Carolyn Lazar v. Mark Kroncke

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CAROLYN LAZAR, a citizen of No. 15-15078
Arizona,
Plaintiff-Counter-Defendant-Cross- D.C. No.
Defendant-Appellant, 2:14-cv-01511-
DLR
v.

MARK G. KRONCKE, in his capacity OPINION
as Administrator of the Estate of
George Thomas Kroncke, a citizen
of California,
Defendant-Counter-Defendant-
Appellee,

and

CHARLES SCHWAB & CO., INC., a
California corporation,
Defendant-Counter-Claimant-Cross-
Claimant.

Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding

Argued and Submitted February 14, 2017
San Francisco, California
2 LAZAR V. KRONCKE

Filed July 14, 2017

Before: Eugene E. Siler, Jr.,* A. Wallace Tashima,
and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Siler

SUMMARY **

Revocation-on-Divorce Statute / Contracts Clause

The panel affirmed the district court’s dismissal of a
constitutional challenge to the application of Arizona’s
revocation-on-divorce statute in the allocation of the
proceeds of the plaintiff’s ex-husband’s individual
retirement account following his death.

The panel affirmed the district court’s conclusion that an
Arizona state court would disregard the IRA’s choice of law
provision and instead apply Arizona’s revocation-on-
divorce statute.

The panel held that the application of the Arizona statute
was not preempted by the Employee Retirement Income
Security Act or other federal statutes and regulations
governing IRAs.

*
The Honorable Eugene E. Siler, Jr., United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 LAZAR V. KRONCKE 3

The panel reversed the district court’s ruling that the
plaintiff lacked standing to bring her constitutional challenge
under the Contracts Clause because, as a designated
beneficiary, she possessed only an expectation interest in the
IRA. The panel held that the plaintiff had standing because
Arizona’s revocation-on-divorce statute operated to
extinguish her valid expectancy interest in the IRA. This
injury was actual, concrete, and particularized, and a ruling
in the plaintiff’s favor would redress her injury.

The panel held that the Contracts Clause challenge
nonetheless failed on the merits. The revocation-on-divorce
statute was enacted after the IRA was established. Agreeing
with the Tenth Circuit, the panel concluded that this change
in state law did not operate as a substantial impairment of a
contractual relationship because the plaintiff never
possessed a vested contractual right.

The panel held that the California district court in which
the action was filed did not abuse its discretion in
transferring the case to Arizona based on a lack of personal
jurisdiction over the estate of the plaintiff’s ex-husband. The
panel also concluded that the plaintiff waived a dormant
Commerce Clause claim, and the district court did not abuse
its discretion in staying discovery.

COUNSEL

Josh A. Lazar (argued), The Geraci Law Firm, Irvine,
California, for Plaintiff-Counter-Defendant-Cross-
Defendant-Appellant.

Timothy James Ryan (argued), Frazer Ryan Goldberg &
Arnold LLP, Phoenix, Arizona; Jared M. Toffer, Finlayson
4 LAZAR V. KRONCKE

Toffer Roosevelt & Lilly LLP, Irvine, California; Charles
W. Wirken, Gust Rosenfeld PLC, Phoenix, Arizona; for
Defendant-Counter-Defendant-Appellee.

OPINION

SILER, Senior Circuit Judge:

Plaintiff Carolyn Lazar appeals the district court’s grant
of Defendant Mark G. Kroncke’s motion to dismiss her
second amended answer and cross-claim (“SAACC”). For
the reasons set forth below, we reverse the district court’s
ruling that Lazar lacks standing to bring her constitutional
challenge under the Contracts Clause, but nonetheless affirm
the judgment finding that Lazar’s constitutional challenge
fails and affirming the district court’s other rulings.

FACTUAL AND PROCEDURAL BACKGROUND

Lazar was married to George Thomas Kroncke
(“Decedent”) when he established an individual retirement
account (“IRA”) in 1992 with Charles Schwab & Co., Inc.
(“Schwab”). The Decedent named Lazar as the IRA
beneficiary. Lazar and the Decedent divorced in 2008 while
domiciled in Arizona. Before Decedent’s death in 2012, he
neither removed nor reaffirmed Lazar as the IRA
beneficiary. After the Decedent’s death, Kroncke, as
administrator of his father’s estate (the “Estate”), made a
demand on Schwab for the IRA proceeds on the basis of
Arizona’s revocation-on-divorce (“ROD”) statute, A.R.S.
§ 14-2804. Schwab froze the IRA pending judicial
resolution.

Lazar filed this action in the Central District of
California against Schwab for breach of contract and against
 LAZAR V. KRONCKE 5

the Estate for declaratory relief. In her first amended
complaint (“FAC”), Lazar challenged the constitutionality
under the Contracts Clause of applying Arizona’s ROD
statute retroactively because the IRA was established in
1992 and the ROD statute was enacted in 1995.

Schwab filed a counterclaim against both parties under
Federal Rule of Civil Procedure 22 seeking to liquidate the
securities held by the IRA and interplead those funds into the
district court. The California district court granted Schwab’s
motion to be dismissed as an interpleader but ordered it to
continue to hold and not liquidate the securities in the IRA.

The district court dismissed Lazar’s FAC on the basis
that it did not state a claim under the Contracts Clause
because Lazar had no vested interest in the IRA. The district
court permitted Lazar to file her SAACC. The SAACC
added a claim that the IRA statute and the regulations
promulgated thereunder preempted Arizona’s ROD statute
to the extent it retroactively revokes IRA beneficiary
designations. The district court dismissed Lazar’s SAACC
on the grounds that it lacked personal jurisdiction over the
Estate and ordered the case transferred to the District of
Arizona pursuant to 28 U.S.C. § 1406(a).

After the case was transferred to the District of Arizona,
the district court granted the Estate’s renewed motion to
dismiss, holding that the pertinent IRA statutes and
regulations did not preempt the operation of Arizona’s ROD
statute, that the prior decision on the Contracts Clause was
the law of the case and the court would have reached the
same outcome for the same reasons, and that the Commerce
Clause argument need not be considered since it was not
included in the SAACC. The district court stayed the
distribution of IRA proceeds pending appeal.
6 LAZAR V. KRONCKE

STANDARD OF REVIEW

We review the dismissal of the SAACC de novo. See
Syed v. M-I, LLC, 853 F.3d 492, 499 (9th Cir. 2017). A
dismissal for lack of personal jurisdiction is reviewed de
novo. Harris Rutsky & Co. Ins. Servs. v. Bell & Clements
Ltd., 328 F.3d 1122, 1128 (9th Cir. 2003). Transfer orders
pursuant to 28 U.S.C. § 1406(a) are reviewed for an abuse of
discretion. King v. Russell, 963 F.2d 1301, 1304 (9th
Cir.1992). Stays of discovery pending resolution of the
motion to dismiss are also reviewed for an abuse of
discretion. Alaska Cargo Transp., Inc. v. Alaska R.R. Corp.,
5 F.3d 378, 383 (9th Cir. 1993).

DISCUSSION

Enforceability of the IRA’s Choice of Law Provision
under Arizona Law

Two documents govern the IRA: the Schwab Individual
Retirement Plan (“the Plan”) and the Schwab IRA
Application (“the Adoption Agreement”). The Plan sets
forth the rights and responsibilities of the account holder and
Schwab, and the Adoption Agreement designates
beneficiaries. The Plan contains a choice-of-law provision
specifying that:

The Plan is intended to qualify as an
individual retirement account plan under
[Internal Revenue] Code Section 408.
Accordingly, the Plan shall be governed by
and interpreted under the laws of the United
States, and, to the extent such laws do not
apply, shall be governed by and interpreted
under the laws of the State of California.
 LAZAR V. KRONCKE 7

The Adoption Agreement does not itself contain a choice-of-
law provision but does state “I hereby adopt the Charles
Schwab & Co., Inc., INDIVIDUAL RETIREMENT PLAN
(‘the Plan’) which is made part of this Agreement . . . .” The
district court did not resolve whether the choice-of-law
provision governed both the Plan and the Adoption
Agreement, instead concluding that the choice-of-law
provision was unenforceable under Arizona law.

The district court began from the proposition that “[a]
federal court sitting in diversity must look to the forum
state’s choice of law rules to determine the controlling
substantive law.” Zinser v. Accufix Research Inst., Inc.,
253 F.3d 1180, 1187 (9th Cir. 2001). Arizona generally
follows the Restatement (Second) of Conflict of Laws
(“Restatement”) to assess the validity of choice-of-law
provisions. See Swanson v. Image Bank, Inc., 77 P.3d 439,
441 (Ariz. 2003). The relevant Restatement section provides
that the choice-of-law provision in a contract governs “if the
particular issue is one which the parties could have resolved
by an explicit provision in their agreement directed to that
issue.” Restatement (Second) of Conflict of Laws § 187
(1971). But, the same section also provides a caveat—the
law of the state chosen by the contracting parties will not be
applied if “application of the law of the chosen state would
be contrary to a fundamental policy of a state which has a
materially greater interest than the chosen state in the
determination of the particular issue and which . . . would be
the state of the applicable law in the absence of an effective
choice of law by the parties.” Ibid.

For instruments governing donative transfers, Arizona
has deviated from the Restatement’s choice-of-law analysis
as set forth at Arizona Revised Statute § 14-2703: “The
meaning and legal effect of a governing instrument is
8 LAZAR V. KRONCKE

determined by the local law of the state selected in the
governing instrument unless the application of that law . . .
is contrary to any other public policy of this state otherwise
applicable to the disposition.” An IRA is a “governing
instrument” under the statute. A.R.S. § 14-1201(22).

Lazar contends that the district court erred by not
conducting a Swanson Restatement analysis and instead
basing its decision on the Arizona statute. She argues that
because the parties could have resolved this issue by
contract, subsection 187(1) of the Restatement is satisfied
and that concludes the analysis. But the Restatement
expressly recognizes that “[t]he chosen law should not be
applied without regard for the interests of the state which
would be the state of the applicable law with respect to the
particular issue involved in the absence of an effective
choice by the parties.” § 187 cmt. g. We cannot conclude
that an Arizona court would ignore an Arizona statute
directly on point in favor of a Restatement analysis, so
Lazar’s argument to that effect is unavailing.

The purpose of Arizona’s ROD statute is to “achiev[e]
the social goal of implementing [a person’s] probable
intention in the wake of a divorce.” In re Estate of Dobert,
963 P.2d 327, 333 (Ariz. Ct. App. 1998). To effectuate this
purpose, Arizona automatically revokes all dispositions to a
former spouse upon divorce and requires a person intending
to retain such dispositions to re-designate the former spouse
in writing and in compliance with the instrument’s
formalities. A.R.S. § 14-2804; In re Estate of Lamparella,
109 P.3d 959, 965–66 (Ariz. Ct. App. 2005). This contrasts
with California’s approach, under which divorce establishes
a presumption of intent to revoke which can be rebutted by
clear and convincing evidence. Cal. Prob. Code § 5600.
Thus, California allows inquiry into the very extrinsic
 LAZAR V. KRONCKE 9

manifestations of contrary intent which Arizona seeks to
foreclose. Arizona’s interest in its ROD statute is not merely
to effectuate a donor’s probable intent, but also to provide
clarity and avoid litigation. Even the statutory exception
demonstrates this desire for clarity, because doing so
requires either an express provision ex-ante that the
designation will apply in the event of divorce or an ex-post
reaffirmation. A.R.S. § 14-2804(A).

Lazar challenges the strength of Arizona’s interest
because a donor can override the operation of Arizona’s
ROD statute. She draws an analogy to Cardon v. Cotton
Lane Holdings, Inc., where the Arizona Supreme Court
allowed California law to govern a deed of trust and preclude
a deficiency judgment which would have been available
under Arizona law because in both states it was legal to
contract away the availability of a deficiency judgment.
841 P.2d 198, 202–04 (Ariz. 1992). However, Cardon did
not involve an Arizona statute specifying Arizona’s intent to
deviate from the Restatement and apply its own law to cases
involving donative transfers. Lazar also stresses that
Arizona’s ROD statute allows for parties to avoid its effects,
but this can occur only with affirmative and written evidence
of intent without recourse to extrinsic evidence.

The Plan’s choice-of-law provision is not an “express
term” for the purposes of Arizona’s ROD statute. A.R.S.
§ 14-2804(A). The reference to “express terms” in the ROD
statute pertains only to the effect on an instrument wrought
by divorce, so any “express terms” removing an instrument
from the scope of the ROD statute must address the effect of
divorce. Ibid. (“Except as provided by the express terms of
a . . . contract relating to the division of the marital estate
made between a divorced couple . . .”). The Plan’s choice-
of-law provision was silent in this regard. The district court
10 LAZAR V. KRONCKE

thus correctly determined that an Arizona state court would
disregard the choice-of-law provision in the Plan and instead
apply Arizona’s ROD statute.

Conflict Preemption

Lazar claims that application of Arizona’s ROD statute
is preempted by federal statutes and regulations governing
IRAs. None of these statutes or regulations contains an
express preemption clause, but state law must nevertheless
yield to federal law to the extent the laws conflict. See
Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372
(2000). Federal regulations have the same preemptive effect
as federal statutes. See Fid. Fed. Sav. & Loan Ass’n v. de la
Cuesta, 458 U.S. 141, 153 (1982). Because domestic
relations and probate are areas of traditional state control,
Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979)
(domestic relations); Zschernig v. Miller, 389 U.S. 429, 440
(1968) (probate), there is a presumption against preemption
in such areas. Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S.
141, 151 (2001).

The Plan states that it “is intended to qualify as an
individual retirement account under Code Section 408,”
referring to 26 U.S.C. § 408—the section of the Internal
Revenue Code creating IRAs. It is undisputed that IRAs are
governed by federal law. The dispute is between Lazar’s
position that IRA regulations compel distribution to her even
in the face of the ROD statute and the Estate’s position that
the regulations do not govern who must be paid the IRA
proceeds but instead only dictate how those funds must be
paid out for taxation purposes.
 LAZAR V. KRONCKE 11

a. Lazar’s Definitional Argument Fails

In arguing that she is entitled to the IRA, Lazar first relies
upon the Employee Retirement Income Security Act’s
(“ERISA’s”) definition of beneficiary: “[A] person
designated by a participant, or by the terms of the employee
benefit plan, who is or may become entitled to a benefit
thereunder.” 29 U.S.C. § 1002(8). The second provision on
which she relies is the IRA distribution rule:

[A]n IRA is subject to the required minimum
distribution rules provided in section
401(a)(9) [applicable to ERISA plans]. In
order to satisfy section 401(a)(9) for purposes
of determining required minimum
distributions . . . the rules of [26 C.F.R.]
§§ 1.401(a)(9)-1 through 1.401(a)(9)-9 and
1.401(a)(9)-6 for defined contribution plans
must be applied, except as otherwise
provided in this section.

26 C.F.R. § 1.408-8, Q&A-1(a). Lazar argues that this IRA
distribution rule necessarily incorporates ERISA’s definition
of “beneficiary” any time it is used in the term “designated
beneficiary.”

Building upon this asserted equivalence, Lazar argues
that IRA distribution rules demarcate the only two methods
whereby someone can become a beneficiary: “[a]n
individual may be designated as a beneficiary under the plan
either by the terms of the [IRA] plan or, if the plan so
provides, by an affirmative election by the [IRA’s owner]. . .
specifying the beneficiary.” 26 C.F.R. § 1.401(a)(9)-4,
Q&A-1(a). As provided in 26 C.F.R. § 1.408-8, Q&A-1(b),
the ERISA language reading “employee” can be altered to
read “IRA owner.” Since the regulation describing the
12 LAZAR V. KRONCKE

procedures for making someone a designated beneficiary
does not contemplate the operation of ROD statutes and she
was designated as the beneficiary on the Plan documents,
Lazar argues that this combination of statutes and
regulations compels distribution to her.

The terms “beneficiary” and “designated beneficiary”
cannot be conflated in this manner. Otherwise it would have
been redundant to have a separate definition of designated
beneficiary:

A designated beneficiary is an individual
who is designated as a beneficiary under the
plan. An individual may be designated as a
beneficiary under the plan either by the terms
of the plan or, if the plan so provides, by an
affirmative election by the [IRA owner] . . .
specifying the beneficiary. . . . A designated
beneficiary need not be specified by name in
the plan or by the [IRA owner] to the plan in
order to be a designated beneficiary so long
as the individual who is to be the beneficiary
is identifiable under the plan. . . . The fact
that an [IRA owner’s] interest under the plan
passes to a certain individual under a will or
otherwise under applicable state law does
not make that individual a designated
beneficiary unless the individual is
designated as a beneficiary under the plan.

26 C.F.R. § 1.401(a)(9)-4, Q&A-1 (emphasis added). This
definition contemplates that “designated beneficiary”
demarcates a smaller class than does “beneficiary” for two
reasons. First, only an individual can be a designated
beneficiary, excluding any trust or estate from the status.
 LAZAR V. KRONCKE 13

Second, an interest is allowed to pass under a will or through
the operation of otherwise applicable state law to someone
who is not a designated beneficiary, but such passage does
not confer designated beneficiary status upon the recipient.

We thus find it clear that “beneficiary” and “designated
beneficiary” are not interchangeable, a conclusion consistent
with the preferential tax treatment provided to designated
beneficiaries, such as avoiding application of the IRS’s five-
year distribution rule. See 26 C.F.R. § 1.401(a)(9)-8, Q&A-
11; IRS Publication 590-B, Distributions from Individual
Retirement Arrangements (IRAs) (available at
http://www.irs.gov/pub/irs-pdf/p590b.pdf) at 10 (“The 5-
year rule applies in all cases . . . where any beneficiary is not
an individual (for example, the owner named his or her estate
the beneficiary).”). Thus, the regulation Lazar cites as
setting out the only ways an individual can become a
“beneficiary” actually sets forth the ways someone can
become a “designated beneficiary” eligible for preferential
tax treatment. See 26 C.F.R. § 1.401(a)(9)-4 Q&A 1
(beginning by saying “an individual may be designated as
the beneficiary”) (emphasis added). This means the district
court correctly concluded that “designated beneficiary” is a
term-of-art and that the IRA distribution rules govern only
how distributions will be treated for tax purposes and does
not determine who is entitled to them.

Further support for our conclusion is found in the
regulation listing as possible IRA beneficiaries “(except
where the context indicates otherwise) the estate of the
individual, dependents of the individual, and any person
designated by the individual to share in the benefits of the
account after the death of the individual.” 26 C.F.R. 1.408-
2(b)(8). Because an estate is a potential IRA beneficiary, an
14 LAZAR V. KRONCKE

IRA beneficiary need not be someone who qualifies as a
“designated beneficiary” under ERISA.

Lazar argues that the district court erred by failing to
consider the parenthetical “except where the context
indicates otherwise” in § 1.408.2(b)(8) as a clear reference
to the IRA Plan. She asserts that the terms of the Plan
exclude the Estate as a beneficiary by defining beneficiary
as “the person or persons designated from time to time by a
Participant . . . to receive benefits by reason of the death of
the Participant. . . .” It is difficult to see how the
parenthetical “except where the context indicates otherwise”
is a clear reference to the Plan when the word “plan” appears
numerous times elsewhere in the same regulation. In any
event, the terms of the Plan list the Estate as the default
beneficiary in the absence of a valid beneficiary designation
and so do not exclude it.

b. Lazar’s Reliance on ERISA and FEGLIA Cases
Is Misplaced

In support of her preemption claim, Lazar cites Egelhoff,
where the Supreme Court ruled that Washington’s ROD
statute could not be applied to ERISA-qualified plans.
Egelhoff, 532 U.S. at 150. The Court held that the ROD
statute was preempted since it had a “connection with”
ERISA plans by interfering with the statutory requirements
that ERISA “plans be administered, and benefits be paid, in
accordance with plan documents.” Ibid. The Court has also
held that a divorce decree is ineffective to revoke an ex-
wife’s interest as the named beneficiary of an ERISA plan.
See Kennedy v. Plan Adm’r for DuPont Sav. & Inv. Plan,
555 U.S. 285, 288 (2009). It also conducted a similar
analysis when it considered a Federal Employee Group Life
Insurance (“FEGLIA”) policy, ruling that a Virginia statute
permitting a current wife to recover funds distributed to an
 LAZAR V. KRONCKE 15

ex-wife was preempted as an obstacle to Congress’s intent
to establish a clear procedure for designating a beneficiary.
See Hillman v. Maretta, 133 S. Ct. 1943, 1953 (2013). Free
v. Bland, another case upon which Lazar relies, is inapposite
since the federal savings bonds at issue there involved
regulations establishing a right of survivorship, which is not
the case for IRAs. See 369 U.S. 663, 667–68 (1962).

It does not follow from these cases that IRA plans should
be treated in the same manner. Both ERISA and FEGLIA
include express preemption clauses, see 29 U.S.C. § 1144(a)
(ERISA) and 5 U.S.C. § 8709(d) (FEGLIA), while IRA
statutes do not. Although the absence of an express
preemption clause is not dispositive, see de la Cuesta,
458 U.S. at 153, the contrast between ERISA’s expansive
preemption language and the absence of such language in the
IRA statutes is persuasive as “pre-emption claims turn on
Congress’s intent.” Gobeille v. Liberty Mut. Ins. Co., 136 S.
Ct. 936, 946 (2016) (alteration and citation omitted).

Despite conceding that the ERISA preemption provision
does not govern IRAs, Lazar nonetheless claims that policies
underlying IRAs—avoiding probate proceedings, avoiding
uncertainty and potential resulting losses, and avoiding the
siphoning off of funds to pay administrative, legal, and tax
fees—dictate that preemption should be coextensive. Even
assuming the validity of these policies, they offer no
justification to preempt the ROD statute because there is no
underlying conflict between the ROD statute addressing who
receives benefits and the IRA regulations mandating how
those benefits are distributed.
16 LAZAR V. KRONCKE

c. Debickero Does Not Mandate Distribution to
Lazar

Lazar additionally relies on Charles Schwab & Co. v.
Debickero, 593 F.3d 916 (9th Cir. 2010), to assert that
federal regulations mandate distribution of the IRA to her.
This over-reads Debickero. In Debickero, the IRA custodian
filed an interpleader action to determine whether the
surviving spouse or the adult children designated as
beneficiaries were entitled to the IRA. Id. at 917–18. The
surviving spouse claimed that ERISA regulations mandating
distribution to a surviving spouse should apply to IRAs, but
we rejected that argument, holding the regulations
insufficient to overcome the beneficiary designation made
on an IRA by the decedent. Id. at 917–22. Contrary to
Lazar’s assertion that federal law mandates any particular
distribution outcome, we made clear that IRA regulations
“leave the designation of beneficiaries to the individual
account holder.” Id. at 922.

Contracts Clause Challenge

a. The District Courts Erred When They Denied
Lazar Had Standing

The Contracts Clause prevents any state from passing a
law impairing the obligation of contracts. See U.S. Const.
art. I, § 10. The crux of Lazar’s claim is that Arizona’s ROD
statute violates this constitutional provision by interfering
with her contractual rights.

The Arizona district court cited the California district
court’s prior order denying standing to raise the Contracts
Clause challenge as the law of the case and stated that it
would have reached the same conclusion for the same
reasons. The California district court held that Lazar lacks
 LAZAR V. KRONCKE 17

standing to challenge the application of the ROD statutes
because she possessed only an expectation interest in IRA.
This conflated standing with the merits. To have standing, a
party must have suffered an injury “concrete, particularized,
and actual or imminent; fairly traceable to the challenged
action; and redressable by a favorable ruling.” Monsanto
Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010).
Arizona’s ROD statute operated to extinguish Lazar’s valid
expectancy interest in the IRA—an injury which is actual,
concrete, and particularized. She challenges the
constitutionality of the ROD statute, and a ruling in her favor
would redress her injury because invalidation of Arizona’s
ROD statute would entitle her to the IRA funds. This is
sufficient to confer standing.

b. Lazar’s Contracts Clause Challenge Fails on the
Merits

Because the lower courts addressed the merits and the
issue was fully briefed, we too proceed to the merits of
Lazar’s Contracts Clause challenge. The question of
whether the operation of an ROD statute violates the
Contracts Clause is an issue of first impression in this circuit.
In conducting a Contracts Clause analysis, we first ask if the
change in state law has “operated as a substantial impairment
of a contractual relationship.” Gen. Motors Corp. v. Romein,
503 U.S. 181, 186 (1992) (internal quotation marks omitted).
“This inquiry has three components: whether there is a
contractual relationship, whether a change in law impairs
that contractual relationship, and whether the impairment is
substantial.” Ibid. If a substantial impairment is found, we
then assess the significance of the State’s justification and
the legitimacy of the public purpose behind the law, such as
“the remedying of a broad and general social or economic
problem.” Energy Reserves Grp. v. Kan. Power & Light Co.,
18 LAZAR V. KRONCKE

459 U.S. 400, 411–12 (1983). We then look to whether the
change in applicable law is based on reasonable conditions
and is appropriate to achieve the stated public purpose. Id.
at 412. Courts generally defer to the judgment of state
legislatures as to both necessity and reasonableness so long
as the state itself is not a contracting party. Id. at 412–13.

(1) Divergent Authority: Whirlpool and Stillman

The Eighth Circuit has held Oklahoma’s ROD statute
unconstitutional as applied to a life insurance policy.
Whirlpool Corp. v. Ritter, 929 F.2d 1318, 1323 (8th Cir.
1991). The Eighth Circuit construed the life insurance
contract to contain a term that the insurance company would
pay the decedent’s chosen beneficiary. Id. at 1322. The
court therefore determined that when operation of the ROD
statute amended the beneficiary, Oklahoma substantially
impaired the decedent’s contract with the insurance
company. Ibid. In its reasonableness analysis, the Eighth
Circuit found Oklahoma’s justification legitimate but
insufficient for retroactive application, citing the possibility
that the decedent did not desire to revoke his ex-wife’s
beneficiary status as evidence of constitutional infirmity. Id.
at 1323. The Eighth Circuit reasoned that the possibility of
the decedent’s reaffirming his ex-wife as beneficiary after
divorce bolstered its conclusion—just as an individual could
not be presumed to know he must change beneficiary status
after a change in family arrangements (the rationale behind
ROD statutes), it is also unreasonable for people to be
required to investigate positive changes in the law enacted
after they make beneficiary designations. Ibid. On that
basis, the court found it inappropriate and unreasonable to
apply the ROD statute retroactively in light of the statutory
purpose of effectuating donor intent. Ibid.
 LAZAR V. KRONCKE 19

In contrast, the Tenth Circuit has upheld the
constitutionality of Utah’s ROD to an annuity, finding no
contractual impairment had occurred. Stillman v. Teachers
Ins. & Annuity Ass’n Coll. Ret. Equities Fund, 343 F.3d
1311, 1322 (10th Cir. 2003). The Tenth Circuit
conceptualized the annuity as having both contractual and
donative transfer elements. Ibid. The contractual elements
were those between the annuity company and the
annuitant—to fund the annuity and pay as directed by the
annuitant—and the Contracts Clause would only be violated
if the state statute interfered with those elements. The
donative transfer element was naming the beneficiary. Ibid.
The Tenth Circuit characterized the annuity company as an
escrow-agent, and because its obligation to pay the proceeds
of the annuity was not impacted by the operation of Utah’s
ROD statute, there was no violation of the Contracts Clause.
Ibid. Because it found no significant contractual
impairment, the Tenth Circuit did not address the state’s
justification for enacting the legislation.

(2) Lazar’s Interest Never Vested so Her
Contracts Clause Challenge Fails

We agree with the Stillman court and conclude that no
substantial contractual impairment occurred through
application of Arizona’s ROD statute to the IRA, and we
find there was no violation of the Contracts Clause. Because
Lazar never possessed a vested contractual right, she
suffered no contractual impairment. See Dodge v. Bd. of
Educ. of City of Chicago, 302 U.S. 74, 80 (1937) (holding
that Contracts Clause challenge failed in the absence of
vested contractual rights). The Decedent’s contract with
Schwab specified that Schwab would pay his chosen
beneficiary in the event of his death. The beneficiary
designation itself was not a contractual term. The IRA
20 LAZAR V. KRONCKE

specifically provided that the Decedent could alter his
beneficiary designation at any time and for any reason, so no
third-party rights to the IRA could vest until his death. And,
as a citizen of Arizona, the Decedent was governed by its
law mandating the automatic revocation of any designation
of a former spouse through operation of the ROD statute.
The Decedent was free to reaffirm Lazar as his designated
beneficiary but chose not to do so. Thus, Lazar’s expectancy
interest, which could not vest until the death of the Decedent,
was extinguished upon divorce and never vested. Finding
no substantial impairment to have occurred, we need not
assess the legitimacy of Arizona’s justification for its ROD
statute.

Venue Transfer Based on a Lack of Personal
Jurisdiction

The California district court transferred this action to the
District of Arizona under 28 U.S.C. § 1406(a) on the
grounds that it lacked personal jurisdiction over the Estate.
Lazar argues that the Estate waived any objection to personal
jurisdiction in California by moving to dismiss Lazar’s
cross-claim and not Schwab’s counterclaim, and that in any
event, the Estate’s contacts with California were sufficient
to establish personal jurisdiction in California. We conclude
that the California district court did not abuse its discretion
in transferring the case to Arizona.

a. Potential Waiver of the Personal Jurisdiction
Defense

Lazar posits that the Estate waived any personal
jurisdiction defense because it did not move to dismiss
Lazar’s cross-claim until after Schwab’s counterclaim had
already been dismissed, arguing that the Estate should have
challenged Schwab’s counterclaim under Federal Rule of
 LAZAR V. KRONCKE 21

Civil Procedure 12(b)(2) and not in response to Lazar’s
cross-claim. Because Schwab was dismissed from the case
before the Estate filed its renewed motion to dismiss, Lazar
argues, the Estate waived any personal jurisdiction defense.

Generally, waiver of the defense of personal jurisdiction
requires a showing of conduct inconsistent with raising or
maintaining the defense. See, e.g., Peterson v. Highland
Music, Inc., 140 F.3d 1313, 1318–19 (9th Cir. 1998). The
California district court found that there were five occasions
when the Estate could have waived its personal jurisdiction
defense and upon each of those occasions the defense was
expressly preserved. It therefore found the Estate had
complied with its obligation under Federal Rule of Civil
Procedure 12(h)(1) to raise a personal jurisdiction defense at
the earliest stage possible.

The cases upon which Lazar relies do not demonstrate
that the California district court abused its discretion. 1 One
case even expressly recognized that a personal jurisdiction
defense remains viable when the cross-claim defendant (here
the Estate) has not waived personal jurisdiction. See United
States v. All Right, Title & Interest in Contents of Following
Accounts at Morgan Guar. Trust Co. of N.Y., No. 95 CIV.
10929 HB THK, 1996 WL 695671, at *13 (S.D.N.Y. Dec.
5, 1996). In sum, these cases provide more support to the
Estate than to Lazar.

1
Lesnik v. Public Industrial Corp. involved a challenge to improper
venue and not to personal jurisdiction. 144 F.2d 968, 977 (2d Cir. 1944).
Peterson v. Highland Music Inc. focused on the possibility of
“sandbagging” by not raising the issue of personal jurisdiction until later
stages of proceedings and was concerned with preventing a litigant from
engaging in strategic behavior to test the waters of litigation, something
which did not occur here. 140 F.3d 1313, 1318 (9th Cir, 1998).
22 LAZAR V. KRONCKE

b. California Cannot Properly Exercise Jurisdiction
over the Estate

Lazar contends that the Estate’s contacts with California
were sufficient to confer specific personal jurisdiction.
Lazar cites four different contacts with California: (1) the
Decedent opened the IRA with Schwab, a California
corporation; (2) the Decedent made an average of 124 trades
per year in the account from 1992 to 2012; (3) the Decedent
made Schwab his “agent and attorney-in-fact” for purposes
of buying and selling on the account; and (4) the Estate sent
a letter to Schwab from California. The California district
court found that the first three contacts were not sufficiently
“substantial” or “continuous and systematic” to confer
general personal jurisdiction, see Helicopteros Nacionales
de Colombia, S.A. v. Hall, 466 U.S. 408, 414–16 (1984), and
found that the fourth contact insufficient to confer specific
personal jurisdiction.

Lazar does not assert on appeal that there was general
personal jurisdiction. She argues only that the California
contacts established specific personal jurisdiction. We
utilize a three-part test when making specific personal
jurisdiction determinations:

(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
 LAZAR V. KRONCKE 23

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

Schwarzenegger v. Fred Martin Motor Co. 374 F.3d 797,
802 (9th Cir. 2004). Purposeful availment and purposeful
direction are distinct inquiries. The personal availment
inquiry asks if the defendant “purposefully avail[ed]
[himself] of the privilege of conducting activities in the
forum State, thus invoking the benefits and protections of its
laws.” Ibid. The purposeful direction inquiry asks if the
defendant directed an action at the forum state such that
personal jurisdiction could be exercised even without
physical contacts with the forum. Id. at 803.

In its transfer order, the California district court focused
on the purposeful direction test. Purposeful direction
requires a defendant to have “(1) committed an intentional
act, (2) expressly aimed at the forum state, [and] (3) causing
harm that the defendant knows is likely to be suffered in the
forum state.” Yahoo! Inc. v. La Ligue Contre Le Racisme Et
L’Antisemitisme, 433 F.3d 1199, 1206 (9th Cir. 2006)
(quoting Schwarzenegger, 347 F.3d at 803). The first three
contacts are insufficient to constitute purposeful direction, as
none of them was expressly aimed at California and any
harm to the IRA would be felt in Arizona where the decedent
and Lazar were domiciled.

The Estate’s sending of a demand letter to Schwab was
an intentional act. See, e.g., Bancroft & Masters, Inc. v.
Augusta Nat’l Inc., 223 F.3d 1082, 1088 (9th Cir. 2000)
(finding that sending a letter constituted an intentional act).
But, as the California district court found, the act of sending
the letter was aimed at Arizona and not California. We look
to who would suffer the harm and where the harm would be
24 LAZAR V. KRONCKE

felt when determining whether a defendant expressly aimed
his activities at the forum state. See Metro. Life Ins. Co. v.
Neaves, 912 F.2d 1062, 1065 (9th Cir. 1990) (holding that
the place of incorporation of the letter’s recipient is not
dispositive but instead the focus is on where the letter’s
effects would be felt). The letter was sent to a Schwab
address in Arizona, and any harm which Lazar would suffer
would occur in Arizona, where she resides, and not in
California.

The California district court also did not abuse its
discretion when it conducted a purposeful availment analysis
in assessing two additional contacts with California which
Lazar claimed conferred specific personal jurisdiction over
the Estate. The first contact is the choice-of-law provision
in the IRA stipulating that California law governs in the
absence of applicable federal law. Because it is not essential
that the state whose law will be applied to a lawsuit exercise
jurisdiction over the litigation, this contact did not confer
specific personal jurisdiction. See Shaffer v. Heitner,
433 U.S. 186, 215 (1977). The second contact is Kroncke’s
domicile in California, but this is immaterial as the Estate in
located in Arizona. It is the Estate which is the party to this
lawsuit, so Kroncke’s domicile does not impact the
jurisdictional analysis. See Religious Tech. Ctr. v. Liebreich,
339 F.3d 369, 374 (5th Cir. 2003).

Lazar’s Dormant Commerce Clause Claim Was
Waived

Lazar concedes that she failed to specifically allege a
violation of the dormant Commerce Clause in her SAACC.
In seeking to bring this challenge on appeal, she relies on her
general allegation below that ROD statutes are
unconstitutional for reasons “including but not limited to” a
violation of the Contracts Clause and conflict preemption.
 LAZAR V. KRONCKE 25

But, Federal Rule of Civil Procedure 5.1 requires a party
challenging the constitutionality of a state statute to “file a
notice of constitutional question stating the question and
identifying the paper that raises it” so that a state attorney
general can intervene if desired to defend the statute. Lazar
filed such a notice, but specified only the Contracts Clause
and conflict preemption as grounds for her constitutional
challenge.

Lazar now asserts before this court that her Commerce
Clause argument should be considered anyway because it
was briefed and alternatively addressed on the merits by the
district court, meeting the standard that an “argument must
be raised sufficiently for the trial court to rule on it.” In re
E.R. Fegert, Inc., 887 F.2d 955, 957 (9th Cir.1989). But in
In re E.R. Fegert, Inc. we determined that the bankruptcy
court “could have” ruled on the applicability of a relevant
Supreme Court decision because a party had actually argued
its applicability. See ibid. Lazar also cites Cmty. House, Inc.
v. City of Boise, where we considered an Establishment
Clause challenge when it was disputed whether the claim
had been properly raised before the district court but the
district court considered and resolved the issue. 490 F.3d
1041, 1054 (9th Cir. 2007). In that case, the district court
did not find waiver; instead it considered and resolved the
issue. Ibid. Here, by contrast, the district court expressly
found Lazar’s Commerce Clause claim to have been waived.
Neither of those precedents rescues Lazar.

Stay of Discovery

The district court stayed discovery pending resolution of
the Estate’s motion to dismiss the SAACC. District courts
orders controlling discovery are reviewed for an abuse of
discretion. Alaska Cargo, 5 F.3d at 383. Lazar argues that
she should have been allowed discovery into whether the
26 LAZAR V. KRONCKE

Decedent redesignated her as the IRA beneficiary after their
divorce. No discovery was necessary, however, as Arizona
law is clear that there cannot be substantial compliance with
the redesignation requirement, Lamparella, 109 P.3d at 967,
and there is no dispute that the Decedent failed to change the
designation.

Lazar also argues that discovery should have proceeded
because of a purported 2001 designation which made the
Marital Trust the contingent beneficiary of the IRA. Lazar
did not argue below either that the Estate is not the default
beneficiary of the IRA or that she has title to the IRA through
some other post-divorce instrument, and Schwab identified
only Lazar’s and the Estate’s claims in its interpleader. The
district court therefore did not abuse its discretion in denying
discovery on this issue pending resolution of the Estate’s
motion to dismiss.

CONCLUSION

For the foregoing reasons, although we disagree with the
district court’s holding that Lazar lacks standing to raise her
Contracts Clause challenge, we affirm the judgment below.

AFFIRMED.