Haines v. Get Air Tucson Incorporated et al

Filing 158

REPORT AND RECOMMENDATION: The Magistrate Judge RECOMMENDS that the District Court enter an order DENYING Get Air, LLC's Motion to Dismiss. (Doc. 97 ). Any party may serve and file written objections within fourteen days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen days after being served with a copy thereof. No reply to any response shall be filed. If objections are not timely filed, then the parties' rights to de novo review by the District Court may be deemed waived. Signed by Magistrate Judge Eric J Markovich on 2/13/2017. (MFR)

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

REPORT AND
RECOMMENDATION

Get Air LLC, et al.,

13

Defendants.

14
15

This personal injury action involves a dispute between the Plaintiff, Blake Haines,

16

and the Defendant companies: Get Air, LLC, Quality Foam & Fiber Products, Inc., and

17

Pacific Urethanes, LLC. Haines was injured while performing a flip at Get Air Tucson,

18

an indoor trampoline park, and is now a quadriplegic. Haines alleges Defendant Get Air,

19

LLC produced a defective Employee Handbook (“EH”) used by Get Air Tucson. Haines

20

further alleges that Defendant Pacific Urethanes, LLC manufactured defective foam that

21

Defendant Quality Foam & Fiber Products, Inc. defectively cut into blocks, which were

22

used at Get Air Tucson. Haines’ claims against the Defendant companies are based on

23

negligence, products liability, and implied warranties.

24

Pending before the Court is Defendant Get Air, LLC’s Motion to Dismiss. (Doc.

25

97). Get Air, LLC alleges that this Court lacks personal jurisdiction over it because Get

26

Air, LLC has not engaged in any business in Arizona and because there are no facts

27

supporting general or specific personal jurisdiction over it. Plaintiff contends that he has

28

made a prima facie showing that the defective EH used by Get Air Tucson was created

1

and supplied by Get Air, LLC and therefore Get Air, LLC purposefully directed its

2

conduct at Arizona. (Doc. 102 at 14). Alternatively, Plaintiff argues that there remains a

3

factual dispute regarding personal jurisdiction which must be resolved in his favor. Id. at

4

16.

5
6

Pursuant to the Rules of Practice of this Court, this matter was referred to the
undersigned for a Report and Recommendation. (Doc. 25).

7

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

8

arguments on June 6, 2016. The Court then allowed the parties additional time to conduct

9

jurisdictional discovery, and the parties submitted supplemental briefs on January 17,

10

2017. (Docs. 154, 155). For the reasons stated below, the Magistrate Judge recommends

11

that the District Court enter an ordering denying Get Air, LLC’s Motion to Dismiss.

12

I. FACTUAL AND PROCEDURAL BACKGROUND

13

On September 8, 2013 Haines was at the Get Air Tucson indoor trampoline park

14

and performed a move where he flipped multiple times off of a platform and into a foam

15

pit. (Doc. 12 at 9). Haines “suffered catastrophic injuries from the maneuver, including

16

fractured cervical vertebrae resulting in paralysis.” Id. Following this incident, Haines

17

filed suit in Pima County Superior Court on September 5, 2014 against the following

18

defendants: Get Air Tucson, Inc.; Get Air Tucson Trampolines, LLC; Get Air

19

Management, Inc.; Get Air, LLC; Trampoline Parks, LLC; Patti Goodell; Jacob Goodell;

20

Kiersten Goodell; Scott Goodell; Alan McEwan Jr.; Val Iverson, individually and as

21

owner or operator of Trampoline Parks, LLC; Jane and/or John Does #s 1-20; ABC

22

Corporations 1-10; XYZ Partnerships 1-10; and ABC Limited Liability Corporations

23

(LLCs) 1-10. (Doc. 6 Ex. 1). Haines alleged claims for negligence, negligent design,

24

negligence in safety standards, negligent supervision, negligent hiring and training of

25

personnel, piercing the corporate veil, and punitive damages. Id.

26

On January 5, 2015, Defendant Get Air Tucson Trampolines, LLC removed the

27

case to this Court, alleging all parties were diverse and the amount in controversy

28

exceeded $75,000.00. (Doc. 1 at 1–2). Get Air Tucson Trampolines, LLC stated its

-2-

1

removal was timely because it was served on December 6, 2014 and 28 U.S.C. § 1446(b)

2

requires removal within 30 days of service. Id. at 2–3. Get Air Tucson Trampolines, LLC

3

did not indicate whether any of the other defendants joined or consented to the removal.

4

On January 13, 2015, Haines filed a Notice of Filing Amended Pleading Pursuant

5

to LRCiv 15.1(b), averring that no defendant had filed an answer to his original

6

Complaint. (Doc. 8). Haines’ First Amended Complaint (“FAC”) named Alicia Durfee

7

and Scott Hansen as additional defendants, and alleged Durfee was a manager or

8

supervisor at Get Air Tucson, and Hansen was an employee who was acting as a de facto

9

manager at the time of Haines’ injury. (Doc. 12 at 5–6).

10

On January 23, 2015, Haines filed a Motion to Remand to State Court. (Doc. 17).

11

Haines alleged two arguments in his motion: One, the federal court lacked subject matter

12

jurisdiction because there was not complete diversity among the parties, and two,

13

removal was procedurally improper because the removing party did not establish

14

unanimity among all served defendants for removal. Id. at 1–2. Get Air Tucson

15

Trampolines, LLC and the Goodell, Durfee, and Hansen defendants counter argued that

16

Haines’ addition of Hansen and Durfee as parties was a “thinly veiled attempt to avoid

17

federal jurisdiction.” (Doc. 19 at 1).

18

Following oral arguments on the Motion to Remand, the Court granted the Motion

19

on April 15, 2015 and remanded this matter back to Pima County Superior Court. (Doc.

20

31). The Court concluded that the case was improperly removed to federal court because

21

all properly served defendants had failed to join or consent to the removal, and because

22

Haines properly added Hansen and Durfee as defendants in his FAC, which destroyed the

23

Court’s diversity jurisdiction.

24

Following remand, the Plaintiff and several defendants entered into a settlement

25

agreement. The Superior Court then dismissed the defendants who were parties to the

26

settlement agreement, leaving two remaining defendants: Get Air, LLC and Quality

27

Foam & Fiber Products, Inc. (Doc. 32 Ex. 3).

28

On June 12, 2015 Defendant Get Air, LLC removed the case to this Court,

-3-

1

alleging that all parties are diverse due to the Superior Court’s dismissal of the non-

2

diverse defendants, and that the amount in controversy exceeds $75,000.00. (Doc. 32 at

3

1–2). Defendant Quality Foam & Fiber Products, Inc. filed a notice consenting to and

4

joining in the notice of removal. (Doc. 35). On July 2, 2015, the Court issued an order

5

directing the Clerk to reopen the case and to recognize Plaintiff’s Second Amended

6

Complaint (“SAC”) (filed in Superior Court) as the operative complaint in this matter.

7

(Doc. 39).

8

On July 30, 2015 Defendant Get Air, LLC filed a Motion to Dismiss for lack of

9

personal jurisdiction and failure to state a cause of action pursuant to Fed. R. Civ. P. 8

10

and Rule 12(b). (Doc. 43). On August 25, 2015 Plaintiff filed a Motion for Leave to

11

Amend Complaint to add and clarify allegations specific to Defendant Get Air, LLC, and

12

to add Pacific Urethanes, LLC as a products liability defendant. (Doc. 45). On February

13

8, 2016 the District Court entered an Order adopting the undersigned’s Report and

14

Recommendation, granting Plaintiff’s Motion to Amend and denying Get Air, LLC’s

15

Motion to Dismiss as moot. (Doc. 83).

16

On February 8, 2016 Plaintiff filed his Third Amended Complaint (“TAC”), which

17

names Pacific Urethanes, LLC as an additional products liability defendant. (Doc. 84).

18

The TAC also alleges that Get Air, LLC developed defective safety rules and supplied

19

them to Get Air Tucson.

20

On March 1, 2016, Defendant Get Air, LLC filed a Motion to Dismiss for lack of

21

personal jurisdiction, arguing that it has not engaged in any business in Arizona, and that

22

there are no facts supporting general or specific personal jurisdiction over it. (Doc. 97). 1

23

Get Air, LLC specifically argues that the EH used by Get Air Tucson was created by

24

Amy Iverson, an independent contractor for Trampoline Parks, LLC, and that Get Air,

25

LLC had no knowledge or intent that the EH would be distributed to or utilized by Get

26

Air Tucson. Plaintiff contends that Amy Iverson received the assignment to review and

27
1

28

Defendant Pacific Urethanes, LLC also filed a Motion to Dismiss for lack of
jurisdiction (Doc. 103), which will be addressed in a separate Report and
Recommendation.
-4-

1

edit the EH from Get Air, LLC, and that the EH was knowingly provided by Get Air,

2

LLC to Jacob Goodell to take to Tucson. (Doc. 154 at 5).

3

II. STANDARD OF REVIEW

4

To establish a prima facie case for personal jurisdiction, the plaintiff must show

5

that: (1) the forum state’s long-arm statute confers jurisdiction over the nonresident

6

defendant; and (2) the exercise of jurisdiction comports with principles of due process.

7

Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 269 (9th Cir. 1995). The

8

Arizona long-arm jurisdictional statute provides that this Court “may exercise personal

9

jurisdiction over parties, whether found within or outside this state, to the maximum

10

extent permitted by the Constitution of this state and the Constitution of the United

11

States.” Ariz. R. Civ. P. 4.2(a). “Because the [state] Constitution imposes no greater

12

restriction than does the U.S. Constitution, federal courts in [Arizona] may exercise

13

jurisdiction to the fullest extent permitted by due process.” Scott v. Breeland, 792 F.2d

14

925, 927 (9th Cir. 1986) (citing Data Disc, Inc. v. Sys. Tech. Assocs., 557 F.2d 1280,

15

1285 (9th Cir. 1997)). Thus, the due process analysis under Arizona state law and federal

16

law is the same.

17

Due process requires that a nonresident defendant have sufficient “minimum

18

contacts” with the forum state such that the exercise of jurisdiction “does not offend

19

traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326

20

U.S. 310, 316 (1945) (internal quotations and citation omitted). “The party seeking to

21

invoke the court’s jurisdiction bears the burden of establishing that jurisdiction exists.”

22

Scott, 792 F.2d at 927 (citing Data Disc, Inc., 557 F.2d at 1285). Analysis of whether the

23

Court has specific jurisdiction 2 over the nonresident defendant requires a three-pronged

24

test:

25

(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]

26
27
2

28

There are two types of personal jurisdiction, general and specific. Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 473 n.5 (1985). Only specific jurisdiction is at issue
here. See Doc. 102 at 3.
-5-

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.

1
2
3
4
5

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

6

Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987)). “The plaintiff bears the burden of

7

satisfying the first two prongs two of the test.” Id. (citation omitted). “‘Purposeful

8

availment’ and ‘purposeful direction’ are distinct tests, the former to be applied to

9

contract claims and the latter to tort claims.” Planning Grp. of Scottsdale, L.L.C. v. Lake

10

Mathews Mineral Properties, Ltd., 226 Ariz. 262, 266 (2011). “For tort claims, the court

11

considers whether the defendant ‘purposefully direct[ed] his activities or consummate[d]

12

some transaction with the forum or resident thereof.’” Id. at 267 (quoting

13

Schwarzenegger, 374 F.3d at 802).

14

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

15

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

16

jurisdiction.’” Scott, 792 F.2d at 927 (quoting Amba Marketing Sys., Inc. v. Jobar Int’l,

17

Inc., 551 F.2d 784, 787 (9th Cir. 1977)); see also Pebble Beach Co. v. Caddy, 453 F.3d

18

1151, 1154 (9th Cir. 2006). “If the district court decides the motion without an

19

evidentiary hearing . . . ‘then the plaintiff need only make a prima facie showing of the

20

jurisdictional facts.’” Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008) (quoting

21

Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990)). “Uncontroverted allegations in

22

the plaintiff’s complaint must be taken as true” and “‘[c]onflicts between the parties over

23

statements contained in affidavits must be resolved in the plaintiff’s favor.’” Id. (quoting

24

Schwarzenegger, 374 F.3d at 800). However, “[t]he mere allegations of a complaint,

25

when contradicted by affidavits, are not enough to confer personal jurisdiction over a

26

nonresident defendant.” Chem Lab Products, Inc. v. Stepanek, 554 F.2d 371, 372 (9th

27

Cir. 1977) (citing Taylor v. Portland Paramount Corp., 383 F.2d 634, 639 (9th Cir.

28

1967)).

-6-

1

III.

GET AIR, LLC’S MOTION TO DISMISS

2

To overcome Defendant Get Air, LLC’s motion to dismiss, Plaintiff must show

3

that Get Air, LLC “purposefully direct[ed] [its] activities or consummate[d] some

4

transaction with the forum or resident thereof.” Planning Grp. of Scottsdale, L.L.C., 226

5

Ariz. at 266 (quoting Schwarzenegger, 374 F.3d at 802).

6

Get Air, LLC contends that this Court lacks personal jurisdiction over it because

7

Get Air, LLC is a Utah limited liability corporation company whose only business prior

8

to February 2016 was the operation of a trampoline park (Get Air Roy) in Roy, Utah.

9

(Doc. 97 at 6). Get Air, LLC states that “[g]enerally, it has conducted no business in

10

Arizona and, specifically, it was not involved in the design, construction or operation of

11

the Get Air Tucson trampoline park in any way.” Id. Get Air, LLC further argues that

12

“there is no evidence that any member, manager, or employee of Get Air, LLC (i) drafted

13

or created the Get Air, LLC Handbook with the knowledge or intent that it was to ‘apply

14

to trampoline park customers, including Get Air Tucson customers,’ or (ii) ‘supplied’ the

15

Get Air, LLC Handbook to Get Air Tucson.” Id. at 7. In its supplemental memorandum,

16

Get Air, LLC states that the jurisdictional discovery confirms that there is no evidence

17

that Get Air, LLC conducted business in Arizona sufficient for this Court to exercise

18

personal jurisdiction over it:

19
20
21
22
23
24
25
26
27
28

[T]he additional discovery confirms (i) Amy Iverson,
working as the Human Resources Director for Trampoline
Parks, LLC prepared all versions of the Get Air, LLC
Employee Handbook that have been identified in this case,
(ii) those versions of the employee handbook were prepared
as part of her work, on behalf of Trampoline Parks, LLC to
prepare a generic handbook for Get Air trampoline parks, (iii)
Jake Goodell, acting as a member of Get Air Tucson
Trampoline, LLC, took copies of the Get Air, LLC Employee
Handbook to Tucson in August 2013, (iv) Jessica Bybee’s
role in preparing an employee handbook for Get Air Roy park
owned by Get Air, LLC ended in August 2012, before her
employment ended in October 2013, (v) no one who owned
or managed Get Air, LLC in 2013 was aware that Jake
Goodell took a copy of the Get Air, LLC Employee
Handbook from the Roy, Utah Park to be used in Tucson.
(Doc. 155 at 2–3).

-7-

1

Plaintiff argues that there are sufficient minimum contacts in this case to support

2

personal jurisdiction based on Get Air, LLC allegedly disseminating the EH to Get Air

3

Tucson. (Doc. 102 at 4). Specifically, Plaintiff notes that in its original motion to dismiss,

4

Get Air, LLC included affidavits from Val Iverson and Jacob Goodell stating that the EH

5

was created by Jessica Bybee as a manager for Get Air, LLC, and that Get Air Tucson

6

used the EH to provide standard employment information but not for safety procedures.

7

(Doc. 102 at 7–8). Then, Plaintiff notes, in its second motion to dismiss, Get Air, LLC

8

changed its argument to claim that the EH used by Get Air Tucson was actually created

9

by Amy Iverson on behalf of Trampoline Parks, LLC, not Get Air, LLC. (Doc. 102 at 2–

10

3). In Plaintiff’s supplemental memorandum, he contends that the EH used by Get Air

11

Tucson was first developed by Jessica Bybee and then reviewed and edited by Amy

12

Iverson, an independent contractor for Trampoline Parks, LLC, at the direction of Joan

13

Iverson, a member of Get Air, LLC, and that Amy admitted that the work she did was for

14

Get Air, LLC, not Trampoline Parks, LLC. (Doc. 154 at 5). Plaintiff also questions why,

15

if the EH was allegedly produced by Amy on behalf of Trampoline Parks, LLC, the EH is

16

called the “Get Air, LLC Employee Handbook” and refers to Get Air, LLC throughout

17

the document. (Doc. 102 at 12). Plaintiff further notes that Jacob Goodell testified that

18

the EH he brought to Tucson came directly from Get Air, LLC. (Doc. 154 at 6). Plaintiff

19

contends that it does not matter who created the EH used by Get Air Tucson, or what

20

version of the EH Get Air Tucson used, because “either way, it came directly from, and

21

was a product of, Get Air, LLC.” (Doc. 154 at 9).

22

A. Affidavits

23

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

24

and Jacob Goodell stating that the Get Air, LLC EH was created by Jessica Bybee in her

25

capacity as manager and on behalf of Get Air, LLC. (Doc. 43 at 13 ¶ 11; 40 ¶ 11). Jacob

26

Goodell further stated that Get Air Tucson used the Get Air, LLC EH to provide standard

27

employment information to its employees, but did not use it as a way to train its

28

employees on safety procedures. (Doc. 43 at 40 ¶¶ 14, 16). Get Air, LLC stated that

-8-

1

“[a]lthough there is evidence that the operators of the Get Air Tucson trampoline park

2

adopted and used Get Air Roy’s employee manual as the Get Air Tucson employee

3

manual, there is no evidence that any member of Get Air, LLC knew or intended Get Air

4

Tucson would use its employee manual as Get Air Tucson’s employee manual.” (Doc. 43

5

at 5). Thus, the essence of Get Air, LLC’s first motion to dismiss was that while Get Air,

6

LLC created the EH, it did not know that Get Air Tucson was going to use it, and that

7

even so, Get Air Tucson did not use the EH to train its employees on safety procedures.

8

In its second motion to dismiss, Get Air, LLC presents a new argument: the EH

9

used by Get Air Tucson was not created by Get Air, LLC, but by Amy Iverson, a

10

contractor for Trampoline Parks, LLC, and the EH was provided to Get Air Tucson by

11

Trampoline Parks, LLC. (Doc. 97 at 7). Get Air, LLC further states that Amy Iverson

12

prepared the EH using a version of the EH previously prepared by the manager of Get Air

13

Roy, Jessica Bybee. 3 Id. The second motion to dismiss includes a new affidavit from Val

14

Iverson, wherein he states that “[n]either my wife nor I, as the sole members of Get Air,

15

LLC, directed or authorized any manager, employee or agent of Get Air Roy to provide a

16

copy of the Get Air, LLC Handbook to any member of Get Air Tucson, LLC or any

17

manager or employee of Get Air Tucson.” (Doc. 97 at 13 ¶ 17). Val Iverson states that he

18

had no idea Get Air Tucson was using the EH until this lawsuit was filed, and that Get

19

Air, LLC had no role in Get Air Tucson obtaining and using the EH. Id. at ¶¶ 19–22.

20

Jacob Goodell’s new affidavit states that “[i]n her capacity as manager of Get Air Roy,

21

Jessica Bybee prepared the original Get Air Roy employee handbook and used the Get

22

Air, LLC Employee Handbook,” but notes that Jessica’s employment with Get Air, LLC

23

at Get Air Roy ended before Get Air Tucson hired any employees or managers. (Doc. 97

24

at 21 ¶¶ 14–15). Jacob further states that Val Iverson was not involved in Get Air Tucson

25
26
27
28

3

Val Iverson states that “[d]uring her employment with Get Air, LLC at Get Air
Roy, Ms. Bybee’s responsibilities and authority would have included use of the Get Air,
LLC Employee Handbook . . . [but that she] never had the authority to direct the
managers or employees of any other Get Air entity or Get Air facility to use or follow the
Get Air, LLC Handbook.” (Doc. 97 at 13 ¶ 16). Jacob Goodell makes the same statement
in his affidavit. Id. at 21–22 ¶ 14.
-9-

1

obtaining or using the EH, and that any decision to use the EH was made by management

2

of Get Air Tucson. Id. at ¶¶ 16–18.

3

Get Air, LLC’s second motion to dismiss also includes an affidavit from Amy

4

Iverson, who states that she worked as an independent contractor for Trampoline Parks,

5

LLC and served as its Director of Human Resources from autumn 2012–autumn 2013.

6

(Doc. 97–1 at 2 ¶ 3). In her capacity as Director of Human Resources for Trampoline

7

Parks, she “develop[d] a generic Employee Handbook that could be used at any

8

trampoline park that was operated by a Get Air business entity, including Get Air

9

Tucson.” Id. at ¶ 7. Amy explained that:

10

This version of the Get Air, LLC Handbook [dated 5/16/13]
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 of Get Air
Roy [Jessica Bybee], it is not the original Get Air Roy
employee handbook.

11
12
13
14

Id. at ¶ 8. Amy further states that this new, generic EH was provided to personnel at Get

15

Air Tucson “as part of Trampoline Parks’ support work.” Id. at ¶ 9. Amy also prepared

16

PowerPoint slides in 2013 on employee and management training that Trampoline Parks,

17

LLC provided to Get Air Tucson, and states that the PowerPoints refer to yet another

18

version of the EH and not the Get Air, LLC EH. 4 Id. at ¶¶ 10–11.

19
20
21

B. Deposition Testimony
Following the Court’s order allowing additional jurisdictional discovery in this
matter, the parties submitted supplemental briefs with transcripts of the depositions.

22

Val Iverson testified that during the time period of Blake’s injury, Trampoline

23

Parks, LLC’s business was manufacturing trampoline parks, and Get Air, LLC’s business

24

was a trampoline park in Roy, Utah. (Doc. 154 Ex. 2 at 18:7–19:7). In 2013, his wife,

25

Joan Iverson, was helping him run Get Air, LLC; the “Get Air leadership team” refers to

26

himself and his wife; Joan and Val Iverson were the only two members of Get Air, LLC

27
4

28

As support for this argument, Amy notes that the PowerPoints refer to safety
rules being on page 12 of the EH, while the safety rules in the Get Air, LLC EH dated
5/16/13 are on page 13.
- 10 -

1

in 2013. Id. at 26:6–8; 31:8–14; 54: 21–23. Joan was never an employee of Trampoline

2

Parks, LLC. Id. at 31:18–21. He does not remember himself or his wife giving Amy

3

Iverson the assignment to review the EH. Id. at 21:1–11. Amy was an independent

4

contractor and drafted items that he needed. Id. at 34:4–9. He did not know that Amy

5

drafted an EH based on the one Jessica created; he does not remember discussing an EH

6

with Jessica or giving her a list of safety rules to put in the EH; he does not remember

7

meeting with Amy, Joan, and Jessica about the EH. Id. at 51:15–23; 53:1–17; 65:4–8;

8

66:2–5; 93:1–16. Val does not know of an EH that just says “Get Air” and not “Get Air,

9

LLC;” when they first opened, they had a 2–3 page pamphlet but he does not know if Get

10

Air, LLC was on it. Id. at 46:18–22; 61:1–8. He does not know if there is a Trampoline

11

Parks, LLC EH. Id. at 61:21–23. Val did not learn that Get Air Tucson was using the EH

12

until this lawsuit was filed. Id. at 47:3–15; 48:23–49:3. The first time he saw any version

13

of the EH was when attorney David Bell showed him a few days prior to the deposition.

14

Id. at 72:1–9. He does not recall seeing one when he signed his affidavits. Id. at 72:10–

15

13. Val stated that he did not know anything about the operations of Get Air Tucson; his

16

“total involvement” was building and investing in the park. Id. at 43:10–13.

17

Jessica Bybee 5 testified that the version of the EH that Get Air Tucson had was not

18

the version she created; she never finished a version of the EH. (Doc. 154 Ex. 4 at 11:25–

19

12:2). Val Iverson gave her the assignment to work on the EH. Id. at 14:12–14; 15:21–23.

20

Val went to a conference with other trampoline makers and they had rules they wanted to

21

incorporate for the trampoline parks, so Val asked her to make sure the EH included

22

those rules. Id. at 15:25–16:6. Val gave her a written list of safety rules to use. Id. at

23

17:24–18:2. She created an EH but did not finish it; it was still being evaluated by Val

24

and then she gave it to Amy Iverson to finish. Id. at 16:22–17:2; 21:17–20. Her

25

understanding was that Amy “was going to write the handbook professionally.” Id. at

26

17:8–9. Jessica had a meeting with Amy, Val, and Joan where they talked about the EH

27
28

5

Jessica was employed by Get Air, LLC as the manager of Get Air Roy. (Doc.
154 Ex. 4 at 12–13).
- 11 -

1

and Jessica gave it to Amy. Id. at 30:12–17. Joan Iverson did not have any involvement

2

in Jessica’s work on the EH. Id. at 21:8–10. The version Jessica created had safety rules

3

in it; the rules were the rules that were in the safety video that employees were supposed

4

to follow. Id. at 17:14–20. When shown the EH dated 5/16/13, Jessica stated that the first

5

half looked familiar to her, but the second half, starting on page 13, was not what she

6

started making; a lot had been added or taken away. Id. at 19:7–11. Some but not all of

7

the safety rules on page 13 looked familiar to her as the list that Val gave her. Id. at

8

19:19–22. Jessica put the title “Get Air, LLC Employee Handbook” on the version she

9

created; no one discussed the accuracy of the title with her; she made it for the Roy park.

10

Id. at 24:19–25. Jessica does not recall seeing a version of the EH without “Get Air,

11

LLC” on it. Id. at 25:9–11. Amy took the EH and expanded it to all of the parks. Id. at

12

25:2–5. Jessica does not recall being told that the EH she developed was going to be used

13

at other Get Air parks, but her understanding was that it would be once Amy took over.

14

Id. at 32:15–25.

15

Amy Iverson testified that she did work for Get Air, LLC during the time period of

16

autumn 2012–autumn 2013; when Val and Joan Iverson asked her to help them, she did.

17

(Doc. 154 Ex. 1 at 22:19–23:5; 27:23). They asked her to read their EH and she revised it

18

to use in other parts of the business. Id. at 23–24; 28:1–3. The EH dated 5/16/13 was not

19

what she got from Val and Joan Iverson to review, it was a different version. Id. at 29:19–

20

25. The version she was given to review was a completed version, drafted by Jessica

21

Bybee, and Amy got it in late 2012. Id. at 30:7–11; 31:1–3. She does not know if the

22

version she got from Jessica had safety rules in it. Id. at 69:21–23. Amy does not know

23

what version of the EH was provided to Get Air Tucson. Id. at 36:5–9; 48:20–23. She has

24

no knowledge of how the EH got to Tucson, but the version Get Air Tucson had would

25

have been created by her. Id. at 43:22–44:3. She has a version of the EH where the safety

26

rules are on page 12 on her computer; she was not asked to produce it for this lawsuit. Id.

27

at 52. 6 The EH dated 2/7/13 was created by Amy; this is the one she refers to as the

28
6

The EH dated 5/16/13 has safety rules on page 13, and the California Edition EH
- 12 -

1

generic version and was produced by her to be used at any of the Get Air facilities. Id. at

2

55:11–17. There are additional versions of the EH, she does not know how many; when a

3

new park opened, it would get the updated version of the EH. Id. at 56:4–14; 57:17–21.

4

Amy disagreed that if the EH ended up at Get Air Tucson, it would have come from Get

5

Air, LLC. Id. at 58:23–59:2. She stated that the EH came from Trampoline Parks, LLC

6

and that it was an error on her part to put the name “Get Air, LLC” on the EH. Id. at

7

59:3–7; 60:2–4. If she corrected the EH, it would just say “Get Air.” Id. at 60:9–17. Amy

8

explained that all of the work she did was Trampoline Parks, LLC work, but then when

9

asked about the work she did for Get Air, LLC, Amy stated: “I guess the confusion lies in

10

that, in my mind, it was all the same thing. I worked for my father-in-law [Val Iverson],

11

and he gave me some assignments and I did them.” Id. at 85:14–24. She would never

12

have said that she was an employee of Get Air, LLC, and she was paid by Trampoline

13

Parks, LLC, but she created the EH at the request of Val Iverson, and revised it over the

14

years as people requested. Id. at 86:1–14; 89:23–90:1.

15

Jacob Goodell testified that he did not know which version of the EH made its

16

way to Get Air Tucson, but he is the one who took it there. (Doc. 154 Ex. 5 at 25:19–22).

17

He walked over to Get Air Roy and asked them for the manual they were using, then he

18

had it reprinted and took it to Tucson. 7 Id. at 27:17–23. He took the EH to Get Air

19

Tucson so the employees would have an EH to go by and have rules of conduct and know

20

how to be good employees. Id. at 28:1–8. He felt it was the best thing to train his

21

employees on without having to rewrite and make his own EH. Id. at 86:22–87:2. If there

22

was a Trampoline Parks, LLC EH, he would not have taken it to Tucson because

23

Trampoline Parks, LLC employees do very different jobs because they are basically

24

construction workers, not customer service people or deck attendees. 8 Id. at 28:20–29:3.

25
26
27
28

has safety rules on page 16. At this point in the deposition, Mr. Bell provided another
version of the EH dated February 7, 2013, with the safety rules on pages 11 and 12.
7

Jacob later stated that he “went over to Get Air Roy or Get Air, LLC and
requested that they give me one.” Id. at 55:3–5.
8

The people on top of the deck at the trampoline park
- 13 -

1

Jacob stated that as best he can remember, employees at Get Air Tucson were not trained

2

on safety rules using the EH; when he was there, they did not go over the EH page by

3

page or review it with employees during training; he did the training and asked the

4

employees to take a copy of the manual when they left. Id. at 34:6–35:6. Jacob knows

5

that Val and Joan asked Amy to review the EH prepared by Jessica. Id. at 50:18–23. He

6

knew that Amy was revising the Get Air, LLC EH so that Trampoline Parks could use it

7

for future parks. Id. at 87:13–17. He does not know how much work Jessica did on the

8

EH, he does not remember if the version she prepared had safety rules in it, and he does

9

not know what changed in the version Amy prepared. Id. at 79:8–10; 80:3–14. He does

10

not know if Amy added the safety rules. Id. at 80:25–81:2. Jacob stated that Jessica could

11

not have created the EH dated 5/16/13 because her employment ended prior to that; his

12

statement in his second affidavit that Jessica prepared the version darted 5/16/13 is an

13

error. Id. at 84:16–85:9. He has never asked anyone to take the “Get Air, LLC” name off

14

the EH. Id. at 71:3–6.

15
16

Elyana Garcia, a former employee of Get Air Tucson who was working on the
date of Blake’s injury, testified that she was shown the EH during her training:

17

[T]he first thing I saw was the handbook. They had us go
through it. They flipped through it, reviewed it with us, and
then moved9 on with the process. . . . when I was doing the
training she skimmed through it, told us what was allowed,
what wasn’t. I never actually held it in my hand or seen it
with my own eyes.

18
19
20
21

(Doc. 154 Ex. 3 at 38:22–24; 39:6–9). Elyana remembered being shown the list of safety

22

rules in the EH. Id. at 39:15–40:6. When shown the EH dated 5/16/13, Elyana stated that

23

it looked familiar to her but she had not paid attention to the date of the document during

24

her training. Id. at 39:1–6. The EH was not available to her to review, it was just

25

something that the trainer skimmed through with her and checked off as she completed

26

her training. Id. at 45:1–6.

27

Scott Hansen, a former employee of Get Air Tucson, testified that he received an

28
9

Alicia Durfee, manager at Get Air Tucson.
- 14 -

1

EH when he started, around August 31, 2015. (Doc. 154 Ex. 6 at 31:3–12). He only

2

received one copy; he does not recall the date on it, but he still has the EH. 10 Id. at 31:22–

3

24; 32:4–8.

4

C. Analysis

5

Because the motion to dismiss is based on written materials, Plaintiff’s burden is

6

to make a prima facie showing of jurisdictional facts by affidavit or otherwise.

7

Schwarzenegger, 374 F.3d at 800; Scott, 792 F.2d at 927. Plaintiff argues that he has

8

made the necessary showing here because “[a]t the very least, there remains a factual

9

dispute, which must be resolved in Plaintiff’s favor.” (Doc 102 at 16). The Court agrees.

10

While Amy Iverson testified that she was only employed by Trampoline Parks, LLC, she

11

also testified that she did work for Get Air, LLC, and that Val and Joan Iverson, the sole

12

members of Get Air, LLC, gave her the assignment to work on the Get Air, LLC EH.

13

There is no testimony that Trampoline Parks, LLC asked Amy to create the Get Air, LLC

14

EH, nor would this be logical because Trampoline Parks, LLC was in the business of

15

designing and constructing trampoline parks, and as such its business would not include

16

the day to day operations of running a trampoline park. While there is testimony from

17

Amy and Jessica that, in retrospect, the EH should have been titled “Get Air EH” instead

18

of “Get Air, LLC EH,” there is no explanation as to why the name “Get Air, LLC” was

19

never removed from the EH, or why no one ever directed Amy or Jessica to change the

20

name. Further, there is testimony from Amy, Jessica, and Jacob that Amy’s role in

21

revising the EH was to make it applicable to other Get Air parks, not just the park in Roy,

22

Utah run by Get Air, LLC. This supports a finding that Get Air, LLC purposefully

23

directed its activities at Arizona by creating a generic EH with the specific intent that it

24
10

25
26
27
28

Plaintiff’s counsel, Mr. Dwyer, subpoenaed Scott for a copy of the handbook.
Scott was directed by Mr. Bell to send it to Mr. Bell’s office, and then Mr. Dwyer did not
receive it until November 22, 2016. The version produced is titled “Get Air, LLC
Employee Handbook California Edition” and is dated “Revised 9/10/13.” See Doc. 154 at
4. If this version was revised on 9/10/13, then Scott could not have received it on August
31, 2013 when he started working at Get Air Tucson. Plaintiff’s injury occurred on
September 8, 2013. Of the three versions of the EH that have been produced thus far, the
safety rules are substantially the same. (The California edition, the 2/7/13 edition, and the
5/16/13 edition).
- 15 -

1

would be used at other Get Air parks. In addition, Jacob testified that he took the EH

2

from “Get Air Roy or Get Air, LLC,” underscoring the confusion by the parties in this

3

case as to whether Get Air Roy and Get Air, LLC were separate entities or one and the

4

same. Likewise, Amy testified that she was confused about whether her work was for

5

Trampoline Parks, LLC or Get Air, LLC because “in my mind, it was all the same thing;”

6

she was given assignments by Val and did what he needed her to do.

7

Even if Val Iverson did not have personal knowledge that the EH was taken from

8

Get Air Roy/Get Air, LLC to Get Air Tucson, it is clear from the testimony before the

9

Court that Val and Joan Iverson’s intent in having Amy Iverson revise the EH was to

10

create a generic version of the EH to be used at other Get Air parks, not just Get Air Roy.

11

Thus, it is conceivable and foreseeable that the Get Air, LLC EH would make its way to

12

other parks in other states, including Get Air Tucson.

13

Furthermore, Val Iverson did have personal knowledge that the Get Air park was

14

being built in Tucson because he was an investor and developer in Get Air Tucson. At the

15

time of Blake’s injury, Val Iverson was a member of Get Air, LLC, a member of

16

Trampoline Parks, LLC, and an investor in Get Air Tucson Trampolines, LLC. (Doc. 97

17

Ex. 1; Doc. 154 Ex. 2 at 9:22–24). 11 All of these companies are closely connected to Val

18

Iverson. While Mr. Iverson is not being sued in this matter in his individual capacity, it is

19

clear from the evidence before this Court that through his ties to the various corporate

20

entities, he was specifically involved in developing and investing in Get Air Tucson, and

21

directed Amy Iverson and Jessica Bybee to prepare a generic EH that could be used at all

22

Get Air parks. This is sufficient to find that Get Air, LLC purposefully directed its

23

activities to Arizona such that this Court may exercise personal jurisdiction over it.

24

Finally, to the extent that Val Iverson claims that he does not recall any meetings

25

with Jessica or Amy where he directed them to create an EH, the Court finds that this

26

testimony is undermined by the testimony from Amy and Jessica. Even Jacob testified

27
28

11

A registered principals Utah business search dated 7/18/14 also lists Val Iverson
as a member of Get Air Tucson Trampolines, LLC. (Doc. 154 Ex. 2 at 10:14–21).
- 16 -

1

that he knew that Val and Joan asked Amy to review the EH prepared by Jessica, and that

2

Amy’s purpose in revising the EH was so that it could be used for future parks. Conflicts

3

in the testimony must be resolved in the plaintiff’s favor, and here the Court finds that the

4

weight of the testimony supports a finding that Val and Joan Iverson, the sole members of

5

Get Air, LLC, directed Amy Iverson to revise the EH drafted by Jessica Bybee and create

6

a generic Get Air, LLC EH to be used at future Get Air parks.

7

As to the last two prongs of the personal jurisdiction test, the Court finds that it is

8

clear that Plaintiff’s claims arise out of and relate to Get Air, LLC’s contacts with

9

Arizona because Plaintiff’s claims against Get Air, LLC are based on the allegedly

10

defective safety rules in the EH. The Court further finds that Get Air, LLC has had

11

sufficient minimum contacts with Arizona such that this Court’s exercise of jurisdiction

12

over it is reasonable. 12

13

III. RECOMMENDATION
Accordingly, the Magistrate Judge RECOMMENDS that the District Court enter

14
15

an order DENYING Get Air, LLC’s Motion to Dismiss. (Doc. 97).

16

Pursuant to 28 U.S.C. §636(b), any party may serve and file written objections

17

within fourteen days after being served with a copy of this Report and Recommendation.

18

A party may respond to another party’s objections within fourteen days after being served

19

with a copy thereof. Fed. R. Civ. P. 72(b). No reply to any response shall be filed. See id.

20

If objections are not timely filed, then the parties’ rights to de novo review by the District

21

Court may be deemed waived. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121

22

(9th Cir. 2003) (en banc).

23

...

24

...

25

...

26
27
28

12

At the third prong, “the burden then shifts to the defendant to ‘present a
compelling case’ that the exercise of jurisdiction would not be reasonable.”
Schwarzenegger, 374 F.3d at 802 (quoting Burger King Corp., 471 U.S. 476–78). Get
Air, LLC makes no such argument here.
- 17 -

1

Dated this 13th day of February, 2017.

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

- 18 -