Haines v. Get Air Tucson Incorporated et al

Filing 117

ORDER, The Court defers ruling on Defendant Get Air LLC's Motion to Dismiss for Lack of Jurisdiction (Doc. 97 ) so that further jurisdictional discovery may be performed. The parties shall have up to and including October 10, 2016, to conduct t his jurisdictional discovery. On October 10, 2016, the parties shall each file simultaneous supplemental memoranda, not to exceed 10 pages in length (excluding attachments), addressing personal jurisdiction over Get Air, LLC in light of the jurisdictional discovery. Signed by Magistrate Judge Eric J Markovich on 6/16/16. (See attached PDF for complete information.) (KAH)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Blake Haines,

No. CV-15-00002-TUC-RM (EJM)
Plaintiff,

10
11

v.

12

ORDER

Get Air LLC, et al.,

13

Defendants.

14
15
16

Pending before the Court is Get Air, LLC’s Motion to Dismiss, which alleges that

17

that this Court lacks personal jurisdiction because Get Air, LLC has not engaged in any

18

business in Arizona, and because there are no facts supporting general or specific

19

personal jurisdiction. (Doc. 97). Specifically, Get Air, LLC argues that the Employee

20

Handbook, upon which Plaintiff relies to establish specific personal jurisdiction, was

21

created by Amy Iverson (an independent contractor for former defendant Trampoline

22

Parks, LLC) and distributed to Get Air Tucson by Trampoline Parks, LLC. Id. at 7. In his

23

response, Plaintiff contends that he has made a prima facie showing that the defective

24

Employee Handbook used by Get Air Tucson was created and supplied by Get Air, LLC

25

and as such Get Air, LLC purposefully directed its conduct at Arizona. (Doc. 102 at 14).

26

Alternatively, Plaintiff argues that there remains a factual dispute regarding personal

27

jurisdiction which must be resolved in his favor. Id. at 16.

28

The motion has been fully briefed by the parties, and the Court heard oral

1

arguments on June 6, 2016. For the reasons stated below, the Court will defer ruling on

2

the Motion to Dismiss to allow the parties to conduct further discovery regarding whether

3

Get Air, LLC’s jurisdictional contacts with Arizona are sufficient to establish personal

4

jurisdiction in the District of Arizona.

5

I. LAW

6

“The party seeking to invoke the court’s jurisdiction bears the burden of

7

establishing that jurisdiction exists.” Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986)

8

(citing Data Disc, Inc. v. Systems Tech. Assocs., 557 F.2d 1280, 1285 (9th Cir. 1977)).

9

Analysis of whether the Court has specific jurisdiction over the nonresident defendant

10

requires a three-pronged test:

11

(1) The non-resident defendant must purposefully direct [its]
activities or consummate some transaction with the forum or
resident thereof; or perform some act by which [it]
purposefully avails [itself] 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 (3) the exercise of jurisdiction must comport with fair
play and substantial justice, i.e. it must be reasonable.

12
13
14
15
16
17
18
19
20
21
22

Schwarzenegger, 374 F.3d at 802 (quoting Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir.
1987)). 1 “The plaintiff bears the burden of satisfying the first two prongs two of the test.”
Id. (citation omitted). For tort claims, the court most often utilizes a “purposeful direction
analysis.” Id. This analysis involves evidence that the defendant’s actions outside the
forum state are directed at the forum, such as distribution in the forum state of goods
originating elsewhere. Id. at 803 (citation omitted).

23
1

24
25
26
27
28

Get Air, LLC argues that Plaintiff must show that it “purposefully directed its
activities such that Get Air, LLC purposefully availed itself of the privilege of conducting
business in Arizona.” (Doc. 106 at 2) (citing Bennett v. Pratt Reg’l Med. Ctr.Corp., CV13-00380-PHX-GMS, 2013 WL 6048916, *2 (D. Ariz. 2013) and Mavrix Photo, Inc. v.
Brand Techs., Inc., 647 F.3d 1218, 1227–1228 (9th Cir. 2011)). Defendant’s analysis
misquotes case law and incorrectly states the standard. To overcome Defendant’s motion
to dismiss, Plaintiff only needs to establish that Get Air, LLC either “direct[ed] its
activities or consummate[ed] some transaction with the forum or resident thereof; or
perform[ed] some act by which [it] purposefully avail[ed] [itself] of the privilege of
conducting activities in the forum . . .” Bennett, 2013 WL 6048916 at *2 (emphasis
added); Mavrix, 647 F.3d at 1227–28 (quoting Schwarzenegger, 374 F.3d at 802).
-2-

1

“When a defendant moves to dismiss for lack of personal jurisdiction, the plaintiff

2

is ‘obligated to come forward with facts, by affidavit or otherwise, supporting personal

3

jurisdiction.’” Id. (quoting Amba Marketing Sys., Inc. v. Jobar Int’l, Inc., 551 F.2d 784,

4

787 (9th Cir. 1977)); see also Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir.

5

2006). “If the district court decides the motion without an evidentiary hearing . . . ‘then

6

the plaintiff need only make a prima facie showing of the jurisdictional facts.’” Boschetto

7

v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008) (quoting Sher v. Johnson, 911 F.2d

8

1357, 1361 (9th Cir. 1990). “Uncontroverted allegations in the plaintiff’s complaint must

9

be taken as true” and “‘[c]onflicts between the parties over statements contained in

10

affidavits must be resolved in the plaintiff’s favor.’” Id. (quoting Schwarzenegger v. Fred

11

Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004)). However, “[t]he mere allegations

12

of a complaint, when contradicted by affidavits, are not enough to confer personal

13

jurisdiction over a nonresident defendant.” Chem Lab Products, Inc. v. Stepanek, 554

14

F.2d 371, 372 (9th Cir. 1977) (citing Taylor v. Portland Paramount Corp., 383 F.2d 634,

15

639 (9th Cir. 1967)).

16

“A court may permit discovery to aid in determining whether it has in personam

17

jurisdiction.” Data Disc, 557 F.2d at 1285 n. 1 (citing Wells Fargo & Co. v. Wells Fargo

18

Express Co., 556 F.2d 406, 430 n. 24 (9th Cir. 1977)). “‘[W]here a plaintiff’s claim of

19

personal jurisdiction appears to be both attenuated and based on bare allegations in the

20

face of specific denials made by the defendants, the Court need not permit even limited

21

discovery . . .’” Terracom v. Valley Nat. Bank, 49 F.3d 555, 562 (9th Cir. 1995) (quoting

22

Rich v. KIS Cal., Inc., 121 F.R.D. 254, 259 (M.D.N.C. 1988)). However, “[d]iscovery

23

may be appropriately granted where pertinent facts bearing on the question of jurisdiction

24

are controverted or where a more satisfactory showing of the facts is necessary.” Data

25

Disc, 557 F.2d at 1285 n. 1.

26

II. ANALYSIS

27

Get Air, LLC contends that this Court lacks personal jurisdiction under

28

Fed.R.Civ.P. 12(b)(2) because Get Air, LLC is a Utah limited liability corporation

-3-

1

company whose only business prior to February, 2016 was the operation of a trampoline

2

park (Get Air Roy) in Roy, Utah. (Doc. 97 at 6). Get Air, LLC states that “[g]enerally, it

3

has conducted no business in Arizona and, specifically, it was not involved in the design,

4

construction or operation of the Get Air Tucson trampoline park in any way.” Id. Get Air,

5

LLC further argues that the Employee Handbook Plaintiff relies on to establish specific

6

personal jurisdiction was not created by any agent of Get Air, LLC and that Get Air, LLC

7

had no knowledge or intention that the Employee Handbook was supplied to Get Air

8

Tucson. Id. at 7.

9

In its first motion to dismiss, Get Air, LLC included affidavits from Val Iverson

10

and Jacob Goodell stating that the Get Air, LLC Employee Handbook was created by Get

11

Air, LLC through its manager Jessica Bybee and used at Get Air Tucson. (Doc. 43 at 13

12

¶11 and at 40 ¶11); (Doc. 102 at 9, n. 3). Get Air, LLC stated that: “[a]lthough there is

13

evidence that the operators of the Get Air Tucson trampoline park adopted and used Get

14

Air Roy’s employee manual as the Get Air Tucson employee manual, there is no

15

evidence that any member of Get Air, LLC knew or intended Get Air Tucson would use

16

its employee manual as Get Air Tucson’s employee manual.” (Doc. 43 at 5).

17

In its present Motion to Dismiss, Get Air, LLC argues that it did not create the

18

Employee Handbook upon which Plaintiff relies to establish specific jurisdiction. (Doc.

19

97 at 7). In Val Iverson’s new affidavit, he states that “[d]uring [Jessica Bybee’s]

20

employment with Get Air, LLC at Get Air Roy, Ms. Bybee’s responsibilities . . . would

21

have included use of the Get Air, LLC Employee Handbook [allegedly created by Amy

22

Iverson].” (Doc. 97 at 13 ¶16). Jacob Goodell’s most recent affidavit states that “[i]n her

23

capacity as manager of Get Air Roy, Jessica Bybee prepared the original Get Air Roy

24

employee handbook and used the Get Air, LLC Employee Handbook.” (Doc. 97 at 21

25

¶14). 2

26

Get Air, LLC has also produced an affidavit from Amy Iverson, who claims she

27

was an independent contractor for Trampoline Parks, LLC and served as its Director of

28
2

See infra note 4.
-4-

1

Human Resources from autumn 2012–autumn 2013. (Doc. 97–1, at 2 ¶3). Ms. Iverson

2

states that in her capacity as Director of Human Resources for Trampoline Parks she

3

“developed a generic Employee Handbook that could be used at any trampoline park that

4

was operated by a Get Air business entity.” Id. at ¶7. The affidavit further states:

5

This version of the Get Air, LLC Handbook [as opposed to
the version used at Get Air Roy] was prepared as a part of my
work for Trampoline Parks and, although it is based upon the
Get Air Roy employee handbook that was first prepared by
the manager [Jessica Bybee] of Get Air Roy, it is not the
original Get Air Roy employee handbook.

6
7
8
9

Id. at ¶8. Ms. Iverson states that this new, generic Employee Handbook was provided to

10

personnel at Get Air Tucson “as part of Trampoline Parks’ support work.” Id. at ¶9. Get

11

Air, LLC contends that even though the Employee Handbook is named the “Get Air,

12

LLC Employee Handbook,” it was in fact created by Amy Iverson as an agent of

13

Trampoline Parks, is a revised version of the Employee Handbook based on the one

14

created by Jessica Bybee, and has no connection whatsoever to Get Air, LLC. 3

15

Because the motion to dismiss is based on written materials—Amy Iverson’s

16

affidavit—Plaintiff’s burden is to make a prima facie showing of jurisdictional facts by

17

affidavit or otherwise. Schwarzenegger, 374 F.3d at 800; Scott, 792 F.2d at 927. Plaintiff

18

argues that he has made the necessary showing because “[a]t the very least, there remains

19

a factual dispute, which must be resolved in Plaintiff’s favor.” (Doc 102 at 16). Much of

20

Plaintiff’s Opposition to Defendant Get Air, LLC’s Motion to Dismiss is dedicated to

21

identifying and explaining factual discrepancies in the affidavits of Amy Iverson, Val

22

Iverson, and Jacob Goodell. Most notably, Plaintiff explains that:

23

[T]he Get Air, LLC Employee Handbook that is attached to
Val Iverson’s original (July 22, 2015) affidavit is entitled
“Get Air, LLC Employee Handbook”, and the date on it is
May 16, 2013. This is the one both Val Iverson and Jacob

24
25
26
27
28

3

Amy Iverson also states that she prepared several PowerPoints and that the
“reference to the Employee Handbook in the PowerPoints is to another version of the
Employee Handbook and not the Get Air, LLC Handbook.” (Doc. 97–1 at 3 ¶11). If
Jessica Bybee created the Get Air Roy employee handbook (id. at ¶8) and Amy Iverson
created the Get Air, LLC handbook (id.), it would seem that there is also a third version
of the handbook—the one cited in the PowerPoints.
-5-

Goodell testified in their sworn statements was the one
created by Jessica Bybee and used in Tucson. . . . [B]oth of
the affidavits supplied by Val Iverson and Jacob Goodell
relative to the latest motion . . . still refer to the subject “Get
Air LLC Handbook” as the one attached to Val Iverson’s
original affidavit, and they still refer to that one as the one
that Get Air Tucson used as its employee handbook as of
August 2013. . . . Get Air, LLC . . . has never produced any
Employee Handbook other than the one referred to by Val
Iverson and Jacob Goodell in their original affidavits and
attached as an exhibit to the original motion to dismiss.

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

(Doc. 102 at 9). 4
Get Air, LLC argues that there is no contradiction between the affidavits included
with its first Motion to Dismiss (Doc. 43) and the affidavits attached to its current Motion
to Dismiss (Doc. 97): “Consistent with Val Iverson and Jacob Goodell, Amy Iverson
confirms that the Get Air, LLC Handbook dated 5/16/13 was based on the Get Air, LLC
(“Get Air Roy) employee handbook that was first prepared by the manager of Get Air
Roy.” (Doc. 106 at 6). Defendant further argues: “[t]he distinction in [Amy Iverson’s]
affidavit, which makes no difference here, is that she identifies the 5/16/13 Get Air, LLC
Employee Handbook as a document revised by her whereas Val Iverson and Jacob
Goodell identify it as the handbook prepared by the former Get Air Roy manager.” Id.
Contrary to Defendant’s assertion, the distinction does make a difference. If the
Handbook was prepared by former Get Air Roy 5 manager Jessica Bybee and sent to
Tucson, then there are sufficient minimum contacts for this Court to exercise jurisdiction
over Get Air, LLC. However, if Amy Iverson created a revised Employee Handbook and
sent it to Get Air Tucson without the knowledge of Get Air, LLC, then there may not be
sufficient contacts to support jurisdiction over Get Air, LLC.
In Get Air, LLC’s first motion to dismiss, there is no mention of Ms. Iverson or her

24
25
26
27
28

4

Plaintiff also notes that “Val Iverson states that Ms. Bybee’s employment with
Get Air, LLC ended in October, 2012. This date, of course, predates the date on the
Handbook [created by Amy Iverson] (May 16, 2013). Yet . . . [Jacob Goodell] states that
Ms. Bybee used the very same Get Air, LLC Employee Handbook during her
employment.” (Doc. 102 at 9 n. 3).
5

Get Air Roy trampoline park is operated by Get Air, LLC. Get Air, LLC
employed Jessica Bybee as the Manager of Get Air Roy. (Doc. 97 at 12 ¶15).
-6-

1

version 6 of the Employee Handbook. Now, for the first time, Get Air, LLC claims that

2

there are multiple versions of the Employee Handbook, though it has failed to produce a

3

copy of the second, revised version allegedly created by Amy Iverson. 7 The Court finds

4

that the introduction of Ms. Iverson’s claims in her affidavit warrant discovery to further

5

develop the factual basis of this Court’s jurisdiction over Get Air, LLC.

6

III. CONCLUSION

7

While Plaintiff has not met his burden of making a prima facie showing

8

supporting specific personal jurisdiction, he raises legitimate questions about the validity

9

and consistency of Get Air, LLC’s affidavits. The Court therefore concludes that limited

10

discovery into these jurisdictional facts, especially regarding who created the Employee

11

Handbook and who had knowledge of its distribution to Get Air Tucson, is appropriate in

12

this case. Accordingly,

13

IT IS HEREBY ORDERED as follows:

14

1. The Court defers ruling on Defendant Get Air LLC’s Motion to Dismiss for Lack

15

of Jurisdiction (Doc. 97) so that further jurisdictional discovery may be performed.

16

2. The parties shall have up to and including October 10, 2016, to conduct this
jurisdictional discovery.

17
18

3. On October 10, 2016, the parties shall each file simultaneous supplemental

19

memoranda, not to exceed ten (10) pages in length (excluding attachments),

20

addressing personal jurisdiction over Get Air, LLC in light of the jurisdictional

21

discovery.

22

...

23

...

24

...

25

...

26
27

6

28

7

Potentially version(s) of the Employee Handbook. See supra note 3.

Defendant has also failed to produce the alleged third version Amy Iverson’s
PowerPoints cite to. See supra note 3.
-7-

1

Dated this 16th day of June, 2016.

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-8-