Menken v. Emm ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID MENKEN, 
Plaintiff-Appellant,
v. No. 05-16467
GERRY F. EMM and MAXINE C. D.C. No.
EMM; COLDWELL BANKER ITILDO,  CV-04-0598-PHX-
INC.; MARSHA L. TOMERLIN and MHM
JOHN DOE TOMERLIN; DAVID J.
OPINION
MORANDI and JANE DOE MORANDI;
SCARPELLO, HUSS & OSHINSKI, LTD.,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding
Argued and Submitted
June 12, 2007—San Francisco, California
Filed September 19, 2007
Before: Jay S. Bybee and Milan D. Smith, Jr.,
Circuit Judges, and J. Michael Seabright,* District Judge.
Opinion by Judge Seabright;
Partial Concurrence and Partial Dissent by Judge Bybee
*The Honorable J. Michael Seabright, United States District Judge for
the District of Hawaii, sitting by designation.
12629
MENKEN v. EMM 12633
COUNSEL
John Derrick, Law Office of John Derrick, Santa Barbara,
California, for the plaintiff-appellant.
Vincent M. Creta, Hammerman & Hultgren, Phoenix, Ari-
zona, for the defendants-appellees.
OPINION
SEABRIGHT, District Judge:
On December 12, 2003, Plaintiff-Appellant David Menken
(“Menken”) filed a Complaint in Arizona state court alleging
negligence, interference with contractual relations, civil extor-
tion, and a violation of Arizona Revised Statutes (“A.R.S.”)
§ 33-420. Defendant-Appellee Tomerlin removed the case
(based on diversity of citizenship) to the United States District
Court for the District of Arizona on March 24, 2004.1 The dis-
trict court dismissed for lack of personal jurisdiction.
1
The Complaint names several defendants; on appeal, Menken is pursu-
ing his case against only Marsha Tomerlin, her husband John Doe Tomer-
lin, and Coldwell Banker Itildo, Inc. (collectively, “Tomerlin”). Marsha
Tomerlin, a Nevada resident, is President of Coldwell Banker Itildo, Inc.,
a Nevada corporation with its lone office in Minden, Nevada.
12634 MENKEN v. EMM
Because we conclude that Tomerlin had sufficient contacts
with the State of Arizona to warrant the exercise of personal
jurisdiction, we reverse the judgment of the district court.
I.
In his Complaint, Menken alleges that Tomerlin obtained a
judgment against Menken in a case arising out of the United
States District Court for the District of Nevada (CV-N-96-
00142). In 1998, Tomerlin (along with other judgment credi-
tors) obtained a judgment against Menken for attorneys’ fees
and costs totaling $29,883.63. Menken never satisfied the
judgment. Between 1998 and 2003, Tomerlin incurred
expenses and legal fees attempting to locate Menken and his
assets. On May 1, 2003, the judgment creditors recorded the
Nevada judgment against Menken in Maricopa County, Ari-
zona and established a lien on Menken’s home there.
Menken alleges that Tomerlin then attempted to use the
lien as leverage to extract more money from Menken than was
due under the Nevada judgment. On August 22, 2003, Tomer-
lin’s Nevada attorney wrote to Menken’s agent in Arizona
with a payoff demand for the judgment ($29,883.63) and
post-judgment interest ($13,361.05), as well as costs and legal
fees accrued attempting to locate Menken ($36,740.52), for a
total demand of $79,985.20. Menken’s attorney responded to
the payoff demand by letter dated September 2, 2003, claim-
ing the amount was too high and that Menken did not have to
pay the post-judgment costs and legal fees. Tomerlin then
rejected Menken’s proposal to pay the judgment and interest,
but not the post-judgment costs and legal fees, in a September
15, 2003 letter. Menken’s counsel wrote to Tomerlin’s attor-
ney on October 23, 2003 advising that Menken had a pending
offer from a buyer to purchase his home in Maricopa County,
but could not complete the sale while Tomerlin’s lien was in
place. Menken’s counsel wrote again on November 11, 2003,
requesting that Tomerlin release the judgment lien. The lien
MENKEN v. EMM 12635
was not released and, according to Menken, the sale of his
home fell through.
Menken filed a Complaint on December 12, 2003 in Ari-
zona state court, later removed to the United States District
Court for the District of Arizona, alleging negligence, inter-
ference with contractual relations, civil extortion, and a viola-
tion of A.R.S. § 33-420.2 On January 27, 2005, the district
court granted Tomerlin’s motion to dismiss for lack of per-
sonal jurisdiction.
Following the issuance of the January 27, 2005 Order, no
separate entry of judgment was filed. Instead, on February 11,
2005, Menken filed a “Motion to Retain In Rem Jurisdiction
Over Count Four Relating to A. R. S. § 33-420.” At the June
24, 2005 hearing on the motion, Menken orally moved to
amend the Complaint. On June 29, 2005, the district court
entered an order denying Menken’s motion to retain in rem
jurisdiction and denying his motion to amend the Complaint.
A separate document entering final judgment was filed on
2
A.R.S. § 33-420 states in part:
A. A person purporting to claim an interest in, or a lien or encum-
brance against, real property, who causes a document asserting
such claim to be recorded in the office of the county recorder,
knowing or having reason to know that the document is forged,
groundless, contains a material misstatement or false claim or is
otherwise invalid is liable to the owner or beneficial title holder
of the real property for the sum of not less than five thousand dol-
lars, or for treble the actual damages caused by the recording,
whichever is greater, and reasonable attorney fees and costs of
the action.
B. The owner or beneficial title holder of the real property may
bring an action pursuant to this section in the superior court in the
county in which the real property is located for such relief as is
required to immediately clear title to the real property as provided
for in the rules of procedure for special actions. This special
action may be brought based on the ground that the lien is forged,
groundless, contains a material misstatement or false claim or is
otherwise invalid[.]
12636 MENKEN v. EMM
June 29, 2005. Menken filed his notice of appeal on July 22,
2005.
On appeal, Menken argues that the district court erred in
finding that it did not have personal jurisdiction over Tomer-
lin; denying his motion to retain in rem jurisdiction; and deny-
ing his motion to amend the Complaint. Tomerlin challenges
the timeliness of Menken’s notice of appeal.
II.
[1] We first address Tomerlin’s argument that Menken’s
appeal is untimely. A notice of appeal “must be filed with the
district clerk within 30 days after the judgment or order
appealed from is entered.” Fed. R. App. P. 4(a)(1)(A). A judg-
ment or order is entered as follows:
(i) if Federal Rule of Civil Procedure 58(a)(1) does
not require a separate document, when the judgment
or order is entered in the civil docket under Federal
Rule of Civil Procedure 79(a); or
(ii) if Federal Rule of Civil Procedure 58(a)(1)
requires a separate document, when the judgment or
order is entered in the civil docket under Federal
Rule of Civil Procedure 79(a) and when the earlier
of these events occurs:
• the judgment or order is set forth on a sep-
arate document, or
• 150 days have run from entry of the judg-
ment or order in the civil docket under Fed-
eral Rule of Civil Procedure 79(a).
Fed. R. App. P. 4(a)(7). Federal Rule of Civil Procedure
58(a)(1) requires the January 27, 2005 Order to be set forth
in a separate document. See Fed. R. Civ. P. 58(a)(1) (“Every
MENKEN v. EMM 12637
judgment and amended judgment must be set forth on a sepa-
rate document,” except for orders disposing of motions which
are not applicable here). Therefore, the 30-day appeals win-
dow to file a notice of appeal began to run when the judgment
or order was entered in the civil docket under Federal Rule of
Civil Procedure 79(a)3 and when the earlier of these two
events occurred: (1) the judgment or order was set forth on a
separate document, or (2) 150 days had run from entry of the
judgment or order in the civil docket.
[2] No separate document was entered following the Janu-
ary 27, 2005 Order. The parties agree that at the time the
judgment was entered, more than 150 days had run from entry
of the January 27, 2005 Order; that is, 153 days ran from the
date of the January 27, 2005 Order and the June 29, 2005
entry of judgment.
[3] The parties dispute the window of time for filing a
notice of appeal with respect to a judgment entered by opera-
tion of Federal Rule of Appellate Procedure 4(a)(7), when
more than 150 days have run from entry of the judgment or
order in the civil docket. Tomerlin argues that if more than
150 days have passed from the entry of the order, the time to
appeal that order has expired. Menken correctly asserts that
under Federal Rule of Appellate Procedure 4(a)(7)’s plain lan-
guage, judgment was entered after 150 days, which then
3
Federal Rule of Civil Procedure 79(a) states in pertinent part:
All papers filed with the clerk, all process issued and returns
made thereon, all appearances, orders, verdicts, and judgments
shall be entered chronologically in the civil docket on the folio
assigned to the action and shall be marked with its file number.
These entries shall be brief but shall show the nature of each
paper filed or writ issued and the substance of each order or judg-
ment of the court and of the returns showing execution of pro-
cess. The entry of an order or judgment shall show the date the
entry is made. When in an action trial by jury has been properly
demanded or ordered the clerk shall enter the word “jury” on the
folio assigned to that action.
12638 MENKEN v. EMM
started the Federal Rule of Appellate Procedure 4(a)(1)(A)
30-day appeals period. In other words, Menken had 180 days
(150 days plus 30 days) from entry of the order on January
27, 2005 in which to appeal.
[4] Menken filed his notice of appeal on July 22, 2005,
which is 176 days from the entry of the January 27, 2005
Order. Menken’s notice of appeal is therefore timely.
III.
A. Standard of Review
We review the district court’s decision to dismiss for lack
of personal jurisdiction de novo. See Pebble Beach Co. v.
Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006). When a defen-
dant moves to dismiss for lack of personal jurisdiction, the
plaintiff bears the burden of demonstrating that the court has
jurisdiction over the defendant. See Harris Rutsky & Co. Ins.
Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1128-29
(9th Cir. 2003). However, this showing requires that the plain-
tiff “make only a prima facie showing of jurisdictional facts
to withstand the motion to dismiss.” Doe v. Unocal Corp.,
248 F.3d 915, 922 (9th Cir. 2001) (internal citations omitted).
Although the plaintiff cannot “simply rest on the bare allega-
tions of its complaint,” Schwarzenegger v. Fred Martin Motor
Co., 374 F.3d 797, 800 (9th Cir. 2004) (quoting Amba Mktg.
Sys., Inc. v. Jobar Int’l, Inc., 551 F.2d 784, 787 (9th Cir.
1977)), uncontroverted allegations in the complaint must be
taken as true. Id. (citing AT & T v. Compagnie Bruxelles Lam-
bert, 94 F.3d 586, 588 (9th Cir. 1996)). The court resolves all
disputed facts in favor of the plaintiff. Pebble Beach Co., 453
F.3d at 1154.
B. Legal Framework for Personal Jurisdiction Analysis
We first outline the legal framework for our personal juris-
diction analysis.
MENKEN v. EMM 12639
When no federal statute specifically defines the
extent of personal jurisdiction, we look to the law of
the state where the district court sits — in this case,
Arizona. Arizona’s long-arm rule permits the exer-
cise of personal jurisdiction to the extent allowed by
the due process clause of the United States Constitu-
tion.
CE Distrib., LLC v. New Sensor Corp., 380 F.3d 1107, 1110
(9th Cir. 2004) (internal citations and quotation signals omit-
ted).
[5] A court may exercise personal jurisdiction over a defen-
dant consistent with due process only if he or she has “certain
minimum contacts” with the relevant forum “such that the
maintenance of the suit does not offend ‘traditional notions of
fair play and substantial justice.’ ” Int’l Shoe Co. v. Washing-
ton, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311
U.S. 457, 463 (1940)). Unless a defendant’s contacts with a
forum are so substantial, continuous, and systematic that the
defendant can be deemed to be “present” in that forum for all
purposes, a forum may exercise only “specific” jurisdiction
— that is, jurisdiction based on the relationship between the
defendant’s forum contacts and plaintiff’s claims. The parties
agree that general jurisdiction does not exist here; only spe-
cific jurisdiction is at issue.
We analyze specific jurisdiction according to a three-prong
test:
(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
privilege of conducting activities in the forum,
thereby invoking the benefits and protections of its
laws;
12640 MENKEN v. EMM
(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 rea-
sonable.
Schwarzenegger, 374 F.3d at 802 (quoting Lake v. Lake, 817
F.2d 1416, 1421 (9th Cir. 1987)). “The plaintiff bears the bur-
den of satisfying the first two prongs of the test. If the plain-
tiff fails to satisfy either of these prongs, personal jurisdiction
is not established in the forum state.” Id. (internal citation
omitted). On the other hand, if the plaintiff succeeds in satis-
fying both of the first two prongs, “the burden then shifts to
the defendant to ‘present a compelling case’ that the exercise
of jurisdiction would not be reasonable.” Id. (quoting Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 476-78 (1985)).
[6] We next elaborate on the three prongs of our personal
jurisdiction analysis: (1) purposeful availment and direction;
(2) forum-related conduct; and (3) reasonableness.
1. Purposeful Availment and Direction
[7] The proper application of the first prong is contested in
this case. This prong “includes both purposeful availment and
purposeful direction. It may be satisfied by purposeful avail-
ment of the privilege of doing business in the forum; by pur-
poseful direction of activities at the forum; or by some
combination thereof.” Yahoo! Inc. v. La Ligue Contre Le
Racisme Et L’Antisemitisme, 433 F.3d 1199, 1206 (9th Cir.
2006) (en banc). Yahoo! Inc. outlined the contours of pur-
poseful availment and direction in tort and contract cases:
We have typically treated “purposeful availment”
somewhat differently in tort and contract cases. In
tort cases, we typically inquire whether a defendant
MENKEN v. EMM 12641
“purposefully directs his activities” at the forum
state, applying an “effects” test that focuses on the
forum in which the defendant’s actions were felt,
whether or not the actions themselves occurred
within the forum. See Schwarzenegger, 374 F.3d at
803 (citing Calder v. Jones, 465 U.S. 783, 789-90,
104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984)). By con-
trast, in contract cases, we typically inquire whether
a defendant “purposefully avails itself of the privi-
lege of conducting activities” or “consummates a
transaction” in the forum, focusing on activities such
as delivering goods or executing a contract. See
Schwarzenegger, 374 F.3d at 802.
Id. (brackets omitted).
Menken argues that the district court erred by failing to
employ the “effects test” for tort claims as set forth in Calder
v. Jones, 465 U.S. 783 (1984). In Calder, a California-based
entertainer sued for an allegedly defamatory article published
by defendants. The article had been written and edited in Flor-
ida, and the defendants had few contacts with California. The
Court upheld the exercise of personal jurisdiction in Califor-
nia because the defendants knew that the article would have
an effect there. Calder held that the defendants had not
engaged in “mere untargeted negligence”; rather, their “inten-
tional, and allegedly tortious, actions were expressly aimed at
California.” Calder, 465 U.S. at 789 (brackets omitted).
[8] We construe Calder’s effects test to impose three
requirements: “the defendant allegedly must have (1) commit-
ted an intentional act, (2) expressly aimed at the forum state,
(3) causing harm that the defendant knows is likely to be suf-
fered in the forum state.” Yahoo! Inc., 433 F.3d at 1206.
In a specific jurisdiction inquiry, we consider the extent of
the defendant’s contacts with the forum and the degree to
which the plaintiff’s suit is related to those contacts. “A
12642 MENKEN v. EMM
strong showing on one axis will permit a lesser showing on
the other. A single forum state contact can support jurisdiction
if the cause of action arises out of that particular purposeful
contact of the defendant with the forum state.” Id. at 1210(internal citation, quotation signals, ellipses, and brackets
omitted).
2. Forum-Related Conduct
Under the second prong of our personal jurisdiction analy-
sis, the plaintiff’s claim must be one which arises out of or
relates to the defendant’s forum-related activities. In deter-
mining whether Menken’s claims arise out of Tomerlin’s
forum-related conduct, “the Ninth Circuit follows the ‘but for’
test.” Myers v. Bennett Law Offices, 238 F.3d 1068, 1075 (9th
Cir. 2001). Hence, Menken must show that he would not have
suffered an injury “but for” Tomerlin’s forum-related con-
duct.
3. Reasonableness
The third prong examines whether the exercise of the juris-
diction would be reasonable.
We consider the following seven factors when mak-
ing this determination: (1) the extent of the defen-
dants’ purposeful interjection into the forum state’s
affairs; (2) the burden on the defendant of defending
in the forum; (3) the extent of conflict with the sov-
ereignty of the defendants’ 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 convenient and effective relief; and (7) the
existence of an alternative forum.
CE Distrib., 380 F.3d at 1112 (internal citation omitted).
MENKEN v. EMM 12643
With this framework in mind, we turn to Menken’s claims
against Tomerlin.4
IV.
A. Purposeful Availment and Direction: The “Effects
Test”
[9] The district court recited our three-prong test for per-
sonal jurisdiction, but did not clearly indicate that it was
employing the “effects test” as to the first prong. Because
Menken’s Complaint alleges negligence, wrongful interfer-
ence with contractual relations, civil extortion, and a violation
of A.R.S. § 33-420, his cause of action arises primarily in tort;
therefore, Calder’s “effect’s test” is the proper framework for
the first prong’s purposeful availment and direction analysis.
Under this analysis, Menken has alleged sufficient facts to
satisfy the three requirements of the “effects test.” The court
addresses each of the test’s three elements in turn.
4
Tomerlin claims that Menken waived the application of the personal
jurisdiction “effects test” on appeal because he did not raise it before the
district court. We disagree and conclude that Menken sufficiently raised
the issue below for the district court to rule on it. See Arizona v. Compo-
nents Inc., 66 F.3d 213, 217 (9th Cir. 1995) (“Although there is no bright-
line rule to determine whether a matter has been raised below, a workable
standard is that the argument must be raised sufficiently for the trial court
to rule on it.”) (citation, quotation signals, and ellipses omitted). For
example, Menken urged the district court to apply the Ninth Circuit’s per-
sonal jurisdiction analysis set forth in Myers v. Bennett Law Offices, 238
F.3d 1068 (9th Cir. 2001). See Pl’s. Resp. to Defs.’ Mot. to Dismiss for
Lack of Personal Jurisdiction at 3. Myers sets forth the “effects test” for
personal jurisdiction analysis. See 238 F.3d at 1072 (“The Supreme Court
has established that the purposeful availment prong of the personal juris-
diction analysis can be met if a defendant’s ‘intentional conduct in the for-
eign state was calculated to cause injury to the plaintiff in the forum state.’
Calder v. Jones, 465 U.S. 783, 791, 104 S. Ct. 1482, 79 L. Ed.2d 804(1984).”) (brackets omitted). Because Menken sufficiently raised the issue
below for the district court to rule on it, he has not waived his argument
that the “effects test” is the applicable framework for our personal juris-
diction analysis.
12644 MENKEN v. EMM
1. Intentional Act
[10] Menken alleges that Tomerlin “committed an inten-
tional act” by intentionally interfering with his contractual
relation with a third party for the pending sale of his property;
that Tomerlin demanded a sum of money in excess of the law-
ful amount due under the judgment; and that Tomerlin inten-
tionally violated A.R.S. § 33-420 by recording an invalid lien.
2. Expressly Aimed at Arizona
[11] Second, Menken alleges that Tomerlin’s intentional
conduct was expressly aimed at the forum state because the
act of “trying to extract the judgment payoff” was aimed at
tying up Menken’s real property located in Arizona. The
requirement is satisfied “when the defendant is alleged to
have engaged in wrongful conduct targeted at a plaintiff
whom the defendant knows to be a resident of the forum
state.” Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1111 (9th
Cir. 2002) (internal citation and quotation signals omitted).
Menken sufficiently alleges that Tomerlin engaged in wrong-
ful conduct targeted at Menken, whom Tomerlin knew to be
a resident of Arizona.
3. Causing Harm Tomerlin Knew Would be Suffered in
Arizona
[12] Finally, Menken alleged that the action caused harm
that Tomerlin knew was likely to be suffered in Arizona. The
Complaint alleges that Menken told Tomerlin that title to his
Arizona property was clouded by the allegedly invalid judg-
ment lien and that he could not sell the property with the lien
in place. When Tomerlin improperly recorded the lien in Ari-
zona and then refused to accept the legally owed amount as
full satisfaction of the lien, Tomerlin caused harm knowing
that it would be suffered in Arizona.
MENKEN v. EMM 12645
[13] Menken has sufficiently alleged the three requirements
of the “effects test” and has met his burden as to the first
prong.
B. Forum-Related Conduct
[14] The second prong of the analysis is easily met.
Menken alleges that he would not have suffered an injury “but
for” Tomerlin’s forum-related conduct. Assuming Menken’s
allegations as true, Menken was unable to close on the sale of
his Arizona property because Tomerlin recorded the lien on
the property, demanded a sum in excess of that lawfully due
under the Nevada judgment, and refused to remove the lien.
Menken’s tort claims arise out of Tomerlin’s demand for an
amount greater than awarded by the Nevada judgment in Ari-
zona.
[15] Although Tomerlin’s alleged contacts with Arizona
are not extensive, a “single forum state contact can support
jurisdiction if the cause of action arises out of that particular
purposeful contact of the defendant with the forum state.”
Yahoo! Inc., 433 F.3d at 1210 (internal citation, quotation sig-
nals, and ellipses omitted). Menken has satisfied the first two
prongs; the burden thus shifts to Tomerlin to show that the
exercise of jurisdiction would not be reasonable.
C. Reasonableness
We next balance the seven reasonableness factors:
(1) the extent of the defendant’s purposeful interjec-
tion 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 defen-
dants’ state; (4) the forum state’s interest in adjudi-
cating the dispute; (5) the most efficient judicial
resolution of the controversy; (6) the importance of
the forum to the plaintiff’s interest in convenient and
12646 MENKEN v. EMM
effective relief; and (7) the existence of an alterna-
tive forum.
CE Distrib., 380 F.3d at 1112 (citation omitted).
[16] First, Tomerlin argues there was no purposeful inter-
jection because the dispute originated in Nevada, where
Menken failed to satisfy the judgment against him, and that
Tomerlin has no past or ongoing connection with Arizona.
Menken disagrees and argues that the issue of whether
Tomerlin has a valid Nevada judgment is not in dispute;
rather, the genesis of the dispute is the action that Tomerlin
took in Arizona: improperly demanding payment in excess of
the judgment and tying up Menken’s Arizona property in
order to extract more than the amount of the Nevada judg-
ment. Tomerlin’s counsel sent several letters to Menken
regarding the payoff amount after recording the judgment in
Maricopa County, but it is unclear the extent to which these
actions involve the “forum state’s affairs.” On balance, the
extent of Tomerlin’s purposeful interjection into Arizona’s
affairs is neither particularly great, nor de minimis. This factor
appears to be neutral.
[17] Second, Tomerlin argues she would be unfairly bur-
dened by having to defend against the case in Arizona
because she does not regularly travel to Arizona, visiting once
every three years, and that it would be inconvenient and
expensive to litigate in Arizona. Menken argues that it is not
especially burdensome because Arizona borders Nevada,
Tomerlin’s counsel was admitted pro hac vice to conduct a
debtor’s examination of Menken, and that modern technology
and transportation mitigate any inconvenience to Tomerlin.
Undoubtably, it would be more burdensome for Tomerlin to
litigate in Arizona than in neighboring Nevada, where
Tomerlin resides and has her principal place of business.
“Nevertheless, with the advances in transportation and tele-
communications and the increasing interstate practice of law,
any burden is substantially less than in days past.” CE Dis-
MENKEN v. EMM 12647
trib., 380 F.3d at 1112. Although the inconvenience does not
appear to be severely burdensome, this factor weighs slightly
in favor of Tomerlin.
[18] Third, the parties agree that there is no conflict
between Nevada and Arizona regarding sovereignty. This fac-
tor weighs in favor of Menken.
[19] Fourth, “Arizona has a strong interest in protecting its
residents from torts that cause injury within the state, and in
providing a forum for relief.” Brainerd v. Governors of the
Univ. of Alberta, 873 F.2d 1257, 1260 (9th Cir. 1989). This
factor weighs in favor of Menken.
[20] The fifth factor concerns the efficiency of the forum.
“In evaluating this factor, we have looked primarily at where
the witnesses and the evidence are likely to be located.” Core-
Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1489 (9th Cir.
1993). Tomerlin argues that Nevada is more efficient because
Tomerlin, her corporation, and attorneys are all Nevada resi-
dents so that most of the party witnesses are Nevada residents.
Menken claims that all of the evidence and witnesses relating
to his damages (regarding the loss of sale of his home) are in
Arizona. Because witnesses are located in both Nevada and in
Arizona, neither forum has a clear efficiency advantage with
respect to witnesses. On the current record, it is difficult to
definitively determine whether Arizona would be the most
efficient forum for resolution of the dispute. On balance, this
factor is neutral.
[21] The convenience and effectiveness of relief for the
plaintiff comprise the sixth factor. “[I]n this circuit, the plain-
tiff’s convenience is not of paramount importance.” Dole
Food Co., Inc. v. Watts, 303 F.3d 1104, 1116 (9th Cir. 2002).
Menken argues that Arizona may be the only forum that can
hear his claim regarding a violation of the Arizona statute,
A.R.S. § 33-420; therefore, he may not get effective relief in
12648 MENKEN v. EMM
another forum. Although this factor is not given much weight,
it favors Menken.
[22] The seventh and final factor is availability of an alter-
nate forum. Menken bears the burden of proving the unavaila-
bility of an alternative forum. Core-Vent Corp., 11 F.3d at
1490. Menken argues that his fourth cause of action, a viola-
tion of A.R.S. § 33-420, can only be brought in Arizona. The
statute reads in pertinent part:
The owner or beneficial title holder of the real prop-
erty may bring an action pursuant to this section in
the superior court in the county in which the real
property is located for such relief as is required to
immediately clear title to the real property as pro-
vided for in the rules of procedure for special
actions. This special action may be brought based on
the ground that the lien is forged, groundless, con-
tains a material misstatement or false claim or is oth-
erwise invalid.
A.R.S. § 33-420B (emphasis added). Assuming as true that
Menken asserted a claim to quiet title under § 33-420B, then
it appears there is no alternative forum for that portion of his
Complaint.
[23] Weighing these seven considerations, the balance of
factors does not favor Tomerlin. Tomerlin has not presented
a compelling case that the exercise of jurisdiction would be
unreasonable. See Panavision Int’l, L.P. v. Toeppen, 141 F.3d
1316, 1324 (9th Cir. 1998) (“[W]e conclude that although
some factors weigh in [defendant’s] favor, he failed to present
a compelling case that the district court’s exercise of jurisdic-
tion in California would be unreasonable.”); Caruth v. Int’l
Psychoanalytical Ass’n, 59 F.3d 126, 129 (9th Cir. 1995)
(“Neither party is clearly favored in the final balance. How-
ever, given the closeness of the factors, we conclude that
[defendant] has not presented a ‘compelling case’ that exer-
MENKEN v. EMM 12649
cising jurisdiction over it would be unreasonable.”). On bal-
ance, Tomerlin has not presented a compelling case that the
exercise of jurisdiction would not comport with fair play and
substantial justice and would thus be unreasonable.
[24] We wish to emphasize what we are not holding: the
simple domestication of a foreign judgment in Arizona, stand-
ing alone, is unlikely sufficient to confer personal jurisdiction
on the judgment creditor. Tomerlin allegedly did more,
domesticating the judgment and then attempting to extract a
greater payment than that lawfully due under the Nevada
judgment. It is the alleged attempt to leverage a payment in
excess of that lawfully due that confers specific jurisdiction
over Tomerlin.
V.
[25] With respect to Menken’s tort claims against Tomer-
lin, the district court had personal jurisdiction over Tomerlin.
Accordingly, we REVERSE the district court’s holding that it
lacked personal jurisdiction over Tomerlin and REMAND for
further proceedings consistent with this opinion.5
REVERSED AND REMANDED.
BYBEE, Circuit Judge, concurring in part and concurring in
the judgment:
I fully agree with Judge Seabright’s opinion with respect to
the timeliness of Menken’s appeal. I also concur in the major-
ity’s judgment with respect to personal jurisdiction: Menken
5
Given our disposition on personal jurisdiction, we do not reach
Menken’s remaining issues on appeal, including his challenge to the
denial of his motions to retain in rem jurisdiction and to amend the Com-
plaint.
12650 MENKEN v. EMM
has alleged sufficient facts that, if true, show that Tomerlin
“ ‘purposefully directed’ [her] activities” at Menken in Ari-
zona, and “the litigation results from alleged injuries that
‘arise out of or relate to’ those activities.” Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 472 (1985) (quoting Keeton v.
Hustler Magazine, Inc., 465 U.S. 770, 774 (1984), and Heli-
copteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,
414 (1984)). To my mind, that should end the inquiry.
I recognize that the Supreme Court has stated that “[o]nce
it has been decided that a defendant purposefully established
minimum contacts within the forum State, these contacts may
be considered in light of other factors to determine whether
the assertion of personal jurisdiction would comport with ‘fair
play and substantial justice,’ ” Burger King, 471 U.S. at 476(quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 320
(1945)), and that the Court has listed several considerations.
These considerations, the Court said, “sometimes serve to
establish the reasonableness of jurisdiction upon a lesser
showing of minimum contacts than would otherwise be
required” and may also “defeat the reasonableness of jurisdic-
tion even if the defendant has purposefully engaged in forum
activities.” Id. at 477. We have virtually codified these con-
siderations into seven numbered “reasonableness” factors.
See, e.g., CE Distrib., LLC v. New Sensor Corp., 380 F.3d
1107, 1110 (9th Cir. 2004); Harris Rutsky & Co. Ins. Serv.,
Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1132 (9th Cir.
2003); Caruth v. Int’l Psychoanalytical Ass’n, 59 F.3d 126,
128-29 (9th Cir. 1995); Core-Vent Corp. v. Nobel Indus., 11
F.3d 1482, 1487-88 (9th Cir. 1993). Judge Seabright’s opin-
ion faithfully considers each of these factors.
My objection is that we can take up these “reasonableness”
factors only after we have already established that the defen-
dant purposefully established minimum contacts with the
forum, and that the contacts are related to the cause of action.
I do not see how, having made this determination, the forum’s
exercise of personal jurisdiction over the defendant is subject
MENKEN v. EMM 12651
to defeasance just because we think that litigation in the
forum might be burdensome to the defendant, or that there
might be a more convenient forum, or that the forum might
not have as great an interest in resolving the litigation as some
other forum. None of these factors goes to the question of the
forum’s power over the defendant—the right to issue a judg-
ment that is enforceable not only in the forum’s own courts,
but also in the courts of every other State. See U.S. CONST. art.
IV, § 1 (Full Faith and Credit Clause).
These “reasonableness” factors are better suited to claims
of forum non conveniens, which is also based on “consider-
ations of convenience, fairness, and judicial economy.” Sino-
chem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 127
S. Ct. 1184, 1187 (2007).1 See 28 U.S.C. § 1404(a) (“For the
convenience of parties and witnesses, in the interest of justice,
a district court may transfer any civil action to any other dis-
trict or division where it might have been brought.”). Indeed,
the seven reasonableness factors parallel the private and pub-
lic interests that a district court must weigh when considering
a claim of forum non conveniens. See Piper Aircraft Co. v.
Reyno, 454 U.S. 235, 241 (1981); Gulf Oil Corp. v. Gilbert,
330 U.S. 501, 508-09 (1947).2
1
The only case in which the Supreme Court has held that these factors
determined the question of personal jurisdiction was in a suit between two
foreign corporations in which the Court divided evenly over whether the
minimum contacts were sufficient. See Asahi Metal Indus. Co., Ltd. v.
Superior Court of California, 480 U.S. 102 (1987). The defendant might
just as easily have invoked forum non conveniens. See Sinochem Int’l Co.
Ltd. v. Malaysia Int’l Shipping Corp., 127 S. Ct. 1184 (2007); Piper Air-
craft Co. v. Reyno, 454 U.S. 235 (1981).
2
Private factors in the forum non conveniens balancing test include:
“relative ease of access to sources of proof; availability of compulsory
process for attendance of unwilling, and the cost of obtaining attendance
of willing, witnesses; possibility of view of premises, if view would be
appropriate to the action; and all other practical problems that make trial
of a case easy, expeditious and inexpensive.” Gulf Oil Corp., 330 U.S. at
508. Public factors include: “administrative difficulties from court conges-
12652 MENKEN v. EMM
I recognize that I am swimming against the tide, but I
refuse to proceed without making my objections known. I
respectfully concur in the opinion in part, and I fully concur
in the judgment.
tion; the ‘local interest in having localized controversies decided at home’;
the interest in having the trial of a diversity case in a forum that is at home
with the law that must govern the action; the avoidance of unnecessary
problems in conflict of laws, or in the application of foreign law; and the
unfairness of burdening citizens in an unrelated forum with jury duty.”
Piper Aircraft Co., 454 U.S. at 241 (quoting Gulf Oil Corp., 330 U.S. at
509).