Bils v. Bils

FELDMAN, J.,

dissenting.

¶ 14 Willy Bils claims Arizona courts can properly exercise personal jurisdiction over the out-of-state defendants in this intentional tort action under the “effects” doctrine of Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). The majority states that “Calder does not support Willy Bils’ expansive view” of jurisdiction. Opinion at ¶ 9. Although Calder may not support Willy’s contention that he need only “allege! ] the ‘effects’ of Petitioners’ intentional acts, and provide! ] extensive supportive evidence for such through sworn affidavits,” given the allegations of Willy’s complaint, Calder supports jurisdiction in this case. Willy’s complaint for damages alleges several intentional torts; like Calder, the case was dismissed on a Rule 12.b.2 motion.1 Thus, all allegations of the complaint must be deemed true. Lu-chanski v. Congrove, 193 Ariz. 176, 179, 971 P.2d 636, 639 (App.1998); see also Citizens’ Comm. for Recall of Jack Williams v. Marston, 109 Ariz. 188, 192, 507 P.2d 113, 117 (1973).

¶ 15 In Calder, the United States Supreme Court held that the minimum contacts requirement in an intentional tort action is satisfied when the nonresident tortfeasor expressly aims its tortious conduct at the forum and the plaintiff suffers the brunt of the harm in the forum. 465 U.S. at 788-89, 104 S.Ct. at 1486-87. In such circumstances, the forum can be said to be the focal point of both the tortious activity and the harm suffered. Id. This jurisdictional analysis is known as the “effects” test and has been interpreted to require that, to establish jurisdiction, a plaintiff must demonstrate the following:

(1) The defendant committed an intentional tort; (2) The plaintiff felt the brunt of the harm in the forum such that the forum can be said to be the focal point of the harm suffered by the plaintiff as a result of that tort; (3) The defendant expressly aimed his tortious conduct at the forum such that the forum can be said to be the focal point of the tortious activity.

IMO Industries, Inc. v. Kiekert AG, 155 F.3d 254, 265-66 (3rd Cir.1998). We reached a similar result in Arizona even before Calder. See Pegler v. Sullivan, 6 Ariz.App. 338, 342, 432 P.2d 593, 597 (1967).

¶ 16 To meet his burden of proof under Rule 12.b.2, Willy need only make out a prima facie case for jurisdiction. A. Uberti & C. v. Leonardo, 181 Ariz. 565, 569, 892 P.2d 1354, 1358 (1995); see also MacPherson v. Taglione, 158 Ariz. 309, 312, 762 P.2d 596, 599 (App.1988); 2 James Wm. Moore et al., Moore’s Federal Practice § 12.31[5] (3d ed.1999). Accepting, as we must at this stage of the case, that the facts alleged by Willy are true, I conclude that he has successfully made a prima facie ease. Rollin v. William V. Frankel & Co., 196 Ariz. 350, 352, 996 P.2d 1254, 1256 (App.2000) (citing A. Uberti & C., 181 Ariz. at 567, 892 P.2d at 1356). Willy alleges that, by filing the in terrorem action, defendants committed the *49intentional torts of abuse of process, malicious prosecution, and intentional infliction of emotional distress. He claims to have suffered harm from these various intentionally tortious acts while living in the forum state of Arizona. He further asserts that defendants knew he was an Arizona resident and knowingly filed unsupported legal claims with the intent of causing him harm in Arizona. It is that harm itself, and not just the required mailing of the legal pleadings giving notice of the action, claims Willy, that was expressly aimed at Arizona. Of course, without some type of contact to Arizona, a lawsuit filed in a different state does not give Arizona jurisdiction to entertain a second action spawned from that out-of-state litigation. But because the harm and the mailings that accomplished it were purposefully aimed at Arizona, argues Willy, they serve as legitimate contacts supporting jurisdiction.

¶ 17 Based on Willy’s allegations, I cannot agree with the majority’s statement that “[tjhese defendants did not aim anything at Arizona” and “there is no way that the evidence would support a finding that these defendants expressly aimed anything at plaintiff in Arizona knowing that it would harm him.” Opinion at ¶ 11. The affidavits filed with defendants’ motion to dismiss merely establish that defendants were never physically present in Arizona. No evidence has been received to rebut Willy’s allegations, and we have nothing but the facts alleged by Willy, which at this stage we must take as true, that defendants did aim something at Arizona — they knowingly aimed the harm from their tortious conduct at him in Arizona. Defendants knew and intended that the mailings giving notice of the unsupported filings, be they required under California probate procedural rules or not, would harm Willy here. It should be pointed out that, although defendants challenged Arizona’s jurisdictional basis by claiming a lack of minimum contacts, they did not refute Willy’s claims that the filings were intended to harm Willy in Arizona. Indeed, when defendants address Willy’s claim, they state “if abuse of process occurred, this abuse occurred in California and not in Arizona.” Opposition to Defendants’ Reply to Motion to Dismiss, filed February 27,1997, at 8.

¶ 18 Defendants are correct when they say the abuse occurred in California. But the facts, as we must take them, are that the effects of the abuse were intended to and did cause damage in Arizona. If I shoot a rocket from California, knowing it will land and cause damage in Arizona, no one would argue that Arizona’s courts lack jurisdiction when the rocket successfully completes its intended mission. Calder, a defamation case, makes intentionally-published words the equivalent of that hypothetical rocket. 465 U.S. at 789-90,104 S.Ct. at 1487. Within the context of the specific facts of that case, the Calder Court unanimously recognized that:

[Pjetitioners are not charged with mere untargeted negligence. Rather, their intentional, allegedly tortious, actions were expressly aimed at California. Petitioner South wrote and petitioner Calder edited an article they knew would have a potentially devastating impact upon respondent. And they knew that the brunt of that injury would be felt by respondent in the State in which she lives and works and in which the National Enquirer has its largest circulation. Under the circumstances, petitioners must ‘reasonably anticipate being haled into court there’ to answer for the truth of the statements made in their article. An individual injured in California need not go to Florida to seek redress from persons who, though remaining in Florida, knowingly cause injury in California.

Id. (citations omitted, emphasis added).

¶ 19 Willy must have read Calder because his complaint is explicit in alleging the jurisdictional requirements emphasized in the quote above. Here, as in Calder, defendants “are not charged with mere untargeted negligence” but with intentional acts aiméd at harming Willy in Arizona. In Calder, the defamatory words eventually reached California; in the present case, the abusive words and papers eventually were served on Willy in Arizona. The majority states that “under no set of facts could it be said that Henry Bils and Babin could reasonably have anticipated being haled into court in Arizona.” Opinion at ¶ 11. But Calder tells us a tortfeasor who knowingly aims false words *50at a nonresident -with the intent to cause harm in the latter’s place of residence should reasonably anticipate being called into court in the foreign state to answer for his actions. 465 U.S. at 790,104 S.Ct. at 1487.

¶ 20 Our court of appeals reached a similar result in Bils v. Nixon, Hargrave, Devans & Doyle, in which it found that the jurisdiction of Arizona courts existed over New York lawyers whose misuse in New York of an Arizona resident’s credit information invaded the privacy of that resident. 179 Ariz. 523, 526, 880 P.2d 743, 746 (App.1994). Although Bils v. Nixon et al. supports Willy’s interpretation of Calder, the majority attempts to sidestep the case by distinguishing between a telephone call from New York that “arguably” invaded the plaintiffs right to privacy and the mailing of pleadings from a legal action filed for the sole purpose of causing emotional distress to Willy in Arizona. Opinion at ¶ 12. I see no difference. How can receipt of a telephone call be sufficient to support jurisdiction while service of legal pleadings cannot? The jurisdictional holding in Bils v. Nixon et al. was based on the court’s perception that an action for invasion of the right to privacy is injury to the plaintiffs sensibilities and a finding that because plaintiffs “residence is in Arizona ... so are his ‘sensibilities.’ ” Id. at 526, 880 P.2d at 746. The court went on to promulgate the rule that governed Calder and that also should govern this case:

Accordingly, the only place an “event” can occur constituting a violation of appellant’s right to privacy is Arizona. Because the alleged conduct of appellees was intentionally directed at an Arizona resident and was calculated to cause injury to him here, their contacts were sufficient to confer personal jurisdiction.

Id.

¶ 21 Nor can the requirement of the California probate code that defendants mail a copy of their pleadings to other devisees and their attorneys affect the present analysis. Jurisdiction is conferred because the mailings were the means by which the harm was accomplished in Arizona. Defendants knowingly filed improper actions intending that their acts cause damage to Willy, they had certain knowledge that the legal papers would be served on Willy in Arizona, and they knew that Willy’s emotional distress would be felt in Arizona. Like Calder’s defamatory words eventually reaching California, the mailing, even though required, serves as the minimum contact to support jurisdiction over intentional torts that caused and were intended to cause harm in Arizona. Forcing a tortfeasor to defend his actions in such a situation does not, in my opinion, “offend traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945).

¶22 Intuitively, one feels this may be a frivolous case on the merits. But this court must decide the cases brought to it by analysis, not intuition. At this stage, whether Willy’s intentional tort claims have any merit is not for us to decide. Nor is it for the trial court to decide within the context of a Rule 12.b.2 motion to dismiss for lack of personal jurisdiction. Because the facts Willy has alleged provide sufficient grounds to establish jurisdiction as a prima facie matter, I agree with our court of appeals that the judgment of dismissal should be reversed and the case remanded for further proceedings. Therefore, I must dissent.

. Following California procedure, the Calder trial judge quashed service of process. Calder, 465 U.S. at 784-85, 104 S.Ct. at 1484.