141 F.3d 1316, 1321 (9th Cir. 1998) (holding that personal juris-
diction existed where “[t]he brunt of the harm . . . was felt in California,”
 FIORE v. WALDEN 17209
express aiming requirement is not satisfied where it is merely
foreseeable that there will be an impact on individuals in the
forum. Pebble Beach, 453 F.3d at 1156; Bancroft & Masters,
223 F.3d at 1087; Schwarzenegger, 374 F.3d at 805.

In Bancroft & Masters, we explained that “[t]he presence
of individualized targeting is what separates these cases from
others in which we have found the effects test unsatisfied.”
223 F.3d at 1088. In other words, the difference between
those cases in which harm is merely foreseeable in the forum
and those in which conduct is “expressly aimed” at the forum
is often the difference between an intended impact that is
either local or undifferentiated, and an intended impact that is
targeted at a known individual who has a substantial, ongoing
connection to the forum.

For example, the maintenance of a passive website did not
satisfy the express aiming requirement, even though the web-
site was viewed by forum residents, because there was no “in-
dividualized targeting” involved in “merely registering and
operating a passive informational website.” Brayton Purcell,
606 F.3d at 1130. Similarly, there was no express aiming in
Schwarzenegger, which involved an Ohio car dealership’s
unauthorized use of Arnold Schwarzenegger’s photograph in

and the defendant “knew Panavision would likely suffer harm there
because, although at all relevant times Panavision was a Delaware limited
partnership, its principal place of business was in California”); Gordy v.
Daily News, L.P., 95 F.3d 829, 833 (9th Cir. 1996) (finding personal juris-
diction where “[t]he prime targeting [arose] . . . from the fact that [plaintiff
was] an individual who live[d] in California”); Brainerd v. Governors of
the Univ. of Alberta, 873 F.2d 1257, 1259 (9th Cir. 1989) (holding that
there was personal jurisdiction over a defendant who “knew the injury and
harm stemming from his communications would occur in Arizona, where
[plaintiff] planned to live and work); Lake v. Lake, 817 F.2d 1416, 1423
(9th Cir. 1987) (holding that personal jurisdiction existed where defendant
“took . . . actions for the very purpose of having their consequences felt
in the forum state” and where those actions “amount[ed] to more than . . .
untargeted negligence”).
17210 FIORE v. WALDEN
local advertisements, none of which were circulated in Cali-
fornia, the forum in which Schwarzenegger brought suit. 374
F.3d at 799-800. The “express aim was local,” as the defen-
dant intended the advertisement at issue to have only local
effects. Id. at 807. The fact that the advertisement may have
had forum effects, such as diminished compensation due to
the “over-saturation of [Schwarzenegger’s] image,” id. at 800,
was not sufficient to satisfy the express aiming prong. Id. at
807.

[9] With respect to the allegedly false affidavit and referral
for forfeiture proceedings, the indications that Walden was
expressly targeting Fiore and Gipson in Nevada are strong.
From the outset, Walden must have known and intended that
his actions would have impacts outside Atlanta. Walden con-
fronted Fiore and Gipson at their boarding gate for a plane to
Las Vegas, after learning from agents in San Juan that they
had just flown from there. So he knew that they were merely
changing planes in Atlanta, not staying there. When Walden
spoke to them, Fiore and Gipson evidenced no connections
whatever to Georgia; they said they were going to Las Vegas,
and showed California drivers’ licenses. Thus, Walden
expressly aimed his actions at people and property he knew
from the outset were not local.19 See id.

Moreover, on the complaint’s allegations, Walden defi-
nitely knew, at some point after the seizure but before provid-
ing the alleged false probable cause affidavit, that Fiore and
19
The DEA agents in San Juan had been told about plaintiffs’ Nevada
connections. Fiore and Gipson’s complaint states that they
volunteered that they had residences in Las Vegas (now their per-
manent residences) and California, truthfully provided [the DEA
agent] with the additional information concerning their Las
Vegas residences, and truthfully indicated that Las Vegas was the
final destination of most if not all of the funds in their possession,
the originating destination for a substantial part of the currency
in their possession, and that they were returning to their resi-
dences in Las Vegas.
 FIORE v. WALDEN 17211
Gipson had a significant connection to Nevada. First, Fiore
and Gipson’s complaint states that “the funds were readily
identifiable [as] originating and returning to Las Vegas as the
ordinary static place where they were situated as plaintiffs’
bank for gambling.” The complaint then goes on to state that
“Walden . . . told plaintiffs in no uncertain terms that if they
later produced legal receipts demonstrating the legitimacy of
the funds, the funds would be returned.” Attempting to so
demonstrate,

[u]pon returning to their homes in Las Vegas, plain-
tiffs marshaled records within Las Vegas to comply
with defendant’s request and representation . . . On
August 30, 2006, plaintiffs forwarded the following
to Walden from Las Vegas: i. Copies of federal tax
returns showing that each plaintiff made their living
through gaming; ii. Receipts for their trip; iii. Travel
itinerary for the trip; and iv. Hotel records showing
that they gambled at such a high level that the casi-
nos would provide them rooms on a complimentary
(free) basis.

(emphasis added). At this point, the complaint alleges, “Wal-
den necessarily recognized that in addition to a ‘bank’ held by
Gipson for his seed money in gaming and necessarily origi-
nating in Nevada, the seized funds included at least
$30,000.00 in cash received from legal gaming win[nings] in
Puerto Rico.” The complaint also alleges that “[a]ll defen-
dants recognized at all times that the destination of the funds
at the time of the seizure was Las Vegas, Nevada, and that a
substantial amount of the currency had also originated at Las
Vegas, Nevada.”

[10] Finally, the complaint alleges that after Fiore and Gip-
son arrived in Las Vegas, “either Walden or Defendant C,
with Walden’s acquiessance [sic] and encouragement,
searched data bases for background on plaintiffs including
data bases compiled and maintained in Nevada,” and that
17212 FIORE v. WALDEN
“[t]hese searches indicated that the plaintiffs were ‘squeaky
clean.’ ” Moreover,

[a]t the time that the probable cause affidavit was
drafted, Walden and defendant C recognized that the
funds were not subject to forfeiture and that they had
authority and duty to return or cause the return of the
seized . . . funds to plaintiffs in Las Vegas. . . [And]
any reasonable officer acting in like or similar cir-
cumstances would have returned the seized funds to
the plaintiffs in Las Vegas.

“Nevertheless, despite demand, despite knowledge of inno-
cence, and despite the duty to return the funds, the funds were
not returned to Las Vegas as required.” Finally, according to
the complaint, the funds ultimately were returned to Fiore and
Gipson in Las Vegas, by the prosecutor to whom the case had
been referred after Walden submitted the false affidavit.
Taken together, these allegations indicate that at the time the
assertedly false affidavit was composed and filed, Walden
recognized that the plaintiffs had significant connections to
Nevada, particularly with respect to the funds for which for-
feiture was being sought.

For the purposes of personal jurisdiction, it does not matter
whether Fiore and Gipson were legal residents of Nevada or
whether they simply had a significant connection to the
forum, such that Walden’s actions were “ ‘performed with the
purpose of having’ its ‘consequences felt’ by someone in [Las
Vegas].” Ibrahim v. Dep’t Homeland Sec., 538 F.3d 1250,
1259 (9th Cir. 2008); see also Brainerd, 873 F.2d at 1259.
Ibrahim, for example, concerned a woman from Malaysia
who had studied at Stanford but was leaving, permanently, on
the day of the incident that gave rise to the lawsuit. 538 F.3d
at 1253. The defendant, a resident of Virginia who had no ties
to California, had from the Transportation Security Intelli-
gence Service’s office in Washington, D.C., instructed San
Francisco police to detain Ibrahim after her name appeared on
 FIORE v. WALDEN 17213
the federal government’s No-Fly List. Id. at 1253, 1258. We
held the purposeful impact on Ibrahim in San Francisco suffi-
cient to establish personal jurisdiction over the out-of-state
defendant, because it was apparent to the defendant that his
order’s consequences would be felt in San Francisco. Id. at
1258-59. This was so even though the defendant did not initi-
ate the phone call that resulted in him instructing the police
in San Francisco to detain Ibrahim. Id. at 1258. Whether Ibra-
him was a California resident at the time of her detention was
not discussed in the case, indicating that her residence did not
matter.

Similarly, in Brainerd, a defamation case, Brainerd, the
plaintiff had accepted a tenured position with the University
of Arizona, after which the defendant made defamatory state-
ments about him to his new employer. 873 F.2d at 1258.
Whether Brainerd was an Arizona resident at the time the
defamatory statements were made was not a factor in the
opinion’s analysis. Instead, Brainerd’s known connection to
Arizona was sufficient to establish personal jurisdiction in
Arizona over the defendant, a resident of Canada whose only
contacts with Arizona consisted of communications with the
University of Arizona regarding the plaintiff. Id. at 1258-59.
The defendant “knew the injury and harm stemming from his
communications would occur in Arizona, where Brainerd
planned to live and work.” Id. at 1259 (emphasis added).

In this case, the allegations in the complaint, taken as true
for these purposes, establish that Walden necessarily recog-
nized, at least by the time he wrote the probable cause affida-
vit, that the plaintiffs had a connection to Nevada that was at
least as strong as in Ibrahim, in which the plaintiff left the
forum state the day after the incident giving rise to the suit,
never to return, 538 F.3d at 1253, or in Brainerd, where the
plaintiff only planned to live and work in the forum where the
injury occurred. 873 F.2d at 1259.

[11] Thus, whether Fiore and Gipson were residents of
Nevada at the time of the filing of the false probable cause
17214 FIORE v. WALDEN
affidavit is not determinative of the question of personal juris-
diction over Walden. Moreover, as in Ibrahim and Brainerd,
it is not relevant who initiated the contacts with Nevada. See
Ibrahim, 538 F.3d at 1258-59; Brainerd, 873 F.2d at 1259.
Instead, the critical factor is whether Walden, knowing of
Fiore and Gipson’s significant connections to Nevada, should
be taken to have intended that the consequences of his actions
would be felt by them in that state.

As to that issue, our precedents regarding personal jurisdic-
tion in cases concerning fraud or similar causes of action are
informative. That case law firmly establishes that if a defen-
dant is alleged to have defrauded or similarly schemed against
someone with substantial ties to a forum, the “expressly
aimed” factor is met, even if all the defrauding activities
occur outside the forum.

In Bancroft & Masters, for example, the defendant, a com-
pany based in Georgia, sent a letter to the company in Vir-
ginia that is the sole registrar of domain names in the United
States, allegedly for the purpose of misappropriating a Cali-
fornia company’s domain name for its own use. 223 F.3d at
1087. This court held that the letter, sent from Georgia to Vir-
ginia, “was expressly aimed at California because it individu-
ally targeted [plaintiff], a California corporation doing
business almost exclusively in California” and “the effects of
the letter were primarily felt, as [defendant] knew they would
be, in California.” Id. at 1088.

Similarly, Metropolitan Life, decided before this court
explicitly adopted the “express aiming” analysis, held that
personal jurisdiction existed in California over Geneva Gam-
brell, an Alabama resident who purposefully defrauded James
Neaves, a California resident, by sending a letter to an insur-
ance company representing that Gambrell was entitled to a
payment that she knew actually belonged to Neaves. Id. at
1064-65. Gambrell sent the letter to the insurance company in
California, rather than mailing it to the company’s headquar-
 FIORE v. WALDEN 17215
ters in New York, but the court explained that the location to
which the letter was mailed did not matter. Id. at 1065. What
mattered, instead, was that in “address[ing] the envelope to
Metropolitan, she was purposefully defrauding Neaves in Cal-
ifornia.” Id.

The situation here is similar to those in Bancroft & Masters
and Metropolitan Life. The complaint alleges that Walden
fraudulently executed a false and misleading probable cause
affidavit, used it to encourage the U.S. Attorney in Georgia to
prosecute a forfeiture action, and thereby sought to obtain the
funds for the Atlanta DEA.20 These allegations are analogous
to an allegation that Walden attempted to defraud Fiore and
Gipson of the seized funds. See Rivera v. Philip Morris, Inc.,
395 F.3d 1142, 1155 (9th Cir. 2005) (listing the elements of
fraud under Nevada law). According to the complaint, Wal-
den falsely and with misleading omissions represented in the
probable cause affidavit that the Atlanta DEA was entitled to
the funds he knew rightfully belonged to Fiore and Gipson,
whom he knew had a significant connection to Nevada. And
the fraudulent execution of the probable cause affidavit was
intended to assist in the retention and eventual forfeiture of
Fiore and Gipson’s funds, actions which, Walden knew,
would have their consequences felt in Las Vegas, see Ibra-
him, 538 F.3d at 1259, the location to which he knew the
funds should rightfully have been returned. Moreover, after
Fiore and Gipson forwarded all of their documentation, Wal-
den likely knew, if he did not know before, that Fiore and
Gipson were professional gamblers with significant ties to
Nevada and that seizing and attempting to keep their “bank”
and their earnings would disrupt their business activities in
Nevada. See Bancroft & Masters, 223 F.3d at 1087 (holding
that the express aiming requirement was satisfied when defen-
20
Had the forfeiture action been successful, the funds would have been
transferred “to any Federal agency or to any State or local law enforce-
ment agency which participated directly in the seizure or forfeiture of the
property.” 21 U.S.C. § 881(e)(1)(A).
17216 FIORE v. WALDEN
dant sent a letter to a company in Virginia with the alleged
intent and result of disrupting the plaintiff’s California busi-
ness).

In sum, with regard to the filing of the false probable cause
affidavit, Walden individually targeted Fiore and Gipson, as
he was aware of their significant connection to Nevada and of
the likely impact of his defrauding actions on their property
and business in Nevada. Under our case law, these facts sat-
isfy the express aiming prong of the Calder-effects test.

c. Foreseeable Harm

[12] The final prong of the Calder-effects test is the
requirement that the conduct at issue caused foreseeable harm
in the forum. We “do[ ] not require that the ‘brunt’ of the
harm be suffered in the forum.” Brayton Purcell, 606 F.3d at
1131 (quoting Yahoo!, 433 F.3d at 1207). Instead, the
foreseeable-harm “element is satisfied when defendant’s
intentional act has ‘foreseeable effects’ in the forum.” Id. “If
a jurisdictionally sufficient amount of harm is suffered in the
forum state, it does not matter that even more harm might
have been suffered in another state.” Yahoo!, 433 F.3d at
1207.

[13] The foreseeable harm factor, thus understood, is read-
ily satisfied here. During their initial encounter, Walden knew
from their plane tickets, and from the San Juan DEA agent,
that Fiore and Gipson were heading to Las Vegas, along with
their $97,000. Moreover, Fiore and Gipson had explained at
the airport that they were professional gamblers, and Fiore
provided some documentation regarding her funds. After
arriving in Nevada, Fiore and Gipson provided additional
documentation of the legitimacy and sources of the funds.
Consequently, Walden knew, by the time he wrote the fraudu-
lent probable cause affidavit, that the money seized repre-
sented their professional earnings. The documentation also
demonstrated that he had seized their $30,000 “bank,” which
 FIORE v. WALDEN 17217
they needed to pursue their trade in Nevada. Although the
funds were eventually returned to Fiore and Gipson, it is a fair
inference from the complaint that the return was delayed
while the prosecutor considered whether to go forward with
a forfeiture action on the basis of the false probable cause
affidavit and sought, unsuccessfully, to forestall a lawsuit
such as this one through execution of a release. The delay in
returning the funds to Fiore and Gipson in Las Vegas caused
them foreseeable harm in Nevada.

***

[14] Taken as a whole, then, Fiore and Gipson’s complaint
satisfies the Calder-effects test. The complaint’s allegations
establish that, by falsifying the probable cause affidavit and
attempting to secure permanently for the Atlanta DEA the
seized funds, Walden committed (a) intentional acts that (b)
individually targeted Fiore and Gipson in Nevada, and thus
were expressly aimed at Nevada, and (c) caused foreseeable
harm in Nevada. “An individual injured in [Nevada] need not
go to [Georgia] to seek redress from persons who, though
remaining in [Georgia] knowingly cause[d] injury in
[Nevada].” Calder, 465 U.S. at 790. Accordingly, Fiore and
Gipson have made a prima facie showing of purposeful direc-
tion. See Brayton Purcell, 606 F.3d at 1128-31.

2. Forum-Related Conduct

We turn to the second part of the Schwarzenegger test:
forum-related conduct. 374 F.3d at 802.

This circuit “follows the ‘but for’ test” to determine forum-
related conduct. Menken v. Emm, 503 F.3d 1050, 1058 (9th
Cir. 2007) (quoting Myers, 238 F.3d at 1075). Fiore and Gip-
son must show that they would not have suffered the alleged
injuries in Nevada “but for” Walden’s false probable cause
affidavit and attempt to facilitate a forfeiture prosecution. See
17218 FIORE v. WALDEN
id. As in Menken, the standard is “easily met” here. Id. at
1059.

[15] Fiore and Gipson have alleged that they would not
have been deprived of their “bank” and the proceeds of their
gambling trip for nearly seven months but for the seizure of
all of their money in Atlanta, combined with Walden’s
actions that helped delay the return of the funds. Had Walden
not filed the false probable cause affidavit, one can infer, the
funds would have been returned considerably sooner. The
forum-related conduct factor is therefore present.

3. Reasonableness Determination

[16] As Fiore and Gipson have met their burden of satisfy-
ing the first two parts of the Schwarzenegger test for estab-
lishing personal jurisdiction in Nevada, the burden shifts to
Walden to satisfy the third part — “ ‘present[ing] a compel-
ling case’ that the exercise of jurisdiction would not be rea-
sonable” in Nevada. Menken, 503 F.3d at 1057 (quoting
Schwarzenegger, 374 F.3d at 802). To determine reasonable-
ness, we balance seven factors:

[(a)] the extent of the defendants’ purposeful inter-
jection into the forum state’s affairs; [(b)] the burden
on the defendant of defending in the forum; [(c)] the
extent of conflict with the sovereignty of the defen-
dants’ state; [(d)] the forum state’s interest in adjudi-
cating the dispute; [(e)] the most efficient judicial
resolution of the controversy; [(f)] the importance of
the forum to the plaintiff’s interest in convenient and
effective relief; and [(g)] the existence of an alterna-
tive forum.

Id. at 1058 (quoting CE Distribution, LLC v. New Sensor
Corp., 380 F.3d 1107, 1112 (9th Cir. 2004)).
 FIORE v. WALDEN 17219
a. Extent of Purposeful Interjection into Affairs of
Forum State

Regarding the first factor, Walden argues that because the
initial search and seizure occurred in Georgia, his actions did
not inject him into the affairs of Nevada. We have recognized
that circumstances may exist where “the level of purposeful
injection into the forum supports a finding of purposeful
availment yet still weighs against the reasonableness of juris-
diction.” Dole Food, 303 F.3d at 1115. But that hypothetical
situation does not exist here.

When Walden sought out Fiore and Gipson at their board-
ing gate at the Atlanta airport, he knew that their presence in
Georgia was fleeting, and that they were going to Nevada.
Without probable cause, he seized all of Fiore and Gipson’s
money, approximately $97,000, which also was destined for
Nevada. Even if Walden did not know at the time he seized
the funds that Fiore and Gipson had ongoing, substantial con-
nections to Nevada, he necessarily learned of these connec-
tions at some point before providing the alleged false
probable cause affidavit and referring the case for forfeiture
proceedings.

[17] As it turned out, the impact of the intentional torts
alleged, which involved taking a large sum of money from
Fiore and Gipson, would necessarily have their primary
impact where the funds were meant to be kept and used,
Nevada. As an airport law enforcement officer, Walden was
necessarily aware that his actions would often have their prin-
cipal impact outside of Georgia, as many of the people he
investigates are in Atlanta only on their way to somewhere else.21
21
The Atlanta airport is a major transportation hub. A fact sheet pub-
lished by the airport states that, since 1998, the Atlanta airport has been
the busiest passenger airport in the world, with an average of more than
240,000 passengers a day. See Fact Sheet, Hartsfield-Jackson Atlanta Int’l
Airport (2011), available at http://www.atlanta-airport.com/Passenger/pdf/
17220 FIORE v. WALDEN
In that sense, Walden’s job necessitates regularly interjecting
himself into affairs of other jurisdictions. By preventing the
$97,000 from reaching the intended destination, Nevada, Wal-
den prevented Fiore and Gipson from using their legitimate
earnings there, and deprived Nevada banking and the Nevada
tax base of the money for a considerable time. In short,
although he never stepped foot in Nevada, Walden’s “ ‘pur-
poseful interjection into [Nevada] was significant.’ ” Ibrahim,
538 F.3d at 1259 (quoting Ziegler v. Indian River County, 64
F.3d 470, 475 (9th Cir. 1995)).

b. Burden of Defending in the Forum

Concerning the second factor, Walden maintains that he
would be burdened because he has never resided, visited,
owned property, or conducted business in Nevada. Were Wal-
den a local small business person or an airport employee, his
argument might well have force. But in fact, Walden was
working as a federal law enforcement officer, which is the
only reason he could seize the funds or seek to facilitate their
forfeiture.

When federal employees are sued under Bivens, the gov-
ernment, as a rule, provides for their defense, and, ultimately,
indemnifies them. See 28 C.F.R. § 50.15. As Fiore and Gip-
son pointed out in their brief to this court, Walden appeared
in Nevada “represented by the world’s largest law firm with
offices in all fifty states and providing defense free of charge
(The Office of the United States Attorney).” On appeal, Wal-
den is represented by the appellate staff of the Civil Division

Fact_Sheet_2011.pdf (last viewed Jul. 13, 2011). In August 2006, the
month Fiore and Gipson transferred planes in Atlanta, more than 3.6 mil-
lion passengers took flights arriving at the Atlanta airport, and approxi-
mately the same number boarded flights leaving the Atlanta airport. See
Monthly Airport Traffic Report, Dep’t of Aviation, Hartsfield-Jackson
Atlanta Int’l Airport (Aug. 2006), available at http://www.atlanta-
airport.com/docs/Traffic/200608.pdf (last viewed Jul. 13, 2011).
 FIORE v. WALDEN 17221
of the Department of Justice in Washington, D.C., which
often appears in this court. Fiore and Gipson, in contrast, had
to retain counsel to seek redress for their alleged constitu-
tional injuries. Walden’s burden in defending this case is thus
small as compared to the likely burden on Fiore and Gipson
were the case brought in Georgia. This factor therefore does
not weigh in favor of Walden, although it would in all proba-
bility weigh in favor of many airport-connected defendants
not associated with the federal government.

c. Extent of Conflict with Sovereignty of
Defendant’s State

The third factor, the extent of conflict with the sovereignty
of Georgia, favors Fiore and Gipson. This is a federal action
that will be resolved in federal court. The federal government,
not Georgia, was the entity on whose behalf the funds were
seized and retained. And as Fiore and Gipson have no connec-
tion to Georgia, Goergia has no interest in protecting their
interests. Consequently, redress of Walden’s tortious conduct
that injured Nevada residents in Nevada will not “infringe on
the sovereignty of [Walden’s] home state of [Georgia].” Ibra-
him, 538 F.3d at 1259.

d. Interest of Forum State in Adjudicating the
Dispute

[18] Nevada has “ ‘a strong interest in providing an effec-
tive means of redress for its residents who are tortiously
injured.’ ” Id. (quoting Ziegler, 64 F.3d at 475). Fiore and
Gipson are Nevada residents; a substantial portion of their
$97,000 that Walden seized originated in Nevada; the money
was en route to Nevada when seized; the seized money was
destined to enter Nevada’s economy and tax base; the money
eventually was returned to Fiore and Gipson in Las Vegas,
Nevada; and Fiore and Gipson have incurred considerable
attorneys’ fees in Nevada in securing the return of their
unlawfully seized, legitimate earnings and in filing this action
17222 FIORE v. WALDEN
to redress the financial injuries they suffered in Nevada. For
all these reasons, Nevada has a considerable interest in adjudi-
cating this dispute. See id.

e. Most Efficient Resolution of the Controversy

The fifth factor concerns efficiency of the forum, a consid-
eration that turns primarily on the location of witnesses and
evidence. See Menken, 503 F.3d at 1060-61. Fiore and Gipson
represent that their witnesses likely will include: three people
from San Juan, Puerto Rico; three from Atlanta, Georgia; one
from Quantico, Virginia; and at least Fiore and Gipson from
Las Vegas, Nevada. If Walden places at issue Fiore’s and
Gipson’s reputations as proficient, practicing gamblers, addi-
tional Nevada witnesses likely will be necessary.

Fiore and Gipson also emphasize that their documentation
was generated in and is located in Nevada. These documents,
including voluminous records sent to Walden from Nevada,
which evidence that Fiore and Gipson are professional gam-
blers and that the cash in their possession, unremarkable given
their trade, did not provide probable cause for Walden’s con-
tinued seizure and attempted forfeiture of their funds. More-
over, Fiore and Gipson argue that most of the documentation
relevant to Walden’s actions is located in the Department of
Justice in Washington, D.C., in the DEA headquarters in
Quantico, Virginia, or in Nevada, not in Georgia.

In contrast, Walden argues only that the witnesses in Geor-
gia are the most important, that the “operative versions” of
Fiore and Gipson’s documents are “those received by DEA in
Georgia.”

Overall, this factor is fairly evenly balanced, weighing, if
at all, only slightly in favor of Fiore and Gipson.
 FIORE v. WALDEN 17223
f. Importance of Forum to Plaintiffs’ Convenient
and Effective Relief

The sixth factor, the importance of Nevada to Fiore and
Gipson’s convenient and effective relief, generally is not
given much weight in this circuit. See Dole Food, 303 F.3d
at 1116 (noting that “in this circuit, the plaintiff’s convenience
is not of paramount importance”). It does, however, weigh in
Fiore and Gipson’s favor. Fiore and Gipson are Nevada resi-
dents; the seizure of their gambling proceeds by Walden
occurred as they were changing planes in Georgia, a state to
which they appear to have had no other connection. All of
their financial injury was realized in Nevada, which is also the
location of their documentation. Fiore and Gipson also have
a continuing relationship with a Nevada law firm. For all
these reasons, Nevada is a convenient and effective forum for
them.

g. Existence of an Alternative Forum

For the reasons given in evaluating the preceding six fac-
tors, although Georgia is an available forum in the sense that
the suit against Walden could have been brought there, Geor-
gia is not a preferable alternative to Nevada. In addition, at
this preliminary stage of proceedings, the parties have not had
the benefit of discovery to identify the other DEA employee
who made relevant decisions regarding the false affidavit and
attempt to instigate forfeiture proceedings while retaining the
seized funds. According to the complaint, that individual
operated from Virginia. As to him or her, Georgia might not
be an available forum, but Nevada would be, for the same rea-
son it is a proper forum for suit against Walden.

***

[19] Taken as a whole, the seven-factor reasonableness
analysis disfavors Georgia as a forum, and, overall, mildly
favors Nevada. Walden has not come close to making a “com-
17224 FIORE v. WALDEN
pelling case” that exercise of jurisdiction over him in Nevada
would be unreasonable. See Schwarzenegger, 374 F.3d at 802.

4. Conclusion

Due process is met when there is “ ‘a degree of predictabil-
ity to the legal system that allows potential defendants to
structure their primary conduct with some minimum assur-
ance as to where that conduct will and will not render them
liable to suit.’ ” Burger King Corp v. Rudzewicz, 471 U.S.
462, 472 (1985) (quoting World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297 (1980)). The actions related to
the false probable cause affidavit satisfy the express aiming
prong, as well as the other requirements for personal jurisdic-
tion. Under Calder and Schwarzenegger, it is reasonable and
comports with traditional notions of fair play and substantial
justice for Fiore and Gipson to call Walden to answer in
Nevada for those deliberate actions.

That is not to say, and we are not holding, that intentional
tortious conduct aimed at a person where he or she is in transit
at an airport is sufficient, standing alone, to confer personal
jurisdiction over an airport-connected official or employee. In
this case, Walden did much more: He individually targeted
Fiore and Gipson in Nevada by creating a false and mislead-
ing probable cause affidavit and thus illegally seeking to fos-
ter the forfeiture of the funds to benefit the Atlanta DEA. His
conduct in doing so was expressly aimed at Nevada because
at that point, if not before, he knew that Fiore and Gipson had
ongoing and substantial connections to Nevada. If, as alleged,
he also knew that there was no legitimate reason to seek for-
feiture of the funds, his actions amounted to an attempt to
defraud Nevada residents. Moreover, the traditional weight
given to a defendant’s inconvenience in having to litigate in
a forum in which he has few contacts does not apply in this
case, given that Walden can be represented just as easily by
the United States Attorney’s Office in Nevada as by the
Office in Georgia.
 FIORE v. WALDEN 17225
[20] Under these circumstances, the district court erred in
concluding that it lacked personal jurisdiction over Walden, at
least as to the portion of Fiore and Gipson’s complaint per-
taining to the false probable cause affidavit and resulting
delay in returning the funds.

C. Pendent Personal Jurisdiction

Under our case law, the district court may exercise pendant
personal jurisdiction over the remainder of Fiore and Gipson’s
claims even if there would not be personal jurisdiction over
them standing alone. Action Embroidery Corp. v. Atlantic
Embroidery, Inc., 368 F.3d 1174, 1181 (9th Cir. 2004). Action
Embroidery was the first case in this court adopting the doc-
trine of pendent personal jurisdiction, id. at 1181, under which
“a court may assert . . . jurisdiction over a defendant with
respect to a claim for which there is no independent basis of
personal jurisdiction so long as it arises out of a common
nucleus of operative facts with a claim in the same suit over
which the court does have personal jurisdiction.” Id. at 1180.
The facts underlying a particular claim need not exactly track
the facts underlying the claims for which there is personal
jurisdiction, so long as the core facts are the same. See CE
Distrib., 380 F.3d at 1113-14.22

Here, the core facts of all of Fiore and Gipson’s claims
arise out of the same incident: Walden’s seizure of their funds
at the Atlanta airport. When he seized their funds, Walden
knew that Fiore and Gipson were traveling to Las Vegas and
that they had no connection to Georgia beyond their transit
through the airport. Walden first individually targeted Fiore
and Gipson when he confronted them at their gate as they
22
In CE Distribution, this court approvingly cited a Seventh Circuit
opinion, Channell v. Citicorp Nat’l Svcs., Inc., 89 F.3d 379, 385 (7th Cir.
1996), which noted that only a “loose factual connection between the
claims” is necessary for the purposes of pendent jurisdiction. CE Distrib.,
380 F.3d at 1114.
17226 FIORE v. WALDEN
were about to board, and the funds then seized were the same
funds as to which forfeiture was sought through the submis-
sion of the false affidavit. Further, and critically, the false
affidavit was false — or not — in its description of the events
at the Atlanta airport surrounding the seizure. So the same
facts will have to be developed with regard to the search and
seizure and false affidavit claims. Consequently, even if those
facts are not sufficient independently to give rise to personal
jurisdiction over Walden for the initial seizure, they weigh
strongly in favor of the exercise of pendent personal jurisdic-
tion.

In Action Embroidery, this court accepted for purposes of
the appeal the defendant’s contention that there was no per-
sonal jurisdiction over state-law claims standing alone, but
held that the district court could exercise pendent personal
jurisdiction over them. 368 F.3d at 1180. We follow the same
course here and remand to the district court “to decide
whether to retain or dismiss the pendent [search and seizure]
claims.” Id. at 1181.

D. Venue

Although Walden raised the defense of improper venue in
the district court, the issue was not addressed once the court
determined that there was no personal jurisdiction over Wal-
den in Nevada. Because we have concluded otherwise, we
also consider his defense of improper venue, which he pur-
sues on appeal.

The controlling statute provides in relevant part: “A civil
action wherein jurisdiction is not founded solely on diversity
of citizenship may, except as otherwise provided by law, be
brought only in . . . a judicial district in which a substantial
part of the events or omissions giving rise to the claim
occurred.” 28 U.S.C. § 1391(b)(2) (emphasis added). Walden
contends that Nevada is an improper venue for this action
 FIORE v. WALDEN 17227
because it has no relationship to the event about the seizure
of Fiore and Gipson’s $97,000 at the Atlanta airport.23

“[I]n a tort action, the locus of the injury [is] a relevant fac-
tor” in making this determination. Myers, 238 F.3d at 1076.
In Myers, the fact that “at least one of the ‘harms’ suffered by
Plaintiffs . . . was felt in Nevada” was sufficient to make
venue proper in Nevada. Id. Fiore and Gipson similarly suf-
fered harm in Nevada. All the economic injuries suffered by
Fiore and Gipson were realized in Nevada, including their
loss of use and interest on the funds for nearly seven months.
23
Walden relies on Leroy v. Great W. United Corp., 443 U.S. 173
(1979), and Sutain v. Shapiro & Lieberman, 678 F.2d 115 (9th Cir. 1982)
in arguing that Fiore and Gipson cannot establish venue under 28 U.S.C.
§ 1391(b)(2). Both of these cases, however, addressed § 1391(b) as it read
before amendments contained in the present version. Those amendments
changed language that had limited venue to districts “in which the claim
arose,” to provide that venue lies where “a substantial part of the events
or omissions giving rise to the claim occurred.” We have recognized this
distinction and noted that Leroy no longer can be used as Walden main-
tains. Newton v. Thomason, 22 F.3d 1455, 1464 & n.8 (9th Cir. 1994).
Moreover, in Sutain, the only event that occurred in the forum in question
was the appearance of a partner of the defendant accounting firm in Tax
Court, in response to a subpoena. 678 F.2d at 117. That such an event was
“not ‘substantial’ for the purposes of” establishing venue, id., does not
undermine our conclusions in this case.
Walden also urges us to rely on Stafford v. Briggs, 444 U.S. 527 (1980),
which held that 28 U.S.C. § 1391(e), addressing venue in civil actions
against officers of the United States acting in their official capacity, could
not be read to allow suits against individual officers for money damages
to go forward in any federal district in the country because to do so
“would place federal officers . . . in a very different posture in personal
damages suits from that of all other persons.” Id. at 544. Walden’s argu-
ment that finding venue proper in Nevada in this case would similarly
result in a precedent that allowed any law enforcement officer working in
a transportation hub to be sued in any forum in the country is contradicted
by our earlier analysis regarding personal jurisdiction. Moreover, Fiore
and Gipson do not maintain, and we are not holding, that law enforcement
officers who work at transportation hubs are subject to nationwide venue
because of their status. For venue to lie, the terms of § 1391(b)(2) must
be met, as they are in this case.
17228 FIORE v. WALDEN
The facts concerning the origin and legitimacy of the $97,000
are also connected to Nevada: The $30,000 “bank” originated
in Nevada; Walden fabricated a fraudulent probable cause
affidavit to institute forfeiture proceedings against Fiore and
Gipson after they had returned to their residences in Nevada,
which affected them there; the documentation of the legiti-
macy of the money was sent from Nevada; and the funds
eventually were returned to Fiore and Gipson in Nevada, veri-
fying the lack of probable cause for forfeiture. The arrival of
the funds in Nevada was the event that caused Fiore and Gip-
son’s cause of action to mature, because their case was not
ripe until the government abandoned the forfeiture case
against them. See Albright v. Oliver, 510 U.S. 266, 280 (1994)
(Ginsburg, J., concurring). Taking all these events together, “a
substantial part of the events or omissions giving rise to the
claim occurred” in Nevada. 28 U.S.C. § 1391(b)(2). Venue is
proper in the District of Nevada.

III. CONCLUSION

[21] Walden seized all of the large amount of money Fiore
and Gipson were carrying with them as they travelled from
San Juan to Las Vegas via Atlanta. Although Fiore and Gip-
son sent Walden, from Nevada, documentation establishing
the legitimate sources of their funds, he persisted in seeking
forfeiture of their money. Walden’s intentional acts with
regard to the false probable cause affidavit and the consequent
delay in returning their money were expressly aimed at
Nevada and so satisfy the requirements for personal jurisdic-
tion. As to the search and seizure claim, we are remanding it
to the district court for the exercise of discretion with regard
to pendent personal jurisdiction. We also hold that venue is
proper in the District of Nevada.

REVERSED and REMANDED.
 FIORE v. WALDEN 17229
IKUTA, Circuit Judge, dissenting:

Gambling, it is said, is a “sure way of getting nothing from
something.” Here, by contrast, two professional gamblers get
something from nothing. Although their complaint contains
nothing that would provide a basis for asserting personal
jurisdiction over the federal agent who allegedly violated their
Fourth Amendment rights, the majority finds “something” in
the complaint: specifically, the “false affidavit/forfeiture pro-
ceeding aspect” of their case. Maj. op. at 17206 (emphasis
added). This “aspect,” the majority determines, provides a
basis for personal jurisdiction over the federal agent, even
though it is neither a constitutional tort nor a state law claim,
and even though plaintiffs never argued that it was. And the
gamblers’ lucky streak does not end there: the majority then
reverses the district court for failing to discern this elusive
“aspect” and to apply the entirely discretionary (and rarely
invoked) doctrine of “pendent personal jurisdiction.” In fact,
the district court correctly determined that the complaint did
not make a prima facie showing that the federal agent pur-
posefully directed his actions to the forum state. Because the
district court did not err in dismissing the complaint for want
of personal jurisdiction, I dissent.

I

The complaint in this case relates the following tale. Gina
Fiore and Keith Gipson are professional gamblers. On their
return from a gambling trip to San Juan, Puerto Rico, their
“traveling bank”1 and winnings had grown to over $97,000,
which they divided between their carry-on bags and their
pockets. At the San Juan airport, TSA agents searched Gip-
son’s bag and found about $50,000. The agents also discov-
ered about $30,000 in Fiore’s carry-on. Upon spotting such
1
A “traveling bank” is a significant amount of currency (here, tens of
thousands of dollars) carried by professional gamblers to cover traveling
expenses and give them a cushion if they suffer losses.
17230 FIORE v. WALDEN
large sums of cash, the TSA agent called a supervisor, who
contacted DEA agent Michael Cuento and two others.

Fiore told Cuento that she and Gipson had departed from
the El San Juan Casino, where they had been gambling. Fiore
and Gipson showed Cuento valid California driver’s licenses,
volunteered that they had Nevada and California residences,
and indicated that they were returning to their residences in
Las Vegas. Cuento escorted them onto the plane, but he told
them they should not be surprised if they were asked further
questions.

Fiore and Gipson landed in Atlanta and proceeded to their
gate for their connecting flight to Las Vegas. There, they met
agent Walden and another DEA agent who called for a drug-
sniffing dog. Fiore and Gipson were (falsely, they say)
informed that the dog had alerted. Agent Walden seized their
cash, but assured them that if they produced receipts demon-
strating that the funds were legitimate, their money would be
returned. With that assurance, plaintiffs boarded their plane to
Las Vegas. From the fact that their checked bags did not make
it to Las Vegas with the plane, the disheveled state of the
items inside, and the absence of a TSA sticker, plaintiffs sur-
mised that the DEA, with the participation of agent Walden,
conducted a search of their checked baggage.

Upon their return, Fiore and Gipson forwarded to Walden
tax returns, receipts from their trip, their travel itinerary, and
hotel records showing that they had gambled enough to have
rooms “comped.” They explained that Gipson had played
under a legal alias he commonly used in gaming. They also
sent a “win record” on El San Juan letterhead. Despite, as
plaintiffs allege, “necessarily recogniz[ing] that the seized
funds were not related to any illicit drug trade and were not
contraband or the proceeds of contraband,” Walden did not
return their funds. Not only that, but they allege “on informa-
tion and belief” that Walden, along with two unnamed defen-
dants, worked “to provide a false probable cause affidavit,
 FIORE v. WALDEN 17231
known by each to be false, for forwarding to the U.S. attorney
in Georgia to prosecute a forfeiture action,” an affidavit that
Fiore and Gipson contend omitted exculpatory information.

Even though Walden necessarily recognized the funds’
legitimacy, plaintiffs allege, he did not return the funds and
referred the matter for prosecution because he “personally dis-
approved” of the strategies plaintiffs used in gambling.2 The
AUSA to whom the matter was referred ultimately ordered
the funds returned some six months later for lack of probable
cause.

If plausible, this story might support Fiore and Gipson’s
claim that Walden seized their traveling bank in violation of
their Fourth Amendment rights. But there is one problem:
Fiore and Gipson filed the complaint against Walden in a dis-
trict court in Nevada, but failed to allege that Walden had any
contacts with that state for purposes of personal jurisdiction.
See Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)
(personal jurisdiction cannot constitutionally be asserted
unless defendant has “certain minimum contacts with [the
forum State] such that the maintenance of the suit does not
offend ‘traditional notions of fair play and substantial jus-
tice’ ” (quoting Milliken v. Meyer, 311 U.S. 457, 463
(1940))). Notably absent from plaintiffs’ complaint is any
allegation:

• that plaintiffs told Walden of their Las Vegas res-
idences;

• that Cuento ever spoke with Walden;

• that Cuento told Walden of plaintiffs’ connection
to Las Vegas;
2
Walden’s uncontested declaration, by contrast, states that he lacked
any authority over the seized cash once it had been transferred to a secure
location for processing and storage.
17232 FIORE v. WALDEN
• that plaintiffs showed Walden any Nevada-issued
identification (in fact, Agent Walden’s uncon-
tested declaration confirms that Fiore and Gipson
showed him California, not Nevada, licenses);

Indeed, the complaint does not expressly allege that even
after the seizure, Walden became aware that plaintiffs’ resi-
dence was in Nevada; it alleges only that plaintiffs forwarded
their tax returns, trip receipts, and the like to Walden “from
Las Vegas.” And Walden’s uncontested declaration makes
clear that he never contacted plaintiffs’ attorney “or anyone
else in Nevada,” and has never lived in, been to, owned prop-
erty or conducted any business in Nevada.

Given these facts, and applying the applicable precedent,
see Calder v. Jones, 465 U.S. 783 (1984); Schwarzenegger v.
Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004),
the district court concluded that Walden’s search of plaintiffs’
luggage and seizure of the money “was expressly aimed at
Georgia, not Nevada”: the search occurred in Georgia, as did
the questioning and the seizure. It therefore dismissed plain-
tiffs’ action for want of personal jurisdiction. As explained
below, the district court’s thorough and well-reasoned deci-
sion was clearly correct.

II

For a court to have specific personal jurisdiction over a
defendant in a tort suit, (1) the defendant must have purpose-
fully directed specific activities toward the state forum, (2) the
plaintiff’s claim must arise out of or relate to those specific
forum-related activities, and (3) the exercise of jurisdiction
must comport with “fair play and substantial justice.” Schwar-
zenegger, 374 F.3d at 802; Fed R. Civ. P. 4(k)(1)(A). In other
words, in order for the district court to have asserted personal
jurisdiction over Walden, it would have had to conclude that
Walden purposefully directed the actions that form the basis
of plaintiffs’ claim to Nevada.
 FIORE v. WALDEN 17233
In determining whether the defendant “purposefully direct-
ed” the activities which are the subject of plaintiff’s claim to
the forum state, we consider whether the defendant “(1) com-
mitted 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.” Dole Food Co., Inc. v. Watts,
303 F.3d 1104, 1111 (9th Cir. 2002) (citing Calder v. Jones,
465 U.S. at 788-89). As a matter of simple logic, a defendant
cannot “expressly aim” an intentional act at a victim’s home
state if the defendant committing the action does not even
know that the victim has any connection with that state. See
Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d
1082, 1087 (9th Cir. 2000) (“From the available cases, we
deduce that the [‘express aiming’] requirement is satisfied
when the defendant is alleged to have engaged in wrongful
conduct targeted at a plaintiff whom the defendant knows to
be a resident of the forum state.”); cf. Ibrahim v. Dep’t of
Homeland Sec., 538 F.3d 1250, 1258 (9th Cir. 2008) (approv-
ing the exercise of personal jurisdiction in California where
defendant, a Virginia resident with no other ties to California,
ordered local police to prevent plaintiff from flying out of the
San Francisco airport and to detain her for further question-
ing).

This framework creates a problem for Fiore and Gipson:
when Walden seized the cash, he knew only that the plaintiffs
had California driver’s licenses and were headed to Las
Vegas. The complaint does not even hint that Walden learned
of plaintiffs’ ties to Las Vegas until after the seizure was
complete. Because there is no allegation that Walden purpose-
fully directed the actions that form the basis of plaintiffs’
claim to Nevada, a Nevada district court necessarily lacks per-
sonal jurisdiction over Walden. That should be the end of the
matter.3
3
Indeed, the majority concedes that the complaint does not allege that
Walden knew of plaintiffs’ Nevada residency when he seized the $97,000.
See maj. op. at 17211-12.
17234 FIORE v. WALDEN
III

But it is not, because the majority shows more creativity
construing the complaint than Fiore and Gipson did drafting
it. That is, the plaintiffs allege one simple claim: a violation
of their Fourth Amendment rights to be free of unreasonable
searches and seizures. The gravamen of Fiore and Gipson’s
complaint is that “[t]he search and withholding of [their]
checked baggage . . . was without probable cause, unreason-
able, and also constituted an illegal search and seizure by the
defendants.” Or, as they later put it, “Defendants’ actions con-
stitute a violation of U.S. Const. Amd. IV in the unreasonable
seizure and unreasonable continued seizure of the plaintiff’s
funds.”

The majority, however, purports to flush out a second claim
roosting amidst the lines of the complaint. According to the
majority, there is a “false affidavit/forfeiture proceeding
aspect of [the] case,” maj. op. at 17206, which gives rise to
“an allegation that Walden attempted to defraud Fiore and
Gipson of the seized funds,” maj. op. at 17215 (emphasis
added). Because, the majority explains, at the time Walden
prepared the false probable cause affidavit, he knew plaintiffs
had significant connections with Nevada, the district court
erred in not asserting personal jurisdiction over Walden based
on this false affidavit “aspect” of the case. Maj. op. at
17215-16.

The majority’s analysis completely misses the mark for a
crucial reason: the complaint did not include a fraud claim.
We analyze personal jurisdiction on a claim-by-claim basis.
See, e.g., CollegeSource, Inc. v. AcademyOne, Inc., No. 09-
56528, ___ F.3d ___, 2011 WL 3437040, at *7 (9th Cir. Aug.
8, 2011) (focusing the jurisdictional inquiry on plaintiff’s
state law misappropriation claim); see also Remick v. Man-
fredy, 238 F.3d 248, 255 (3d Cir. 2001) (stating that a district
court’s specific personal jurisdiction “is claim specific,”
meaning that personal jurisdiction over one defendant as to a
 FIORE v. WALDEN 17235
particular claim does not necessarily give the court personal
jurisdiction over that same defendant as to the plaintiff’s other
claims). The only claim in this complaint is a Fourth Amend-
ment claim for seizure of property. There is no claim that
Walden’s preparation of the allegedly fraudulent affidavit vio-
lated plaintiffs’ Fourth Amendment rights,4 and it is doubtful
that such a constitutional tort even exists.

Nor did the plaintiffs bring a state fraud claim. In fact, the
plaintiffs do not appear to bring any state claim at all: they
claimed federal jurisdiction based on the general federal ques-
tion statute (28 U.S.C. § 1331) and 28 U.S.C. § 1356,5 and do
not invoke diversity jurisdiction. For that matter, the com-
plaint does not allege over $75,000 in controversy as required
for diversity jurisdiction, see 28 U.S.C. § 1332(a), or facts
from which it is “facially apparent” that the “jurisdictional
amount is in controversy,” Singer v. State Farm Mut. Auto.
Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997) (internal quotation
omitted). Nor does the complaint invoke supplemental juris-
diction.

Indeed, it is doubtful that the elements of a state law fraud
cause of action are even lurking in the complaint. Under
Nevada law, the elements of a fraud cause of action are (1) a
false representation by defendant; (2) defendant’s knowledge
or belief that the representation was false; (3) defendant’s
intent that plaintiff act or refrain from acting in reliance upon
the misrepresentation; (4) plaintiff’s justifiable reliance upon
4
One combs through the complaint in vain to find any argument that the
creation of a false probable cause affidavit is a separate constitutional tort.
Rather, the plaintiffs point to the false affidavit to support their Fourth
Amendment claim, stating that “[t]he law is clearly established that falsi-
fying evidence on an affidavit in support of a seizure or a search renders
the seizure or search unconstitutional.”
5
28 U.S.C. § 1356 provides: “The district courts shall have original
jurisdiction, exclusive of the courts of the States, of any seizure under any
law of the United States on land or upon waters not within admiralty and
maritime jurisdiction . . . .”
17236 FIORE v. WALDEN
it; and (5) damage to plaintiff as a result. Rivera v. Philip
Morris, Inc., 395 F.3d 1142, 1155 (9th Cir. 2005). The com-
plaint does not, however, allege that Walden intended plain-
tiffs to act or refrain from acting in reliance on the false
affidavit, or that plaintiffs justifiably relied on the affidavit.

In any event, an unarticulated state law claim could not
give the majority a basis for reversing the district court. When
the district court, which had original jurisdiction only over the
Fourth Amendment claim, dismissed that claim for lack of
personal jurisdiction, it was well within its discretion to
decline to exercise supplemental jurisdiction over any implic-
itly lurking state law claim. See 28 U.S.C. § 1367(c)(3); Bry-
ant v. Adventist Health Sys./W., 289 F.3d 1162, 1165 (9th Cir.
2002) (district court’s decision to decline supplemental juris-
diction reviewed for abuse of discretion).

Because plaintiffs based their claim on Walden’s seizure of
the cash (which not even the majority contends was purpose-
fully directed toward Nevada) and did not, as the majority
suggests, allege a fraud claim, it is impossible to say that
plaintiffs’ claim arose out of or related to Walden’s conduct
in preparing the allegedly false probable cause affidavit. See
Schwarzenegger, 374 F.3d at 802.

IV

The majority’s reasoning threatens a substantial expansion
of the scope of personal jurisdiction. If a district court com-
mits reversible error by failing to give due weight to the “false
affidavit/forfeiture proceeding aspect” of a complaint, maj.
op. at 17206 (emphasis added), even where the parties never
asked the court to do so, district courts must scour complaints
to find some allegation of wrongful action that might have
occurred after the defendant became aware of the plaintiff’s
residence. Such a ruling essentially requires courts to assert
personal jurisdiction over any defendant who learns about the
home state of the plaintiff at any time after the defendant
 FIORE v. WALDEN 17237
engaged in the conduct that formed the basis of plaintiff’s
claim. To ensure this result, plaintiffs need only assert that the
defendant knew their home state and subsequently engaged in
some wrongful act.

Obviously, this loosens the due process protection afforded
defendants beyond anything allowed by the Supreme Court,
which recently reemphasized that personal jurisdiction is not
an outmoded legal fiction, but remains a vital part of due pro-
cess and fair play. See J. McIntyre Machinery, Ltd. v.
Nicastro, 131 S. Ct. 2780 (2011) (striking down the New Jer-
sey Supreme Court’s broad ruling that a state court had per-
sonal jurisdiction over a company despite the defendant’s lack
of minimum contacts with the state.) As the plurality noted,
“[f]reeform notions of fundamental fairness divorced from
traditional practice” do not give a state lawful judicial author-
ity over a defendant, id. at 2787; see also id. at 2791 (Breyer,
J., concurring in the judgment) (rejecting the state court’s
adoption of “a broad understanding of the scope of personal
jurisdiction based on its view that ‘[t]he increasingly fast-
paced globalization of the world economy has removed
national borders as barriers to trade’ ” (alteration in original)
(quoting 987 A.2d 575, 577 (N.J. 2010)).

The majority’s decision today unwisely broadens the scope
of personal jurisdiction, erroneously rejects the district court’s
adherence to “traditional practice” in favor of its own
“[f]reeform notions” of fairness, id. at 2787 (plurality opin-
ion), and holds that Walden is subject to the jurisdiction of a
Nevada court despite his having no contacts whatsoever to
that state in connection with plaintiffs’ Fourth Amendment
claim. Because “those who live or operate primarily outside
a State have a due process right not to be subjected to judg-
ment in its courts as a general matter,” id., I dissent.