Malmquist v. Malmquist et al

Filing 54

ORDER by Judge James Donato granting 48 Motion to Dismiss. Amended Complaint due by 10/2/2019. (lrcS, COURT STAFF) (Filed on 9/4/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DANIELLE MALMQUIST,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 17-cv-04831-JD

ORDER RE MOTION TO
DISMISS

v.
SHEM MALMQUIST, et al.,

Re: Dkt. No. 48

Defendants.

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This action arises out of “a bitter and nasty” divorce between plaintiff Danielle Malmquist,

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who is proceeding pro se, and her ex-husband, defendant Shem Malmquist. Dkt. No. 1 at 5.

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Because the parties share the same last name, the Court uses their given names for clarity. The

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complaint alleges that Shem and his wife Meredith sponsored online posts saying that Danielle

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had mental health issues and a criminal record. Danielle has sued for defamation and intentional

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interference with prospective economic advantage under California state law.

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Shem and Meredith, who are the only defendants who have been served with the

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complaint, contend that the Court lacks personal jurisdiction over them. They have moved to

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dismiss the case on that basis under Federal Rule of Civil Procedure 12(b)(2). Dkt. No. 48.

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The facts pertinent to the jurisdictional question are straightforward. The complaint

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alleges that Danielle lives in California, and that Shem and Meredith are residents of Florida. Dkt.

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No. 1 ¶ 4. The complaint does not show that Shem and Meredith did anything in California or this

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judicial district that was material to Danielle’s claims. To carry her burden of establishing

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personal jurisdiction, see Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008), Danielle

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contends in her brief that Shem and Meredith have occasionally visited their children in

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California, and that Shem sometimes had a layover in the state while working as a pilot for

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Federal Express. Dkt. No. 52 at 10-11.

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Even construed generously in light of Danielle’s pro se status, nothing in the complaint or

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the record as a whole establishes personal jurisdiction over Shem and Meredith in this Court.

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Where, as here, no federal statute authorizes personal jurisdiction, the Court applies the law of the

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state in which it sits. Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998).

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California’s long-arm statute, Cal. Code Civ. Proc. § 410.10, is coextensive with the limits of the

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Constitution’s due process clause, so the dispositive test is whether personal jurisdiction in this

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Court comports with traditional concepts of fair play and due process. Schwarzenegger v. Fred

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Martin Motor Co., 374 F.3d 797, 800-01 (9th Cir. 2004).

United States District Court
Northern District of California

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Because Shem and Meredith live outside the state, and are not alleged to have any

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continuous and systematic contacts with it, general personal jurisdiction has not been shown. See

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Bristol-Myers Squibb Co. v. Superior Court of California, S.F. Cty., 137 S. Ct. 1773, 1780 (2017);

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Schwarzenegger, 374 F.3d at 801.

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Specific personal jurisdiction is also lacking. Specific jurisdiction focuses on the

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defendant’s contacts with the forum state for the claims at issue. Walden v. Fiore, 571 U.S. 277,

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284 (2014). This is “case-linked” jurisdiction, and it looks to whether the defendant undertook an

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activity or occurrence in the forum state “and is therefore subject to the State’s regulation.” Id. at

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283 n.6 (internal quotation omitted). It is the defendant’s “suit-related conduct” that “must create

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a substantial connection with the forum State.” Id. at 284. The suit must arise out of or relate to

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the defendant’s contacts “with the forum” for specific personal jurisdiction to arise. Bristol-Myers

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Squibb Co., 137 S. Ct. at 1780 (internal quotation omitted) (emphasis in original). Without that

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connection, “specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected

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activities in the State.” Id. at 1781.

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That is the case here. Danielle has not proffered any facts showing that her defamation or

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interference claims arose out of anything Shem and Meredith did in this forum. The periodic

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family and business trips are entirely unrelated to the claims in the complaint, and merely posting

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materials online, which the Court will assume happened for present purposes, is not enough to
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create personal jurisdiction in this district. See Erickson v. Nebraska Mach. Co., No. 15-CV-

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01147-JD, 2015 WL 4089849 at *4 (N.D. Cal. July 6, 2015). So too for the uncontested facts

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about a California state family law case in Los Angeles involving Shem and a different spouse,

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which appears to date back to 2002 and does not change the fact that Shem moved out of

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California in 2004. See Dkt. 53-1.

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The remaining question is whether Danielle should be allowed to amend the complaint
with respect to personal jurisdiction. While the Court is not sanguine about the likelihood of

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success in light of the undisputed facts adduced so far, it cannot say that amendment is necessarily

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futile. If Danielle would like to amend to add facts showing personal jurisdiction along the lines

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discussed in this order, she must file an amended complaint by October 2, 2019. No new claims

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United States District Court
Northern District of California

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or parties may be added. If an amended complaint is not filed by this deadline, the case will be

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dismissed with prejudice under Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated: September 4, 2019

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JAMES DONATO
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DANIELLE MALMQUIST,

Case No. 17-cv-04831-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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SHEM MALMQUIST, et al.,
Defendants.

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United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

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That on September 4, 2019, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Danielle Malmquist
P.O. Box 4664
San Mateo, CA 94404

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Dated: September 4, 2019

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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