Fiore v. Walden

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 jurisdietion over the federal agent who allegedly violated their Fourth Amendment rights, the majority finds “something” in the complaint: specifically, the “false affidavit/forfeiture proceeding aspect” of their case. Maj. op. at 576 (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 purposefully 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 Gipson’s bag and found about $50,000. The agents also discovered about $30,000 in Fiore’s carry-on. Upon spotting such large sums of cash, the TSA agent called a supervisor, *591who 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 demonstrating 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 surmised 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 recognizing] 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 information and belief’ that Walden, along with two unnamed defendants, worked “to provide a false probable cause affidavit, 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 disapproved” 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 district 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, 66 S.Ct. 154, 90 L.Ed. 95 (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 justice’ ” (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940))). Notably absent from plaintiffs’ complaint is any allegation:

*592• that plaintiffs told Walden of their Las Vegas residences;
• that Cuento ever spoke with Walden;
• that Cuento told Walden of plaintiffs’ connection to Las Vegas;
• that plaintiffs showed Walden any Nevada-issued identification (in fact, Agent Walden’s uncontested 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’ residence 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 property or conducted any business in Nevada.

Given these facts, and applying the applicable precedent, see Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (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 plaintiffs’ action for want of personal jurisdiction. As explained below, the district court’s thorough and well-reasoned decision was clearly correct.

II

For a court to have specific personal jurisdiction over a defendant in a tort suit, (1) the defendant must have purposefully directed specific activities toward the state forum, (2) the plaintiffs 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.” Schwarzenegger, 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.

In determining whether the defendant “purposefully directed” the activities which are the subject of plaintiffs claim to the forum state, we consider whether the defendant “(1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state.” Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1111 (9th Cir.2002) (citing Calder v. Jones, 465 U.S. at 788-89, 104 S.Ct. 1482). 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) (approving 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 questioning).

This framework creates a problem for Fiore and Gipson: when Walden seized *593the 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 purposefully directed the actions that form the basis of plaintiffs’ claim to Nevada, a Nevada district court necessarily lacks personal jurisdiction over Walden. That should be the end of the matter.3

Ill

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, unreasonable, and also constituted an illegal search and seizure by the defendants.” Or, as they later put it, “Defendants’ actions constitute a violation of U.S. Const. Amd. IV in the unreasonable seizure and unreasonable continued seizure of the plaintiffs 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 575-76, which gives rise to “an allegation that Walden attempted to defraud Fiore and Gipson of the seized funds,” maj. op. at 580-81 (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 580-81.

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., College-Source, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1076-77 (9th Cir.2011) (focusing the jurisdictional inquiry on plaintiffs state law misappropriation claim); see also Remick v. Manfredy, 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 particular claim does not necessarily give the court personal jurisdiction over that same defendant as to the plaintiffs other claims). The only claim in this complaint is a Fourth Amendment claim for seizure of property. There is no claim that Walden’s preparation of the allegedly fraudulent affidavit violated 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 question statute (28 U.S.C. *594§ 1831) and 28 U.S.C. § 1356,5 and do not invoke diversity jurisdiction. For that matter, the complaint 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 jurisdiction.

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) plaintiffs justifiable reliance upon it; and (5) damage to plaintiff as a result. Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1155 (9th Cir.2005). The complaint does not, however, allege that Walden intended plaintiffs 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 implicitly lurking state law claim. See 28 U.S.C. § 1367(c)(3); Bryant v. Adventist Health Sys./W., 289 F.3d 1162, 1165 (9th Cir.2002) (district court’s decision to decline supplemental jurisdiction reviewed for abuse of discretion).

Because plaintiffs based their claim on Walden’s seizure of the cash (which not even the majority contends was purposefully 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 commits reversible error by failing to give due weight to the “false affidaviVforfeiture proceeding aspect ” of a complaint, maj. op. at 576 (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 plaintiffs 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 engaged in the conduct that formed the basis of plaintiffs 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*595cess and fair play. See J. McIntyre Machinery, Ltd. v. Nicastro, — U.S. -, 131 S.Ct. 2780, 180 L.Ed.2d 765 (2011) (striking down the New Jersey Supreme Court’s broad ruling that a state court had personal jurisdiction over a company despite the defendant’s lack of minimum contacts with the state.) As the plurality noted, “[fjreeform notions of fundamental fairness divorced from traditional practice” do not give a state lawful judicial authority 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 201 N.J. 48, 987 A.2d 575, 577 (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 opinion), 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 judgment in its courts as a general matter,” id., I dissent.

Postscript

The majority’s postscript to the opinion amplifies the error of the opinion in two ways. First, it expands the meaning of a “claim” for purposes of personal jurisdiction. Second, it completes the opinion’s evisceration of the test for purposeful direction. Together, these changes signal that the traditional due process limitations on a court’s authority to assert personal jurisdiction over an out-of-state defendant no longer pose any meaningful constraint on courts in the Ninth Circuit.

A

In its most recent changes, the majority continues its search for a theory to save the plaintiffs’ complaint. The original opinion’s personal jurisdiction analysis relied entirely on the false affidavit “aspect” of plaintiffs’ complaint. Maj. op. at 575-76, 576-77, 581. According to the majority, this aspect “amounted to an attempt to defraud” Fiore and Gipson. Maj. op. at 586. Under the pressure of an en banc call, the majority has promoted this false affidavit and fraud “aspect” of the complaint to a full-blown cause of action for the “continued seizure” of plaintiffs’ funds “in violation of the Fourth Amendment.” Maj. op. at 588. Because this is “arguably]” a cause of action, the majority’s amended opinion now asserts that personal jurisdiction may be derived from this newly identified claim. Maj. op. at 576 n. 17.

This is a dramatic and unjustified shift. Until the majority’s postscript, no one involved in the litigation — not the plaintiffs, the defendant, or any court — had read the complaint as containing two separate Fourth Amendment claims. Neither plaintiffs’ briefs nor their arguments before this court or the district court raised any such theory. Rather, plaintiffs argued that the court had personal jurisdiction over Walden based on the single claim they actually pled: Walden’s initial seizure of funds at the airport. Nothing was mentioned about a “continued seizure.” And with good reason: no court has ever given an indication that a Bivens claim for a “continued seizure” even exists.6 Natural*596ly, Walden never challenged an argument not made.

But now, after the appeal, its published opinion, and the en banc proceedings, the majority has changed the rules of the game. Under the majority’s new theory, a court can rest its personal jurisdiction holding on any factual allegation in a complaint that a court deems to “arguably” create a cause of action — whether actually argued by the plaintiff or not. A “claim” can be “arguable” even though no court has ever recognized it, and it can be discovered by the court sua sponte at any stage in the litigation, including during en banc proceedings. This unbounded approach will impose enormous costs on litigants and state courts, both of whom must now bear the burden of scouring complaints in order to divine the personal jurisdiction implications of each and every factual allegation.

B

In addition to expanding what it means to be a “claim” for purposes of personal jurisdiction, the majority’s postscript comes close to erasing whatever is left of the Ninth Circuit’s test for determining whether that “claim” supports specific personal jurisdiction. See J. McKeown dissent from denial at 569-70; J. O’Scannlain dissent from denial at 564-65.

The Supreme Court has “consistently held” that a state court cannot assert personal jurisdiction over a defendant merely because it is foreseeable that the defendant’s actions could cause an injury in that state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Rather, “it is the defendant’s actions, not his expectations, that empower a State’s courts to subject him to judgment.” J. McIntyre Machinery, 131 S.Ct. at 2789. In order to give rise to personal jurisdiction, these actions must be “expressly aimed” at the forum state. Calder, 465 U.S. at 789, 104 S.Ct. 1482.

Our cases have eroded this requirement. For example, in CE Distribution, LLC v. New Sensor Corp., we held that a defendant’s actions in New Jersey were expressly aimed at Arizona because “it is reasonable to infer that [defendant] had every reason to know that the effect of the [New Jersey transactions] would resonate in Arizona.” 380 F.3d 1107, 1111 (9th Cir.2004). We went even further in Bray-ton Purcell LLP v. Recordon & Recordon, where we held that the defendant law firm “individually targeted” plaintiffs law firm in one forum by publishing plaintiffs copyrighted online marketing material in a different forum. 606 F.3d 1124, 1129-30 (9th Cir.2010). But, as Judge Reinhardt pointed out in dissent, the allegedly infringing material was aimed solely at prospective clients in the defendant’s own district, where its lawyers “practiced exclusively.” Id. at 1132 (Reinhardt, J., dissenting). Despite the fact that such behavior “is quite the opposite of ‘directly targeting the *597forum,’ ” id., we held that it was sufficient “express aiming” to support personal jurisdiction.

This case deals the coup de grace to any semblance of compliance with Supreme Court precedent. See J. O’Scannlain dissent from denial at 564-65. Under the majority’s logic, a court can rely on any allegation that the defendant committed a wrongful act at a time when the defendant should have known that plaintiffs had “strong connections” with a state. Maj. op. at 589-90. The complaint need not allege a wrongful act that is legally cognizable, maj. op. at 576 n. 17, or even that defendant actually knew of plaintiffs’ connections to the forum state at the time the defendant committed the allegedly wrongful act, maj. op. at 578. Rather, all that is needed is the allegation that some intentional act by the defendant has a foreseeable effect on a plaintiff in another state. In other words, as Judge McKeown correctly observes in her dissent from the denial of rehearing en banc, we have adopted the exact foreseeability framework that the Supreme Court has consistently rejected. See J. McKeown dissent from denial at 569-70.

This impermissible expansion of personal jurisdiction has substantial consequences. For one thing, federal officials working in a transportation hub who are sued by disgruntled travelers can now be forced to litigate in any traveler’s home state. A court has personal jurisdiction over such an official so long as (1) it can infer that the official had reason to know the traveler’s residence at some point during the litigation, and (2) it can discern some “arguable” cause of action in the traveler’s complaint. Under such a “test,” a TSA official in Minneapolis who stopped a traveler on a no-fly list can be forced to litigate a claimed equal protection violation in the traveler’s home town, whether in Pocatello or Anchorage.

In short, there are no effective limits to the majority’s reasoning: all the airport officials who interacted with Fiore and Gipson in Atlanta have potentially subjected themselves to the judicial power of Nevada. This essentially reduces the showing of personal jurisdiction to a pleading exercise and, by doing so, grants state courts in the Ninth Circuit an unconstrained power to “bind strangers to the State.” J. McIntyre Machinery, 131 S.Ct. at 2787. This not only flouts common sense, but also ignores the Supreme Court’s recent recognition that personal jurisdiction continues to play a vital role in defending basic fairness and due process. See id. at 2786-87.

Judges O’Scannlain, McKeown, and I are not the first to decry this lamentable development in our case law. See, e.g., Brayton Purcell, 606 F.3d at 1131-32 (Reinhardt, J., dissenting from the majority’s application of the express aiming requirement); Yahoo! Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, 433 F.3d 1199, 1224-25 (9th Cir.2006) (en banc) (Ferguson, J., dissenting from the same, joined by O’Scannlain, J., Tashima, J.). But there is even more to lament today, as the majority has done significant further damage to the “traditional notions of fair play and substantial justice” guarded by the long-established rules of personal jurisdiction. Int'l Shoe, 326 U.S. at 316, 66 S.Ct. 154.

. 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.

. 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.

. 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 579.

. 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 falsifying evidence on an affidavit in support of a seizure or a search renders the seizure or search unconstitutional.”

. 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. ..."

. Three circuits have squarely considered and rejected the theory that "continued seizures” *59610\*violate the Fourth Amendment. See Gonzalez v. Vill. of W. Milwaukee, 671 F.3d 649, 660 (7th Cir.2012) ("[C]ontinued retention of unlawfully seized property is not a separate Fourth Amendment wrong.”); Lee v. City of Chicago, 330 F.3d 456, 461-66 (7th Cir.2003); Fox v. Van Oosterum, 176 F.3d 342, 351-52 (6th Cir.1999); United States v. Jakobetz, 955 F.2d 786, 802 (2d Cir.1992). Moreover, as the Supreme Court has recently reiterated, courts should be extremely cautious about extending Bivens to new constitutional claims. See Minneci v. Pollard, — U.S.-, 132 S.Ct. 617, 620, 181 L.Ed.2d 606 (2012) (refusing to imply a Bivens action for Eight Amendment violations by employees of a privately operated federal prison); id. at 622, 91 S.Ct. 1999 (noting that the Court has not implied a new Bivens action since 1980).