Davis v. NIH Federal Credit Union et al

Filing 32

ORDER by Judge Joseph C. Spero denying 16 Motion to Dismiss for Lack of Jurisdiction (jcslc2, COURT STAFF) (Filed on 5/15/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CONNIE M. DAVIS,
Plaintiff,

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v.

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NIH FEDERAL CREDIT UNION, et al.,
Defendants.

United States District Court
Northern District of California

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ORDER DENYING DEFENDANTS'
MOTION TO DISMISS FOR LACK OF
JURISDICTION AND/OR IMPROPER
VENUE, AND IN THE ALTERNATIVE,
MOTION TO TRANSFER FOR
CONVENIENCE.
Dkt. No. 19

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Case No. 12-cv-05502-JCS

I.

INTRODUCTION
In this diversity action, Plaintiff Connie M. Davis (hereafter “Plaintiff”) accuses

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Defendants NIH Federal Credit Union and its Chief Executive Officer, Juli Anne Callis, (hereafter

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“NIHFCU,” “Callis,” and collectively, “Defendants”), of violating California Labor Code § 970

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by inducing Plaintiff to move from California to Maryland for a job which did not exist.

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Defendants bring a Motion to Dismiss (“Motion”), asserting this action must be dismissed for lack

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of personal jurisdiction and because venue is improper in the Northern District of California.

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Defendants also move for discretionary transfer of this case to Maryland. The Court finds this

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Motion suitable for decision without oral argument pursuant to Local Rule 7-1(b), and vacates the

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motion hearing scheduled for May 17, 2013, at 1:30p.m. The case management conference will

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still occur at that time. For the reasons explained below, Defendants’ Motion is DENIED.1

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II.

BACKGROUND

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A.

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Plaintiff met Defendant Callis in December of 2008 when a recruiter arranged for Plaintiff

Factual Allegations

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636(c).

The parties have consented to the undersigned magistrate judge pursuant to 28 U.S.C. §

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to interview with Callis for a senior management position at Keypoint Credit Union (“Keypoint”)

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in Santa Clara, California. Complaint (“Compl.”) ¶ 9. According to the recruiter, Callis was so

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impressed with Plaintiff that she cancelled any further interviews and offered Plaintiff the job. Id.

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Plaintiff accepted the position and started working for Callis in January of 2009. Id. Shortly after,

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however, Callis resigned from Keypoint to accept the position of CEO at NIHFCU in Maryland.

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Id.

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Over the next two years, Plaintiff and Callis remained in touch, primarily via email.

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Compl. ¶ 10. In approximately July of 2010, Callis asked Plaintiff to go to Maryland to help

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install a new program being opened at NIHFCU. Id. Plaintiff had successfully installed the
program at Keypoint and Callis was impressed with her work on that project. Id. Plaintiff flew to

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United States District Court
Northern District of California

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Maryland and worked with NIHFCU for a week to implement the program, and apparently

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received positive feedback from Callis’s staff about her performance on the project. Id.

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A few months later, in late 2010, Callis began calling Plaintiff and aggressively recruiting

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her to work for her in Maryland. Compl. ¶ 11. Callis represented that she wanted to employ

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Plaintiff principally to build a new Cash Management Division in the credit union in order for the

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credit union to move “up market” by offering banking services to small and mid-sized businesses.

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Id. Callis also represented that her operations division needed substantial help with automation

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and process improvement, and that she did not know anyone who could fulfill these roles but

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Plaintiff. Id.

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At the time, Plaintiff was employed at the University of California. Compl. ¶ 12. Plaintiff

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had lived in the San Francisco Bay Area for over 25 years and her professional network was here.

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Id. Plaintiff owned a home in Concord, California, where her two adult sons also lived. Id.

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Plaintiff also had strong ties to her religious community. Id. Plaintiff was not seeking other

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employment, but agreed to fly to Maryland for an interview. Id. She met with Callis and

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approximately five of Callis’s senior managers. Id.

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Shortly after Plaintiff returned to California, Callis called Plaintiff and informed her that

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all of the senior managers wanted her to join the NIHFCU staff, and offered her the position of

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Vice President, Cash Management and Account Operations. Compl. ¶ 13. Callis offered a
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starting salary of $150,000 and an implied bonus of 20%, which was approximately $50,000 more

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than Plaintiff was making at the University of California. Id. Callis assured Plaintiff that the

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position would be long-term and that Plaintiff would be working directly for Callis. The offer

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letter sent by NIHFCU to Plaintiff reads, in relevant part:

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February 7, 2011

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Connie Davis
1722 Belding Court
Concord, CA 94521

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Dear Connie,

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We are pleased to confirm our offer to you for the Vice President
Cash Management and Account Operations at a semi-monthly rate
of $6,250.00…. All bonus plans and other benefits are approved
annually by the NIH Federal Credit Union Board of Directors. This
position encompasses case management and account operations, and
emerging technologies. You will accrue vacation leave at the rate of
6.66 hours per semi-monthly pay period (which is equivalent to 20
days vacation per year). Your start date will be on or before
February 28, 2011. Juli Anne Callis will be your supervisor.

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United States District Court
Northern District of California

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Declaration of Plaintiff Connie M. Davis in Support of Plaintiff’s Opposition to Defendants’

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Motion to Dismiss for Lack of Personal Jurisdiction (“Davis Decl.”), Exh. B. This offer letter was

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sent to Plaintiff by Stephen McGowen, the Chief Administration Officer of NIHFCU. See id.

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In reliance on representations by Callis and NIHFCU, Plaintiff accepted the position and

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moved to Maryland. Compl. ¶ 13. She began to work for NIHFCU on February 28, 2011. Id. ¶

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14. Within two weeks of joining the Credit Union, however, Plaintiff was at loss as to why Callis

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had hired her, as there was absolutely nothing for her to do. Id. Plaintiff was not given the job

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duties as they had been represented by Callis. Id. Plaintiff had only one direct report, who had

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only five direct reports working for her. Id. Callis knew that Plaintiff had managed a team of

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more than 100 employees in six departments at the Bank of West, and had managed a team of six

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departments at the University of California. Id. The primary reason Plaintiff accepted the position

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at NIHFCU was because she was told by Callis that she would be able to build a new Cash

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Management Division, but upon arriving at NIHFCU, she was told that implementation of a new

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Cash Management Division was not in the company’s plan for that year. Id. Plaintiff spent the
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next several weeks at NIHFCU finding ways to automate processes, re-engineer processes, and

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modify policies and procedures. Id.

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Approximately three months after Plaintiff began working at the Credit Union, Callis

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wrote Plaintiff an email informing Plaintiff that she no longer reported to Callis, and would now

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report to the Executive Vice President, Tim Duvall. Compl. ¶ 15. This change in Plaintiff’s chain

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of supervision was contrary to the representations made by Callis that Plaintiff would be working

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directly for her, which was one of the primary reasons Plaintiff agreed to relocate to Maryland. Id.

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Plaintiff believes that Callis transferred the supervision of Plaintiff in order for Duvall to fabricate

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a basis to fire Plaintiff because the job she had been hired to do did not exist, as there was no plan

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to build a Cash Management Division until sometime in 2012. Id.

United States District Court
Northern District of California

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On July 15, 2011, approximately four and a half months after Plaintiff began working at

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NIHFCU, Plaintiff was called into a meeting with Duvall and NIHFCU’s Chief Administration

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Officer and summarily fired. Compl. ¶ 16. Plaintiff protested that neither Duvall nor Callis nor

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any other senior manager had ever complained about any problems with her work, and had only

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expressed how happy they were with all the automation and process improvements she had

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implemented. Id. Duvall responded that he could do whatever he wanted because Maryland was

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an “at will” state. Id. He told Plaintiff she was fired for two reasons−first that Plaintiff had failed

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to write a procedure, and second that she had not figured out that there was a problem with the

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DDA posting system. Id. Plaintiff responded that she had never been asked her to write a

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procedure, and that the DDA posting system was an IT problem for which she was not

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responsible. Id. Duvall had no response to Plaintiff’s protestations. Id. Plaintiff was offered no

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severance. Id.

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After the meeting, the Chief Administration Officer escorted Plaintiff to her office to

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collect her personal items and she was escorted from the building. Compl. ¶ 16. Callis was

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nowhere to be found. Plaintiff immediately filed a formal complaint of her wrongful termination

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with two members of the NIHFCU Board of Directors, but received no response. Id. ¶ 17.

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Plaintiff alleges that she has suffered substantial damages as a result of the inducement
from Callis and NIHFCU to move to Maryland for a job that did not exist. Compl. ¶¶ 18-19. To
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take the job at NIHFCU, she had to give up her employment at the University of California, where

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she earned $130,000 plus full benefits, a 401k plan, and vacation and sick leave. Id. ¶ 18.

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Plaintiff has not been able to find alternate employment since her termination, despite her diligent

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search in both Maryland and California. Id. She was also unable to break her lease in Maryland,

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so she continued to live in Maryland until moving back to California in June of 2012. Id. ¶ 19.

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While in Maryland, Plaintiff spent approximately $50,000 for rent and utilities, gasoline for her

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job search, and flights to and from San Francisco to visit her family. Id.

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B.

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Plaintiff asserts in the Complaint one cause of action arising under California Labor Code

Claim under California Labor Code § 970

§ 970, which prohibits misrepresentations concerning employment. Section 970 provides, in

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United States District Court
Northern District of California

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relevant part, that:

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[n]o person, or agent or officer thereof, directly or indirectly, shall
influence, persuade, or engage any person to change … from any
place within the State to any place outside, for the purpose of
working in any branch of labor, through or by means of knowingly
false representations, whether spoken, written, or advertised in
printed form, concerning … [t]he kind, character, or existence of
such work; [or t]he length of time such work will last[.]

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Cal. Lab. Code § 970.

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C.

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Defendants bring a Motion to Dismiss for Lack of Personal Jurisdiction and/or Improper

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Venue, or in the Alternative, to Transfer Venue for Convenience. Defendants argue they do not

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have the minimum contacts with California necessary for the Court to exercise personal

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jurisdiction over them. Defendants further argue that venue is not proper in the Northern District

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of California because neither NIHFCU nor Callis “resides” in California, and the alleged wrongful

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acts occurred in Maryland, not California. Accordingly, Defendants move for an order dismissing

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this case pursuant to Rule 12(b)(2) for lack of jurisdiction, and Rule 12(b)(3) for improper venue.

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In the alternative, Defendants move the Court to transfer this case to Maryland on the basis of

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improper venue under 28 U.S.C. § 1406(a), or for convenience under 28 U.S.C. § 1401(a).

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The Motion

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III.

DISCUSSION
A.

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Whether the Exercise of Personal Jurisdiction over Defendants Violates Due
Process

“Where a defendant moves to dismiss a complaint for lack of personal jurisdiction, the

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plaintiff bears the burden of demonstrating that jurisdiction is appropriate.” Schwarzenegger v.

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Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). “Where, as here, the motion is based

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on written materials rather than an evidentiary hearing, ‘the plaintiff need only make a prima facie

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showing of jurisdictional facts.’” Id. (quoting Sher v. Johnson, 911 F.3d 1357, 1361 (9th Cir.

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1990)). “Although the plaintiff cannot simply rest on the bare allegations of its complaint, …
uncontroverted allegations in the complaint must be taken as true.” Schwarzenegger, 374 F.3d at

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United States District Court
Northern District of California

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800 (internal quotations omitted). “Conflicts between parties over statements contained in

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affidavits must be resolved in the plaintiff’s favor.” Id.

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“Where, as here, there is no applicable federal statute governing personal jurisdiction, the

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district court applies the law of the state in which the district court sits.” Dole Food Company,

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Inc. v. Watts, 303 F.3d 1104, 1110 (9th Cir. 2002). “Because California’s long-arm jurisdictional

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statute is coextensive with federal due process requirements, the jurisdictional analyses under state

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law and federal due process are the same.” Id. (citing Cal. Code Civ. Proc. § 410.10). “For a

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court to exercise personal jurisdiction over a non-resident defendant, that defendant must have at

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least ‘minimum contacts’ with the relevant forum such that the exercise of jurisdiction ‘does not

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offend traditional notions of fair play and substantial justice.’” Dole Food, 303 F.3d at 1110-11

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(citing International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). “In judging minimum

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contacts, a court properly focuses on ‘the relationship among the defendant, the forum, and the

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litigation.’” Calder v. Jones, 465 U.S. 781, 788 (1984) (quoting Shaffer v. Heitner, 433 U.S. 186,

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204 (1977)).

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Personal jurisdiction may be either general or specific. See Bancroft & Masters, Inc. v.

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Augusta Nat. Inc., 223 F.3d 1082, 1086 (9th Cir. 2000). General jurisdiction may be established

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when a defendant’s contacts with a state are “substantial” or “continuous and systematic” such that

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the defendant “can be haled into court in that state in any action, even if the action is unrelated to
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those contacts.” Id. “The standard for establishing general jurisdiction is fairly high, and requires

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that the defendant’s contacts be of the sort that approximate physical presence.” Id. In the

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Complaint, there is no allegation that commercial activities of Defendants impact California on a

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substantial, continuous and systematic basis. In the Opposition to Defendants’ Motion, Plaintiff

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only argues that there is “limited” personal jurisdiction over Defendants. See Opp. at 13-20.

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NIHFCU is a corporation with its principal place of business in Maryland, and is not qualified to

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do business in California. Declaration of Stephen McGowan in Support of Amended Motion to

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Dismiss for Lack of Personal Jurisdiction and/or Venue ¶¶ 2-3. Thus, the Court finds that

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Defendants are not subject to general jurisdiction in California.
Nevertheless, “[e]ven if a defendant has not had continuous and systematic contacts with

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United States District Court
Northern District of California

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the state sufficient to confer general jurisdiction, a court may exercise specific jurisdiction when

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the following requirements are met:

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(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
privileges of conducting activities in the forum, thereby invoking the
benefits and protections of its laws;

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(2) the claim must be one which arises out of or relates to the
defendant’s forum-related activities; and

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

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Dole Food, 303 F.3d at 1111 (internal quotations and citations omitted). “The plaintiff bears the

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burden of satisfying the first two prongs of the test.” Id. (citing Sher, 911 F.2d at 1361). If the

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plaintiff fails to satisfy either of these prongs, personal jurisdiction is not established in the forum

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state.” Dole Food, 303 F.3d at 1111. “If the plaintiff succeeds in satisfying both of the first two

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prongs, the burden then shifts to the defendant to ‘present a compelling case’ that the exercise of

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jurisdiction would not be reasonable.” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S.

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462, 476-78 (1985)).

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Purposeful Direction or Availment2

“The purposeful availment requirement ensures that a nonresident defendant will not be

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haled into court based upon ‘random, fortuitous or attenuated contacts with the forum state.”

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Panavision Intern., L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998) (quoting Burger King,

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471 U.S at 475). Under Ninth Circuit precedent, the purposeful direction requirement for tort

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cases is analyzed under the “effects” test derived from Calder v. Jones, 465 U.S. 783 (1984). See

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Dole Food, 303 F.3d at 1111; see also Yahoo!, 433 F.3d at 1206 (“In tort cases, we typically

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inquire whether a defendant purposefully directs his activities at the forum state, applying an

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‘effects’ test that focuses on the forum in which the defendant’s actions were felt, whether or not

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the actions themselves occurred within the forum.”).

United States District Court
Northern District of California

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Plaintiff asserts a single cause of action arising under California Labor Code § 970.

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“Labor Code section 970 creates a statutory tort cause of action.” Burden v. Cnty. of Santa Clara,

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81 Cal.App.4th 244, 253 (2000) (holding that the claims under § 970 are subject to the Tort

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Claims Act). Thus, the Calder ‘effects’ test applies to determine whether Defendants purposefully

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directed their conduct at California. Panavision, 141 F.3d at 1321 (stating that because a

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trademark infringement and unfair competition case was “akin” to a tort case, the court should

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apply the Calder ‘effects’ test). Under Calder, “the ‘effects’ test requires that the defendant

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allegedly have (1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing

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harm that the defendant knows is likely to be suffered in the forum state.” Dole Food, 303 F.3d at

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1111.

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The Ninth Circuit often refers to this element, “in shorthand fashion, as the ‘purposeful
availment’ prong.” Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d
1199, 1206 (9th Cir. 2006) (en banc) (per curiam). Nevertheless, “[d]espite its label, this prong
includes both purposeful availment and purposeful direction.” Id. In contract cases, the relevant
inquiry is “whether a defendant a defendant purposefully avails itself of the privilege of
conducting activities or consummates a transaction in the forum.” Id. (emphasis added) (internal
quotations omitted). In tort cases, the relevant inquiry is “whether a defendant purposefully
directs his activities at the forum state[.]” Id. (emphasis added) (internal quotations omitted).
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i.

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Intentional Act

Plaintiff alleges that Defendants knowingly made false representations regarding the

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existence of a long-term position for Plaintiff at NIHFCU as the Vice President of Cash

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Management and Account Operations, when in fact, that position did not exist because NIHFCU

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did not have a plan to build a Cash Management Division until sometime in 2012. See Compl. ¶¶

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11-15. Thus, Plaintiff has sufficient alleged that Defendants acted intentionally. See Dole Food,

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303 F.3d at 1111 (“Because it is clear that [Plaintiff] has sufficiently alleged that [Defendants]

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acted intentionally, we skip to the ‘express aiming requirement.’”).
ii.

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Express Aiming at the Forum State

The ‘express aiming’ requirement “is satisfied when the defendant is alleged to have

United States District Court
Northern District of California

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engaged in wrongful conduct targeted at a plaintiff whom the defendant knows to be a resident of

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the forum state.” Bancroft & Masters, 223 F.3d at 1087. In Bancroft & Masters, the Ninth Circuit

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found “express aiming” at California when the defendant sent a letter to Virginia with the intent to

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disrupt the plaintiff’s business in California. See id.; see also Dole Food, 303 F.3d at 1112

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(“Because [Defendants] knew that Dole’s principal place of business was in California, and

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communicated directly with those California decisionmakers, we conclude that their actions were

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‘expressly aimed’ at the forum state.”); Data Disc, Inc. v. Sys. Tech. Assoc., 557 F.3d 1280, 1288

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(9th Cir. 1977) (“The inducement of reliance in California is a sufficient act within California to

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satisfy the requirement of minimum contacts where the cause of action arises out of that

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inducement.”).

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The Court finds that Plaintiff also satisfies the ‘express aiming’ requirement of the Calder

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‘effects’ test. Plaintiff alleges that Defendants made false representations to Plaintiff while she

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lived in California for the purpose of inducing her to move to Maryland. Specifically, Callis

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began calling Plaintiff and “aggressively” recruited her with promises of a long-term position at

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NIHFCU working directly for Callis. At the time these allegedly false representations were made,

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Defendants knew that Plaintiff was a resident of California, as Plaintiff initially met Callis in

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California when they worked together at Keypoint in Santa Clara, and Callis and NIHFCU

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recruited Plaintiff−first for a week-long assignment and then for a long-term position−while
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Plaintiff had a job at the University of California. Further indication that Defendants expressly

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aimed their conduct at California is the offer letter NIHFCU sent to Plaintiff at her home address

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in Concord, California. This offer letter allegedly contained fraudulent misrepresentations

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regarding the existence of a position for her at NIHFCU and a false promise that Plaintiff would

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be working directly for Callis. Thus, the Court finds that Defendants’ “intentional, and allegedly

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tortious, actions were expressly aimed at California.” Bancroft & Masters, 223 F.3d at 1087.

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iii.

Causing Harm in the Forum State

The final element of the Calder ‘effects’ test is satisfied if Plaintiff can show that “a
jurisdictionally sufficient amount of harm is suffered in the forum state.” Yahoo!, 433 F.3d at
1207 (en banc) (overruling prior decisions which required “the ‘brunt’ of the harm” to be suffered

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United States District Court
Northern District of California

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in the forum state). Although Plaintiff was in Maryland when she learned that her position at

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NIHFCU would be terminated, and continued to live in Maryland searching for work for

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approximately one year thereafter, the Court finds that Plaintiff has suffered a “jurisdictionally

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sufficient amount of harm” in California. Yahoo!, 433 F.3d at 1207.

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Before moving to Maryland to work for Callis at NIHFCU, Plaintiff had lived in the San

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Francisco Bay Area for over twenty-five years. Compl. ¶ 12. She left her job at the University of

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California, where she had earned $130,000 plus benefits, and had planned to work for the rest of

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her career. Id. ¶ 18. Plaintiff was not looking for another job when Callis began to “aggressively”

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recruit her to work at NIHFCU. Id. ¶ 12. When Plaintiff moved to Maryland, she left her

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professional network and her local religious community to which she held significant ties. Id.

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While Plaintiff stayed in Maryland for approximately one year after her termination, she moved

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back to California in June of 2012. Id. ¶ 19. At the time the instant Complaint was filed in

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October 2012, Plaintiff had not yet found alternative employment, and continues to suffer from the

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emotional distress of being unemployed. Id. The Court finds that the foregoing constitutes a

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“jurisdictionally significant” amount of harm that Plaintiff suffered in California. Thus, Plaintiff

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has established the final element of the Calder ‘effects’ test.

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Defendants fail to cite Calder in their Motion, and only briefly mention the ‘effects’ test in

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a conclusory fashion in their Reply to Plaintiff’s Opposition. Instead of undertaking the

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appropriate analytical analysis, Defendants attempt to factually distinguish Calder and other cases

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cited by Plaintiff. Defendants also assert, incorrectly, that “[a]ll of the authorities cited by plaintiff

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involve situations where defendant was present in the forum state, and conducted business

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activities in that state.” Reply at 3. Even if this were true, “[i]t is not required that a defendant be

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physically present or have physical contacts with the forum, so long as his efforts are purposefully

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directed toward forum residents.” Panavision, 141 F.3d at 1320 (internal quotations omitted).

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Defendants also cite Peterson v. Kennedy, 771 F.2d 1244, 1262 (1985), for the position
that telephone calls and email contact with a plaintiff in California have been held not to be

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United States District Court
Northern District of California

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sufficient for purposeful availment. Motion at 8. In Peterson, the Ninth Circuit found that a series

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of phone calls and letters sent by the defendant to California were insufficient to provide the basis

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for personal jurisdiction over an out-of-state defendant in a legal malpractice case. Peterson, 771

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F.2d at 1262 (“ordinarily use of the mails, telephone, or other international communications

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simply do not qualify as purposeful activity invoking the benefits and protection of the forum

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state.”) (internal quotations omitted). Peterson was decided shortly after the Supreme Court’s

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decision in Calder, and before the Ninth Circuit began to consistently apply the Calder ‘effects’

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test to tort cases. Nevertheless, even if Peterson is still good law, it must be distinguished on its

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facts, as the defendant in Peterson did not initiate contact with the plaintiff, but rather made phone

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calls and sent letters after the plaintiff first requested his help to enforce an injury protection

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clause. See id. at 1249. In this case, Plaintiff alleges that Callis “began calling Plaintiff [in

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California] and aggressively recruiting her to work in for her in Maryland.” Compl. ¶ 11. Thus,

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while the Peterson defendant did not purposefully direct his conduct at the forum state,

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Defendants in this case allegedly did.
Accordingly, the Court finds that Plaintiff has established that Defendants purposefully

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directed their conduct at California.

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2.

Relatedness of the Claim

“The second requirement for specific, personal jurisdiction is that the claim asserted in the

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litigation arises out of the defendant’s forum related activities.” Panavision, 141 F.3d at 1322.

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The Court must determine if Plaintiff would not have been injured “but for” Defendant’s conduct

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directed towards Plaintiff in California. See id. Defendants argue Plaintiff cannot establish this

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element because her claim is based on the alleged wrongful termination of Plaintiff’s employment,

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which occurred after Plaintiff moved to Maryland. Motion at 6. This argument is without merit.

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Plaintiff has not asserted a wrongful termination claim in her Complaint. Instead, Plaintiff
asserts a single claim under California Labor Code § 970, which prohibits false representations
regarding the kind, character, length and existence of work in order to induce any person to move

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United States District Court
Northern District of California

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away from California to another state. See id. The allegedly false representations were made

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while Plaintiff lived in California, and form the gravamen of Plaintiff’s claim. “[T]he contacts

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between [Defendants] and the forum state are integral and essential parts of the alleged fraudulent

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scheme on which [Plaintiff] basis [her] suit.” Dole Food, 303 F.3d at 1114. But for Defendants’

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false representations to Plaintiff in California, Plaintiff would not be injured. Panavision, 141

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F.3d at 1322. Accordingly, Plaintiff also sufficiently establishes the second element of specific

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personal jurisdiction.

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3.

Reasonableness

“Once it has been established that a defendant purposefully established minimum contacts

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with a forum, ‘he must present a compelling case that the presence of some other considerations

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would render jurisdiction unreasonable’ in order to defeat personal jurisdiction.” Dole Food, 303

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F.3d at 1144 (quoting Burger King, 471 U.S. at 477). To determine whether the exercise of

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jurisdiction is reasonable, and therefore, “comports with fair play and substantial justice,” courts

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consider seven factors:

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(1) the extent of the defendants’ purposeful injection into the forum
state’s affairs; (2) the burden on the defendant of defending in the
forum; (3) the extent of conflict with the sovereignty of the
defendant’s state; (4) the forum state’s interest in adjudicating the
dispute; (5) the most efficient judicial resolution of the controversy;
(6) the importance of the forum to the plaintiff's interest in
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convenient and effective relief; and (7) the existence of an
alternative forum.
Dole Food, 303 F.3d at 1114.
None of the foregoing seven factors render personal jurisdiction unreasonable in this case.

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First, as discussed above, Defendants have purposefully directed their conduct to California.

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Second, while the Court recognizes the inconvenience for Defendants to have to litigate this case

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in California, “this factor is not dispositive.” Dole Food, 303 F.3d at 1115. Third, there is no

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indication of any conflict with the sovereignty of Maryland. Fourth, “California has a strong

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interest in providing a forum for its residents and citizens who are tortuously injured.” Id. at 1115-

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16. Fifth, this Court is the most efficient forum for resolution of this controversy, as the case has
already been filed here. Sixth, the convenience of this forum is important to Plaintiff, who is a

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United States District Court
Northern District of California

10

resident of the San Francisco Bay Area. Seventh, while a Maryland court may provide an

12

alternative forum, this fact alone will not defeat this Court’s exercise of personal jurisdiction.

13

Although Defendants bear the burden of presenting a “compelling” reason why the

14

exercise of jurisdiction would be unreasonable, Defendants fail to discuss any of the relevant

15

factors mentioned above. Defendants also cite Conti v. Pneumatic Products Corp., 977 F.2d 978

16

(6th Cir. 1992), a case not binding upon this Court, in support of their argument that exercising

17

personal jurisdiction would be unreasonable. The relevance of Conti is far from obvious,

18

however, as the case merely holds that it is unreasonable for an Ohio court to assert personal

19

jurisdiction over a Florida company who hired an Ohio resident by contacting a recruiting agency

20

in Florida. Conti, 977 F.2d at 983. Defendants, therefore, have failed to meet their burden to

21

present any “compelling” reason why the exercise of personal jurisdiction would be unreasonable.

22
23

*

*

*

As a final matter, the Court specifically addresses the specific conduct of Callis and

24

NIHFCU separately. See Calder, 465 U.S. at 790 (“Each defendant’s contacts with the forum

25

State must be assessed individually.”). Callis’s conduct is imputed to NIHFCU during the time in

26

which she was CEO, and therefore, was an agent of NIHFCU. Sher v. Johnson, 911 F.2d at 1362

27

(“For purposes of personal jurisdiction, the actions of an agent are attributable to the principal.”).

28

Thus, Callis’s “aggressive” recruiting of Plaintiff while she lived in California, and her alleged use
13

1

of false representations to recruit Plaintiff, is imputed to NIHFCU. See id. In addition, Stephen

2

McGowan, the Chief Administrative Office of NIHFCU, sent the offer letter to Plaintiff’s home

3

address in Concord, California on behalf of NIHFCU, which also contained allegedly false

4

representations. Therefore, the Court finds that NIHFCU had minimum contacts with California.

5

Callis’s contacts with California are also sufficient for the Court to assert specific

6

jurisdiction over her as an individual. While “a person’s mere association with a corporation that

7

causes injury in the forum state is not sufficient in itself to permit that forum to assert jurisdiction

8

over the person,” due process permits “personal jurisdiction over officers of a corporation as long

9

as the court finds those officers to have sufficient minimum contacts with [the forum state].”
Davis v. Metro Prods., Inc., 885 F.2d 515, 520, 522 (9th Cir. 1989). Callis has not been named as

11
United States District Court
Northern District of California

10

a defendant in this action merely because she is CEO of NIHFCU. Rather, Callis is alleged to

12

have personally made the majority of false representations forming the basis of Plaintiff’s claim

13

and this Court’s exercise of jurisdiction. Moreover, Callis first hired Plaintiff as an employee in at

14

the Keypoint Credit Union in Santa Clara, California, and Plaintiff’s trust in Callis began to

15

develop at that time. See Complaint ¶¶ 9, 15. While Plaintiff’s relationship with Callis during

16

their time together at Keypoint is only tangentially related to Plaintiff’s claim under California

17

Labor Code § 970, “all of a defendant’s contacts with the forum state” must be considered in a

18

personal jurisdiction analysis, “whether or not those contacts involve wrongful activity by the

19

defendant.” Yahoo!, 433 F.3d at 1207. The Court finds that Callis had sufficient minimum

20

contacts with California for the Court to assert personal jurisdiction over her individually. 3

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22
23
24
25
26
27
28

3

Defendants cite a case from the Eleventh Circuit to support their argument that Callis
cannot be subject to personal jurisdiction for her acts directed toward a forum state which were
undertaken in her corporate capacity. Motion at 6 (citing Club Car, Inc. v. Club Car (Quebec)
Import, Inc., 362 F.3d 775 (11th Cir. 2004)). In addition to the fact Club Car is not binding upon
this Court, this case is irrelevant because the rule from Club Car was derived from a series of state
court cases from Georgia, see Girard v. Weiss, 160 Ga.App. 295, 298 (1981); S. Electronics
Distributors, Inc. v. Anderson, 232 Ga.App. 648, 650 (1998), which have since been overruled.
See Amerireach.com, LLC v. Walker, 290 Ga. 261 (2011) (holding that employees of a corporation
that is subject to personal jurisdiction may themselves be subject to personal jurisdiction if those
employees were primary participants in the activities forming the basis of jurisdiction over the
corporation).
14

1

Having found that Plaintiff established the first two requirements of personal jurisdiction,

2

and that Defendants failed to present any compelling reason why the exercise of jurisdiction would

3

be unreasonable, the Court will assert personal jurisdiction over Defendants. The Motion to

4

Dismiss for lack of personal jurisdiction is therefore DENIED.

5

B.

6

Venue is proper in “a judicial district in which a substantial part of the events or omissions

Whether Venue is Improper under 28 U.S.C. § 1391(b)

7

giving rise to the claim occurred[.]” 28 U.S.C. § 1391(b)(2). Defendants contend that venue in

8

the Northern District of California is improper because no event giving rise to Plaintiff’s claim

9

occurred within this district. To the contrary, as discussed above, Defendants’ allegedly false
representations regarding the kind, character and nature of the job for which Plaintiff was recruited

11
United States District Court
Northern District of California

10

occurred in this district. Venue is therefore proper. Accordingly, Defendant’s Motion to dismiss

12

or transfer this case for improper venue is DENIED.

13

C.

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A case may be transferred “[f]or the convenience of parties and witnesses, in the interests

Whether the Case Should be Transferred under 28 U.S.C. § 1404(a)

15

of justice,” to “any other district or division where it might have been brought[.]” 28 U.S.C. §

16

1404(a). Under § 1404(a), a district court has discretion “to adjudicate motions for transfer

17

according to an individualized, case-by-case consideration of convenience and fairness.” Jones v.

18

GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000). Courts consider multiple factors in

19

determining whether transfer is appropriate. Such factors include:

20

24

(1) the location where the relevant agreements were negotiated and
executed, (2) the state that is most familiar with the governing law,
(3) the plaintiff’s choice of forum, (4) the respective parties’
contacts with the forum, (5) the contacts relating to the plaintiff's
cause of action in the chosen forum, (6) the differences in the costs
of litigation in the two forums, (7) the availability of compulsory
process to compel attendance of unwilling non-party witnesses, and
(8) the ease of access to sources of proof.

25

Id. at 498-99. The “relevant public policy of the forum state” is also a “significant” factor in the §

26

1404(a) balancing. Id. at 499.

21
22
23

27
28

The Court has considered the above-mentioned factors, and declines to exercise its
discretion to transfer this case to Maryland. “The defendant must make a strong showing of
15

1

inc
convenience to warrant upsetting the plaintiff’s c
u
e
choice of for
rum.” Decke Coal Co. v.
er

2

Commonwealth Edison Co 805 F.2d 834, 843 (9th Cir. 1986) Here, Def
h
o.,
8
h
).
fendants have failed to

3

arti
iculate any inconvenienc beyond th normal bu
i
ce
he
urdens of liti
igation. See Declaration of Micheal
n

4

A. Bishop in Su
upport of De
efendants Am
mended Mot
tion to Dism ¶ 5. Wh it may be expensive
miss
hile
e

5

for Defendants and their witnesses to attend trial in California, there would be no lesse burden
r
s
w
a
n
,
d
er

6

pla
aced upon Pl
laintiff if this case were transferred t Maryland. There is no indication that any
s
t
to
.
o

7

evi
idence availa to Defen
able
ndants in Maryland will not also be available fo use by Def
l
or
fendants in

8

California. In addition, a court located in Californi is better s
c
d
suited to adju
udicate Plain
ntiff’s single
ia

9

cau of action arising und California law. There
use
n
der
a
efore, this di
ispute should be litigated in this
d
dis
strict. Accor
rdingly, Defe
endant’s Mo
otion to trans under § 1404(a) is D
sfer
DENIED.

11
United States District Court
Northern District of California

10

IV.

12

CONCLUSION
For the foregoing re
easons, Defe
endants’ Mo
otion to Dism for Lack of Persona
miss
k
al

13

Jur
risdiction and for Imp
d/or
proper Venue or in the A
e,
Alternative, t Transfer f Convenie
to
for
ence is

14

DE
ENIED.

15
16

IT IS SO ORDERE
ED.
Da
ated: May 15 2013
5,
__
___________
__________
____
JO
OSEPH C. SP
PERO
Un
nited States M
Magistrate J
Judge

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