Pollock v. Colorado, State of et al

Filing 56

ORDER - IT IS THEREFORE ORDERED granting Defendant Hon. William B. Bain's Motion to Dismiss the Amended Complaint (Doc. 43 ). The Court dismisses Plaintiff's claims against Defendant Judge Bain with prejudice. IT IS FURTHER ORDERED denyin g Defendants Motion to Sanction Plaintiff's Attorney (Doc. 49 ). IT IS FURTHER ORDERED that, because Plaintiff voluntarily dismissed his claims against Defendants State of Colorado and District Court for El Paso County (Doc. 41 ) and the Court now dismisses Plaintiff's claims against Defendant Judge Bain, the Clerk of Court shall enter judgment accordingly and close this case. (See document for further details). Signed by Judge John J Tuchi on 4/3/17. (LAD)

1

WO

NOT FOR PUBLICATION

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Stephen Michael Pollock,
Plaintiff,

10
11

ORDER

v.

12

No. CV-16-02740-PHX-JJT

State of Colorado, et al.,

13

Defendants.

14
15

At issue are Defendant Hon. William B. Bain’s Motion to Dismiss the Amended

16

Complaint (Doc. 43, MTD), to which Plaintiff Stephen Michael Pollock filed a Response

17

(Doc. 50, Resp. to MTD) and Defendant filed a Reply (Doc. 52, Reply to MTD), and

18

Defendant’s Motion to Sanction Plaintiff’s Attorney (Doc. 49, Mot. to Sanction), to

19

which Plaintiff’s Attorney filed a Response (Doc. 51) and Defendant filed a Reply (Doc.

20

53). The parties did not request oral argument on the Motions, and the Court finds these

21

matters appropriate for resolution without oral argument. See LRCiv 7.2(f).

22

Plaintiff brought this lawsuit to challenge rulings of Defendant Hon. William B.

23

Bain, a Judge in Colorado’s District Court for El Paso County, in an ongoing proceeding

24

in which Plaintiff is a party. (Doc. 1, Compl.; Doc. 39, Am. Compl.) Plaintiff also named

25

the State of Colorado and the District Court for El Paso County as Defendants and then

26

voluntarily dismissed his claims against those Defendants. (Doc. 41.) The remaining

27

Defendant, Judge Bain, now moves to dismiss Plaintiff’s claims against him for lack of

28

personal jurisdiction and failure to state a claim pursuant to Federal Rules of Civil

1

Procedure 12(b)(2) and 12(b)(6). (MTD at 1.) Defendant also moves for sanctions against

2

Plaintiff’s attorney pursuant to Federal Rule of Civil Procedure 11 for filing frivolous

3

claims against Defendant. (Mot. to Sanction at 4-5.)

4

I.

5
6

MOTION TO DISMISS
The Court’s resolution of Defendant’s Motion to Dismiss begins and ends with the

first basis Defendant raises: the Court’s lack of personal jurisdiction over Defendant.

7

A.

8

A federal court must have jurisdiction over the parties to adjudicate a matter. Ins.

9

Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701 (1982). The party

10

invoking the jurisdiction of the federal court has the burden of establishing that personal

11

jurisdiction exists. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)

12

(citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 182-83 (1936)); Data

13

Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977). Prior to trial,

14

the defendant may move to dismiss the complaint for lack of personal jurisdiction. Data

15

Disc, Inc. 557 F.2d at 1285; Fed. R. Civ. P. 12(b)(2). When the defendant moves to

16

dismiss for lack of personal jurisdiction, the plaintiff is “‘obligated to come forward with

17

facts, by affidavit or otherwise, supporting personal jurisdiction.’” Scott v. Breeland, 792

18

F.2d 925, 927 (9th Cir. 1986) (quoting Amba Mktg. Sys., Inc. v. Jobar Int’l, Inc., 551 F.2d

19

784, 787 (9th Cir. 1977)).

Legal Standard

20

To establish jurisdiction over the defendant, the plaintiff must show that (1) the

21

state’s long-arm statute confers personal jurisdiction over the defendant, and (2) the

22

exercise of jurisdiction comports with constitutional principles of due process. Rio

23

Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002); Omeluk v.

24

Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 269 (9th Cir. 1995). Under Arizona’s long-

25

arm statute, the exercise of personal jurisdiction is allowed to the same extent as the

26

United States Constitution. See Ariz. R. Civ. P. 4.2(a); Cybersell v. Cybersell, 130 F.3d

27

414, 416 (9th Cir. 1997); A. Uberti & C. v. Leonardo, 892 P.2d 1354, 1358 (Ariz. 1995)

28

(stating that under Arizona Rule of Civil Procedure 4.2(a), “Arizona will exert personal

-2-

1

jurisdiction over a nonresident litigant to the maximum extent allowed by the federal

2

constitution”). A court in Arizona may exercise personal jurisdiction over a nonresident

3

defendant when doing so comports with constitutional principles of due process.

4

Cybersell, 130 F.3d at 416.

5

Constitutional requirements of due process require that the nonresident defendant

6

have certain “minimum contacts” with the forum state such that the suit does not offend

7

“traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington,

8

326 U.S. 310, 316 (1945); (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)); see

9

also Data Disc, 557 F.2d at 1287. A court may assert general or specific jurisdiction over

10

the nonresident defendant. Cybersell, 130 F.3d at 416. General jurisdiction1 exists where

11

the nonresident defendant’s activities within a state are “substantial” or “continuous and

12

systematic.” Data Disc, 557 F.2d at 1287. A court may exercise specific jurisdiction

13

where the defendant’s specific contacts have a substantial connection and give rise to the

14

claim in question. Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U.S. 408, 414

15

(1984).

16

Here, Plaintiff contends that the Court has specific jurisdiction over Defendant.

17

Whether a court may exercise specific jurisdiction in a given case turns on the extent of

18

the defendant’s contact with the forum and the degree to which the plaintiff’s suit is

19

related to the defendant’s contacts. Yahoo! Inc. v. La Ligue Contre Le Racisme et

20

L’Antisemitisme, 433 F.3d 1199, 1210 (9th Cir. 2006). The Ninth Circuit Court of

21

Appeals uses the following approach to determine whether a court may exercise specific

22

jurisdiction over a nonresident defendant: (1) the nonresident defendant must do some act

23

in or consummate some transaction with the forum, or perform some act by which it

24

purposefully avails itself of the privilege of conducting activities in the forum, thereby

25

invoking the benefits and protections of its laws; (2) the claim must be one which arises

26
27
28

1

The facts set forth do not support a finding that this Court has general
jurisdiction over Defendant, nor does Plaintiff so argue.
-3-

1

out of or results from the defendant’s forum-related activities; and (3) the exercise of

2

jurisdiction must be reasonable. Data Disc, 557 F.2d at 1287.

3

The plaintiff bears the burden of establishing the first two requirements of the test.

4

Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). If the

5

plaintiff establishes the first two requirements, the burden shifts to the defendant to

6

establish that the third requirement is not met. Mavrix Photo, Inc. v. Brand Techs., Inc.,

7

647 F.3d 1218, 1228 (9th Cir. 2011) (citing Burger King Corp. v. Rudzewicz, 471 U.S.

8

462, 476-78 (1985)). All three requirements must be met for the exercise of jurisdiction

9

to comport with constitutional principles of due process. Omeluk, 52 F.3d at 270.

10

B.

11

In his Response to Defendant’s Motion to Dismiss, Plaintiff argues that “because

12

Defendant is issuing monetary [sanctions] against Plaintiff . . . payable from Arizona

13

assets of the [Plaintiff], and mailing those sanctions orders to Plaintiff in Arizona, there

14

can be no dispute that Defendant knows his actions will have an impact that will be felt in

15

Arizona,” thus satisfying the first element of the three-part specific jurisdiction test.

16

(Resp. to MTD at 7.) As for the second element of the test, Plaintiff argues that

17

Defendant’s forum-related activities, from which Plaintiff alleges his claims arise,

18

include “intentionally issuing rulings and directing them to Plaintiff, an Arizona resident”

19

and “expressly seeking to use the Plaintiff’s Arizona assets.” (Resp. to MTD at 7-8.)

Analysis

20

Plaintiff cites absolutely no legal authority for the Court’s exercise of personal

21

jurisdiction over Defendant in this matter, other than simply stating the legal standard,

22

and the Court knows of none. (Resp. to MTD at 5-8.) Indeed, as Defendant points out in

23

his Motion (MTD at 6), the Supreme Court has explicitly held that “the plaintiff cannot

24

be the only link between the defendant and the forum. Rather, it is the defendant’s

25

conduct that must form the necessary connection with the forum State that is the basis for

26

its jurisdiction over him.” Walden v. Fiore, 134 S. Ct. 1115, 1119 (2014) (concluding that

27

due process did not permit a Nevada court to exercise jurisdiction over a Georgia Drug

28

Enforcement Agency officer who seized cash from airline passengers returning to

-4-

1

Nevada, even if he knew his conduct would affect any return of the funds to the Nevada-

2

bound passengers, because he had no other connections with Nevada and the passengers’

3

contacts with Nevada were insufficient to create the requisite connection between the

4

officer and Nevada). Here, Plaintiff’s connections to Arizona are of no moment in

5

Defendant’s rulings that form the basis of Plaintiff’s claims in this lawsuit. From

6

Plaintiff’s allegations, the Court can only conclude that Plaintiff would have received the

7

same rulings by Defendant regardless of the location of Plaintiff’s residence or assets. In

8

other words, the sole connection that Plaintiff has demonstrated Defendant has with

9

Arizona is through Plaintiff. This is insufficient. See id. Because Plaintiff has failed to

10

establish that Defendant has created the requisite minimum contacts with Arizona, this

11

Court’s exercise of personal jurisdiction over Defendant would not comport with

12

constitutional principles of due process. As a result, the Court must grant Defendant’s

13

Motion to Dismiss for lack of jurisdiction and will not address the numerous other

14

grounds upon which Defendant seeks dismissal of this case.

15

II.

MOTION TO SANCTION PLAINTIFF’S ATTORNEY

16

Separately, Defendant filed a Rule 11 motion for sanctions against Plaintiff’s

17

attorney, seeking attorneys’ fees and costs for having to defend against what Defendant

18

argues are frivolous claims. (Mot. to Sanction at 3-4.) Rule 11 provides that a person who

19

signs a complaint “certifies that to the best of the person’s knowledge, information, and

20

belief, formed after an inquiry reasonable under the circumstances . . . the claims,

21

defenses, and other legal contentions are warranted by existing law or by a nonfrivolous

22

argument for extending, modifying, or reversing existing law or for establishing new

23

law.” Rule 11 also provides that the court may impose an appropriate sanction against an

24

attorney who violates the Rule. In examining a complaint under Rule 11, the court must

25

determine “(1) whether the complaint is legally or factually baseless from an objective

26

perspective, and (2) if the attorney has conducted a reasonable and competent inquiry

27

before signing and filing it.” Holgate v. Baldwin, 425 F.3d 671, 676 (9th Cir. 2005)

28

(internal quotation omitted). “As a shorthand for this test, [courts] use the word

-5-

1

‘frivolous’ to denote a filing that is both baseless and made without a reasonable and

2

competent inquiry.” Id. (internal quotation omitted).

3

Defendant argues that Plaintiff’s Amended Complaint, the operative pleading, is

4

frivolous for the same reasons he sought dismissal of Plaintiff’s claims, namely, that the

5

Court lacks personal jurisdiction over Defendant, the doctrine of judicial immunity bars

6

suits against Defendant, and Plaintiff has no basis to claim his due process rights were

7

violated. (Mot. to Sanction at 5-10.) Although Defendant’s other arguments may have

8

merit, the Court did not go further than determining it lacks personal jurisdiction over

9

Defendant. And while the Court is sympathetic with Defendant that he was required to

10

expend resources to defend against Plaintiff’s claims, the Court does not find that, in this

11

instance, Plaintiff’s filing of a lawsuit in a District that lacks personal jurisdiction over

12

Defendant rises to the level of frivolousness warranting the entry of Rule 11 sanctions—

13

nor do the cases Defendant cited in his brief convince the Court otherwise.

14

IT IS THEREFORE ORDERED granting Defendant Hon. William B. Bain’s

15

Motion to Dismiss the Amended Complaint (Doc. 43). The Court dismisses Plaintiff’s

16

claims against Defendant Judge Bain with prejudice.

17
18

IT IS FURTHER ORDERED denying Defendant’s Motion to Sanction Plaintiff’s
Attorney (Doc. 49).

19

IT IS FURTHER ORDERED that, because Plaintiff voluntarily dismissed his

20

claims against Defendants State of Colorado and District Court for El Paso County

21

(Doc. 41) and the Court now dismisses Plaintiff’s claims against Defendant Judge Bain,

22

the Clerk of Court shall enter judgment accordingly and close this case.

23

Dated this 3rd day of April, 2017.

24
25
26

Honorable John J. Tuchi
United States District Judge

27
28

-6-