World Wide Ass'n of Specialty Programs & School v. Houlahan ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 10 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
WORLD WIDE ASSOCIATION OF
SPECIALTY PROGRAMS AND
SCHOOLS, a Utah corporation,
Plaintiff - Appellant, No. 04-4181
(D.C. No. 2:04-CV-107-DAK)
v. (D. Utah)
THOMAS G. HOULAHAN, a foreign
individual,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before HENRY , BRISCOE , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff World Wide Association of Specialty Programs and Schools, an
association of specialty schools for troubled teens, filed this diversity case
alleging defamation and intentional interference with prospective economic
advantage. The district court granted defendant Thomas G. Houlahan’s motion
for dismissal, based on lack of personal jurisdiction. We affirm.
Background Facts
The World Wide Association of Speciality Programs and Schools (the
association) maintains its principal place of business in St. George, Utah.
Mr. Houlahan, a reporter who resides in Washington, D.C., researched a story for
United Press International about alleged abuse at association schools located in
New York, South Carolina, Jamaica, and Mexico. In its lawsuit, the association
alleged that, while investigating the story, the reporter made defamatory
statements to potential students, former students, parents of potential and former
students, an employee of a state agency responsible for licensing a member
school, and a Utah attorney who had filed numerous suits against plaintiff. At the
time of the contacts, these individuals were located in Alaska, North Carolina,
South Carolina, and California.
Discussion
The association asserts that, under Utah’s long-arm statute, the court was
authorized to exercise specific jurisdiction over Mr. Houlahan because the alleged
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acts caused injury in Utah: harm to the association’s sole source of funding – the
dues paid by member schools. See Utah Code Ann. § 78-27-24. 1
“This Court reviews the district court’s ruling on personal jurisdiction de novo .”
Bell Helicopter Textron, Inc. v. Heliqwest Intern., Ltd ., 385 F.3d 1291, 1296 (10th
Cir. 2004). “The burden of establishing personal jurisdiction over the defendant
is on the plaintiff.” Id. at 1295. Where, as here, “the evidence presented on the
motion to dismiss consists of affidavits and other written materials the plaintiff
need only make a prima facie showing. The district court must resolve all factual
disputes in favor of the plaintiff.” Id. (citations omitted).
The Utah Long-Arm statute is to be “applied so as to assert jurisdiction
over nonresident defendants to the fullest extent permitted by the due process
clause.” Utah Code Ann. § 78-27-22. And to satisfy the constitutional
requirement of due process there must be “‘minimum contacts’ between the
defendant and the forum State.” World-Wide Volkswagen Co. v. Woodson ,
444 U.S. 286, 291 (1980) (quoting Int’l Shoe Co. v. Washington , 326 U.S. 310,
1
The Utah long-arm statute authorizes an exercise of specific jurisdiction
over:
Any person ... whether or not a citizen or resident of this state, who
in person or through an agent does any of the following enumerated
acts, submits himself . . . to the jurisdiction of the courts of this state
as to any claim arising out of or related to: . . . (3) the causing of
any injury within this state whether tortious or by breach of warranty.
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316 (1945)). “When the ‘defendant has purposely directed his activities at
residents of the forum,’ courts in that state may exercise specific jurisdiction in
cases that ‘arise out of or relate to those activities.’” Bell Helicopter Textron ,
385 F.3d at 1296 (quoting Burger King Corp. v. Rudzewicz , 471 U.S. 462, 472-73
(1985) (further quotations omitted)).
To support specific jurisdiction, there must be “some act by which the
defendant purposefully avails itself of the privilege of conducting activities
within the forum State, thus invoking the benefits and protections of its laws.”
Hanson v. Denckla , 357 U.S. 235, 253 (1958); see also Fidelity and Cas. Co. of
N.Y. v. Phila. Resins Corp ., 766 F.2d 440, 445 (10th Cir. 1985) (quoting Hanson ,
357 U.S. at 253). The requirement of “purposeful availment” rules out personal
jurisdiction as the result of “random, fortuitous, or attenuated contacts.”
Burger King , 471 U.S. at 475 (further quotation omitted). In the instant case, the
district court correctly determined that the record lacked any evidence of the
requisite purposeful availment.
Plaintiff also asserts that the court abused its discretion by denying limited
discovery designed to uncover the publication of defamatory comments in Utah.
See Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 458 (3rd Cir. 2003)
(determining that district court erred in denying plaintiff’s “specific, non-
frivolous,” and “reasonable” request for jurisdictional discovery, in order to “help
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determine whether jurisdiction exists under the federal long-arm statute”).
Plaintiff apparently made a general request for discovery in its response to
defendant’s dismissal motion. In the absence of an explicit, supported motion for
discovery, this court cannot say that the district court abused its discretion in
denying the request.
Appellant’s motion to file a reply brief out of time and motion to resubmit
reply with proper address are GRANTED. The judgment of the district court is
AFFIRMED.
Entered for the Court
Robert H. Henry
Circuit Judge
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