NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 6 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD WILLIAM MORRIS, on behalf No. 16-16064
of Oregon Cascade Corporation and
CLAUDINE MORRIS, Assignee on behalf D.C. No.
of Oregon Cascade Corporation, 2:15-cv-00226-JAD-GWF
Plaintiffs-Appellants,
MEMORANDUM*
v.
FRANCOIS ROBERT HARLEY, AKA
Francois Robert Haussauer; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Submitted November 13, 2017**
San Francisco, California
Before: GOULD and MURGUIA, Circuit Judges, and GRITZNER,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa, sitting by designation.
The issue in this case is whether the district court correctly ordered dismissal
for lack of personal jurisdiction over Defendants Francois Harley and his company,
Cambium E.I.R.L. Richard and Claudine Morris and Harley signed a lease
agreement in the Dominican Republic on August 29, 2012. This agreement gave
the Morrises a 99-year lease for the lot “Mango 12” in Cambium, a subdivision
located entirely within the Dominican Republic. On May 31, 2013, while Harley
was in Las Vegas, Nevada, the Morrises and Harley amended their 2012 lease
agreement, substituting the Cambium lot “Cana 17” for Mango 12.
In 2015, the Morrises brought claims against Defendants for violations of
the Interstate Land Sales Full Disclosure Act (ILSA), as well as state tort and
contract law. The district court granted Defendants’ motion to dismiss, finding
that Defendants were not subject to personal jurisdiction in Nevada or, by way of
the federal long-arm statute, in the United States as a whole. On appeal, the
Morrises argue that Defendants waived their personal jurisdiction defenses; that
they are subject to personal jurisdiction in both Nevada and under the federal long-
arm statute; and that personal jurisdiction is automatic under the ILSA.
Defendants raised the defense of lack of personal jurisdiction in their first
responsive pleading and moved to dismiss all claims on that basis. Defendants did
not waive their personal jurisdiction defenses. See Fed. R. Civ. P. 12(h).
Because the Morrises brought suit in the District of Nevada, this court
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assesses whether the exercise of personal jurisdiction over Defendants in Nevada is
proper. See Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014). The Morrises allege
that Harley promoted and solicited purchases on behalf of Cambium at a two-day
convention in Las Vegas, Nevada. Such a discrete act does not render Defendants
essentially at home in Nevada. See CollegeSource, Inc. v. AcademyOne, Inc., 653
F.3d 1066, 1074 (9th Cir. 2011). Nevada lacks general personal jurisdiction over
Defendants.
The Morrises’ lease agreement was signed in the Dominican Republic and
predated Harley’s visit to Nevada. Though the parties amended the agreement at
the Las Vegas convention, this amendment only substituted one plot of land for
another; the remaining terms from the 2012 lease were unaffected. The Morrises
failed to show their ILSA claim would not have arisen but for Defendants’ Nevada
contacts and thus failed to establish specific jurisdiction. See Menken v. Emm, 503
F.3d 1050, 1058 (9th Cir. 2007).
Moreover, adjudicating this dispute in Nevada would not be reasonable.
Defendants did not purposefully direct their conduct toward Nevada beyond
Harley attending the Las Vegas convention. Cambium is incorporated in, and has
its principal place of business in, the Dominican Republic. The entire Cambium
subdivision is located in the Dominican Republic. The 2012 lease agreement was
signed in the Dominican Republic and notarized by a Dominican notary public.
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The agreement contains a dispute-resolution clause requiring mandatory mediation
and arbitration in the Dominican Republic. An alternative forum (arbitration in the
Dominican Republic) exists. See CollegeSource, 653 F.3d at 1079 (setting forth
factors relevant to reasonable exercise of specific jurisdiction). Nevada lacks
specific personal jurisdiction over Defendants.
Because the Morrises assert a federal law claim under the ILSA and
Defendants are not subject to personal jurisdiction in any individual state, the court
can assess Defendants’ contacts under the federal long-arm statute. See Fed. R.
Civ. P. 4(k)(2); Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1159 (9th Cir. 2006).
The same due process analysis for specific and general personal jurisdiction
applies, except that the relevant forum is the United States as a whole. Pebble
Beach, 453 F.3d at 1159.
The Morrises allege that Harley visited the United States in 2013 and
promoted Cambium lots in California, Florida, Nevada, and Pennsylvania. The
Morrises have presented evidence suggesting that Harley advertised Cambium in
brochures and publications distributed in the United States. A few discrete acts
promoting Cambium, however, do not render Defendants essentially at home in the
United States. See CollegeSource, 653 F.3d at 1074. The United States lacks
general personal jurisdiction over Defendants.
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The Morrises have failed to show their ILSA claim would not have arisen
but for these U.S. activities. See Menken, 503 F.3d at 1058. The August 29, 2012
lease agreement predated Harley’s 2013 U.S. marketing tour. The May 31, 2013
amendment to the 2012 lease agreement only changed the Morrises’ lot without
altering any other terms. And, as with the analysis of specific contacts with
Nevada, the reasonableness factors weigh against adjudication in the United States.
See CollegeSource, 653 F.3d at 1079. The United States lacks specific personal
jurisdiction over Defendants.
The Morrises’ final argument, that jurisdiction is automatic under the ILSA,
is contrary to longstanding precedent holding that the exercise of judicial authority
over a defendant not located in the forum must satisfy constitutional due process
standards. See Int’l Shoe, 326 U.S. at 319 (holding due process “does not
contemplate that a state may make binding a judgment in personam against an
individual or corporate defendant with which the state has no contacts, ties, or
relations”). The district court committed no error in concluding it lacked personal
jurisdiction over Defendants.
AFFIRMED.
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Richard Morris v. Francois Harley
Combined Opinion