Urbanski v. National Football League C/W 61732 ( 2015 )

 money he was using for tipping. At approximately 4:30 a.m., two female
dancers began fighting over tip money, giving rise to some sort of melee.
Although there are several contradictory versions of what exactly
occurred, these disputed facts are inapplicable to the issues on appeal. In
the end, after Jones and his entourage had been removed from the club,
club security officers, Aaron Cudworth and Thomas Urbanski, were both
shot by Arvin Edwards.' Cudworth and Urbanski survived the shooting.
Months after the shootings, Cudworth, Urbanski, and
Urbanski's wife filed separate complaints against Jones and several other
defendants in district court. Additionally, the Urbanskis filed claims
against the National Football League (NFL) asserting causes of action for
negligent hiring, retention and supervision, and respondeat superior. The
Cudworth and Urbanski cases were consolidated.
Prior to trial, the district court dismissed the NFL for lack of
personal jurisdiction, finding that it possessed neither specific nor general
jurisdiction over the NFL. The Urbanskis now appeal this dismissal.
During the trial, the district court denied several of Jones'
proposed jury instructions. These included instructions regarding
defaulted defendants, three instructions regarding civil conspiracy,
1 Therelationship between Edwards and Jones is unclear. It was
alleged that Edwards was Jones' friend, and that he shot Cudworth as a
favor to Jones, and later solicited money from Jones for the shooting.
However, when Jones initially talked to police he did not reference
Edwards. Jones later cooperated in the investigation against Edwards in
exchange for a plea deal in his criminal case. Jones maintained that he
had never met Edwards and that he was a victim of extortion. Ultimately,
while cooperating with LVMPD, Jones wired money to Edwards through
intermediaries, allowing LVMPD to arrest Edwards.
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intentional infliction of emotional distress (TIED), battery, assault, and
"[w]ords alone." Accordingly, Jones objected to the jury instructions used
instead.
Alter the trial, the jury found Jones liable for all causes of
action asserted by Cudworth, including (1) assault, (2) battery, (3) false
imprisonment, and (4) TIED, awarding $1,000,500 in compensatory
damages and $300,000 in punitive damages. Regarding the Urbanskis,
the jury found Jones not liable for assault or battery, but found Jones
liable for TIED. The jury awarded the Urbanskis damages as follows:
• past medical expenses: $1,728,518.79
• past care: $1,101,096.65
• future care: $863,320.09 2
• past lost income: $142,625.00
• future lost income: $424,858.00
• household services: $204,862,00
• past pain and suffering: $3,000,000.00
• future pain and suffering: $3,000,000.00.
Additionally, the jury awarded Kathleen Urbanski $750,000 for loss of
consortium, but did not award the Urbanskis any punitive damages.
Following both the initial verdict and the punitive damages verdict, Jones
polled the jurors. The jury was dismissed on June 15, 2012.
2 Thefuture care amount was added by the district court on a post-
verdict motion to modify the jury verdict. The district court found that
Jones had stipulated to the amount of future care, as determined by the
worker's compensation carrier, and that the amount was inadvertently
omitted from the verdict form.
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Shortly thereafter, Jones filed a countermotion for remittitur,
or in the alternative a motion for a new trial, in response to the Urbanskis'
motion for additur. Then Jones filed a nearly identical motion for
remittitur, or in the alternative a motion for a new trial. The district court
denied both Jones' countermotion and motion. Jones now appeals the jury
verdict.
The district court did not err in dismissing the NFL for lack of personal
jurisdiction
On appeal, the Urbanskis argue that the district court
possessed both general and specific jurisdiction over the NFL. We
disagree.
Standard of review
"[The plaintiff has the burden of introducing competent
evidence of essential facts which establish a prima facie showing that
personal jurisdiction exists." Trump v. Eighth Judicial Dist. Court, 109
Nev. 687, 692, 857 P.2d 740, 743 (1993) (internal quotations omitted).
Thus, the district court does not act as a fact finder, but rather "accepts
properly supported proffers of evidence by a plaintiff as true." Id. at 693,
857 P.2d at 744 (internal quotations omitted). "Once a prima facie
showing is made, the plaintiff bears the burden at trial to prove
jurisdiction by a preponderance of evidence." Viega GmbH v. Eighth
Judicial Dist. Court, 130 Nev. , 328 P.3d 1152, 1156 (2014). "As a
question of law, the district court's determination of personal jurisdiction
is reviewed de novo . . . ." Id.
"To obtain jurisdiction over a non-resident defendant, a
plaintiff must show: (1) that the requirements of the state's long-arm
statute have been satisfied, and (2) that due process is not offended by the
exercise of jurisdiction." Trump, 109 Nev. at 698, 857 P.2d at 747.
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Nevada's long-arm statute, NRS 14.065, extends to the outer reaches of
due process, therefore this seemingly two,step analysis is collapsed into a
single inquiry regarding whether a court's exercise of jurisdiction over a
nonresident defendant would offend due process. Trump, 109 Nev. at 698,
857 P.2d at 747.
"Due process requires minimum contacts between the
defendant and the forum state such that the maintenance of the suit does
not offend traditional notions of fair play and substantial justice." Id.
(internal quotations omitted). "The defendant must have sufficient
contacts with the forum such that he or she could reasonably anticipate
being haled into court there." Id. at 699, 857 P.2d at 748 (internal
quotations omitted). "[P]ersonal jurisdiction occurs in two forms general
and specific." Dogra v. Liles, 129 Nev. , 314 P.3d 952, 955 (2013).
The district court did not err in finding that it lacked general
jurisdiction over the NFL
"A court may exercise general jurisdiction over a foreign
company when its contacts with the forum state are so 'continuous and
systematic as to render [it] essentially at home in the forum State."
Viega, 130 Nev. at , 328 P.3d at 1156-57 (alteration in original)
(quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. ,
, 131 S. Ct. 2846, 2851 (2011)); see also Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984); Perkins v. Benguet
Consol. Mining Co., 342 U.S. 437, 445 (1952).
To determine whether a nonresident defendant's contacts are
sufficiently substantial, continuous, and systematic, courts generally
consider their "'[longevity, continuity, volume, economic impact, physical
presence, and integration into the state's regulatory or economic
markets." Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1224
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(9th Cir. 2011) (alteration in original) (quoting Tuazon v. R.J. Reynolds
Tobacco Co., 433 F.3d 1163, 1172 (9th Cir. 2006)). The standard for
general jurisdiction "is an exacting standard, as it should be, because a
finding of general jurisdiction permits a defendant to be haled into court in
the forum state to answer for any of its activities anywhere in the world."
Schtvarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir.
2004).
Here, the Urbanskis argue that the NFL's contacts with
Nevada are sufficiently continuous and systematic, such that it is
essentially at home in Nevada. The Urbanskis point to several NFL
operations, including (1) the NFL's merchandising "stream of commerce"
activities in Nevada; (2) the NFL's interactive website, including paid-for
fantasy football; (3) the NFL network and DirecTV "Sunday Ticket"
television products; (4) the NFL's recruiting of Nevada players; and (5) the
NFL's "Punt, Pass and Kick" competition. The NFL does not dispute the
existence of the facts asserted by the Urbanskis; rather, the dispute lies in
whether such facts constitute a continuous and systematic presence in
Nevada.
The seminal general jurisdiction case is Perkins v. Ben guet
Consolidated Mining Co., 342 U.S. 437 (1952). See Goodyear, 564 U.S. at
131 S. Ct. at 2856. In Perkins, the Supreme Court determined that an
Ohio court was entitled to exercise general jurisdiction over a Philippine
corporation when the corporation's president maintained an office in Ohio
and directly conducted its general business activities on behalf of the
company from Ohio. 342 U.S. at 447-48. These activities included
maintaining company files, carrying on correspondence, engaging an Ohio
bank to act as a transfer agent, distributing salary checks, and holding
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directors' meetings in Ohio. Id. In short, the corporation's president
"'ha[d] been carrying on in Ohio a continuous and systematic, but limited,
part of its general business"—which was sufficient to warrant the exercise
of personal jurisdiction over the Philippine corporation. Id. at 438.
On the other hand, in Helicopteros, a Colombian corporation,
which was in the business of providing helicopter transportation
throughout South America, was sued in a Texas state court for claims
arising out of a helicopter crash that occurred in Peru. 466 U.S. at 409-11.
Prior to the crash in Peru, the Colombian corporation had various
ancillary contacts with Texas prior to the filing of the suit, such as holding
several contract negotiations in Texas, holding pilot training courses in
Texas, and purchasing helicopter parts in Texas valued at approximately
$4 million Id. at 410-11. The Supreme Court concluded that Texas courts
could not exercise jurisdiction over the foreign helicopter service
corporation largely because the corporation had never sold products or
solicited business in Texas, never maintained an office or other
establishment in Texas, and had never performed any of its primary
business operations in Texas. Id. at 418 ("[M]ere purchases [made in
Texas], even if occurring at regular intervals, are not enough to warrant a
State's assertion of [general] jurisdiction over a nonresident corporation in
a cause of action not related to those purchase transactions."). Similarly,
in Goodyear, the Supreme Court concluded that North Carolina courts
lacked general jurisdiction over a tire manufacturer because "[u]nlike the
defendant in Perkins, whose sole wartime business activity was conducted
in Ohio, [Goodyear's foreign subsidiary was] in no sense at home in North
Carolina." 564 U.S. at , 131 S. Ct. at 2857.
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NFL's merchandising activities in Nevada
The Urbanskis argue that the NFL has the exclusive right to
direct the sale of NFL-related merchandise in any location, including
Nevada. Thus, the Urbanski's argue that the NFL intentionally directs its
products into Nevada and directly profits from those sales.
However, the United States Supreme Court recently clarified
that the "now of a manufacturer's products into the forum . . . may
bolster an affiliation germane to specific jurisdiction," but not general
jurisdiction. Goodyear, 564 U.S. at , 131 S. Ct. at 2855; see also
Stabilisierungsfonds Fur Wein u. Kaiser Stahl Wine Distribs. Pty. Ltd., 647
F.2d 200, 203 n.5 (D.C. Cir. 1981) (defendants' marketing arrangements,
although "adequate to permit litigation of claims relating to [their]
introduction of . . . wine into the United States stream of commerce . . .
would not be adequate to support general, all purpose adjudicatory
authority" (internal quotations omitted)).
Thus, the Urbanskis' use of the term "stream of commerce" is
misapplied here because (1) they are not arguing for specific jurisdiction,
and (2) this is not a situation in which a good reached an untargeted
forum state. See Goodyear, 564 U.S. at , 131 S. Ct. at 2856 ("Under the
sprawling view of general jurisdiction urged by respondents . . . any
substantial manufacturer or seller of goods would be amenable to suit, on
any claim for relief, wherever its products are distributed"). Thus, in light
of the Supreme Court's recent clarification on this point, we conclude that
this factor does not support a finding of general jurisdiction. Id. ("A
corporation's continuous activity of some sorts within a state . . . is not
enough to support the demand that the corporation be amenable to suits
unrelated to that activity." (internal quotations omitted)).
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The NFL's tvebsite
The Urbanskis argue that the NFL has availed itself of
jurisdiction via its "interactive" website. See Cybersell, Inc. v. Cybersell,
Inc., 130 F.3d 414, 418 (9th Cir. 1997). The Urbanskis argue that the
NFL's website is sufficiently interactive to allow Nevada courts to exercise
jurisdiction, pointing to a number of the website's interactive and
commercial features.
But similar to the "stream of commerce" issue above, the
Urbanskis' reliance on the NFL's website, regardless of the level of
interactivity, is misplaced because courts have only considered a
defendant's website when determining whether it has specific jurisdiction
over the defendant. See, e.g., Mavrix Photo, 647 F.3d at 1227 (explaining
that the Zippo sliding-scale approach, the primary test for assessing
jurisdiction from a website, 'should be of little value in a general
jurisdiction analysis" (quoting 4A Charles Alan Wright & Arthur R.
Miller, Federal Practice & Procedure § 1073.1, at 331 (3d ed. 2002)));
Revell U. Lidov, 317 F.3d 467, 471 (5th Cir. 2002) (Zippo test "is not well
adapted to the general jurisdiction inquiry, because even repeated
contacts with forum residents by a foreign defendant may not constitute
the requisite substantial, continuous and systematic contacts required for
a finding of general jurisdiction"); Cybersell, 130 F.3d at 418.
Essentially, if we were "[t]o permit the exercise of general
jurisdiction based on the accessibility in the forum of a non-resident
interactive website [such a conclusion] would expose most large media
entities to nationwide general jurisdiction." Mavrix Photo, 647 F.3d at
1227. This would be entirely "inconsistent with the constitutional
requirement that the continuous corporate operations within a state be so
substantial and of such a nature as to justify suit against [the nonresident
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defendant] on causes of action arising from dealings entirely distinct from
those activities." Id. (internal quotations omitted). As a result, this factor
does not support a finding of general jurisdiction.
The NFL Network and DirecTV Sunday Ticket
The Urbanskis argue that the NFL's contract negotiations to
deliver television programming directly into Nevada homes and
businesses, coupled with the NFL's revenues from such programming is
sufficient to trigger general jurisdiction.
In response, the NFL argues that several courts have
considered similar arguments, and have rejected the idea that a television
broadcast can establish general jurisdiction. See Sullivan v. Tagliabue,
785 F. Supp. 1076, 1080 (D.R.I. 1992) ("'[W]here the league itself has no
continuous and systematic general business contacts with the forum, and
the asserted cause of action is entirely unrelated to telecasts' or ticket
sales, these transactions themselves 'form too slippery a foothold' to
establish [general] personal jurisdiction over the [NFL]." (alterations in
original) (internal quotations omitted) (quoting DonateIli v. Nat'l Hockey
League, 893 F.2d 459, 471 (1st Cir. 1990))); Zimmerman v. U.S. Football
League, 637 F. Supp. 46, 48 (D. Minn. 1986) ("Where a plaintiffs cause of
action does not arise from television broadcasts into a state, the
broadcasts do not constitute sufficient contacts for personal jurisdiction.").
We agree with the NFL.
Much like with a defendant's website, subjecting a business to
general jurisdiction solely based on national television broadcasts would
.
``expose most large media entities to nationwide general jurisdiction." See
Mavrix Photo, 647 F.3d at 1227. Such a finding would be inconsistent
with the constitutional requirement that a defendant's operations be so
"continuous and systematic as to render [it] essentially at home in the
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forum State." Goodyear, 564 U.S. at , 131 S. Ct. at 2851 (internal
quotations omitted). As a result, we conclude that this factor does not
support a finding of general jurisdiction.
NFL's recruiting activities and "Punt, Pass and Kick"
competition
The Urbanskis argue that scouts from virtually every NFL
team have traveled and continue to travel to Nevada to recruit future NFL
players from Nevada's university teams. Additionally, the Urbanskis
point to the NFL's annual "Punt, Pass and Kick" competition located in
Mesquite and Las Vegas.
Here, these activities may help support a finding of general
jurisdiction, but "engaging in commerce with residents of the forum state
is not in and of itself the kind of activity that approximates physical
presence within the state's borders." Bancroft & Masters, Inc. v. Augusta
Nat'l Inc., 223 F.3d 1082, 1086 (9th Cir. 2000). This case is similar to
Sullivan, 785 F. Supp. 1076, in which an owner of the New England
Patriots sued the NFL in Rhode Island challenging the NFL's alleged
block of the sale of a portion of the franchise. Id. at 1077-78. The court
determined that the NFL's contacts were not sufficiently continuous and
systematic in Rhode Island, even where the NFL (1) maintained a line of
credit with a Rhode Island bank, (2) regulated an NFL franchise's training
camp held in Rhode Island, (3) had players and coaches who traveled
through Rhode Island, (4) sold radio and television broadcasting rights
within Rhode Island, (5) sold merchandise within Rhode Island, and (6)
lobbied the Rhode Island legislature. Id. at 1079-81.
Thus, we conclude that if the NFL's in-state activities were
coupled with more substantial contacts, they could support a finding of
general jurisdiction. But in this case, there are no facts similar to those in
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Perkins such that the NFL maintained an approximate physical presence
and would essentially be "at home" in Nevada. See Goodyear, 564 U.S. at
131 S. Ct. at 2857. In light of all of the NFL's contacts with the State
of Nevada, we hold that the district court did not err in ruling that it did
not have general jurisdiction over the NFL. 3
The district court did not err in finding that it lacked specific
jurisdiction over the NFL
"Unlike general jurisdiction, specific jurisdiction is proper only
where 'the cause of action arises from the defendant's contacts with the
forum." Dogra v. Liles, 129 Nev. „ 314 P.3d 952, 955 (2013)
(quoting Trump v. Eighth Judicial Dist. Court, 109 Nev. 687, 699, 857
P.2d 740, 748 (1993)); Goodyear, 564 U.S. at , 131 S. Ct. at 2851
("[S]pecific jurisdiction is confined to adjudication of issues deriving from,
or connected with, the very controversy that establishes jurisdiction."
(internal quotations omitted)). Nevada courts may exercise specific
jurisdiction over a nonresident defendant if the defendant (1)
"purposefully avails himself or herself of the protections of Nevada's laws,
or purposefully directs her conduct towards Nevada"; and (2) "the
plaintiffs claim actually arises from that purposeful conduct" within
3 Additionally, the NFL's prior unrelated lawsuits in Nevada do not
create general jurisdiction. See Grynberg v. Ivanhoe Energy, Inc., 666 F.
Supp. 2d 1218, 1231 (D. Colo. 2009) (finding that a defendant's filing of
unrelated lawsuits was insufficient to confer general jurisdiction);
Travelers Cas. & Sur. Co. v. Interclaim (Bermuda) Ltd., 304 F. Supp. 2d
1018, 1025 (N.D. Ill. 2004) (same)).
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Nevada. Dogra, 129 Nev. at , 314 P.3d at 955 (internal quotations
omitted).
Here, even if the NFL purposefully availed itself toward
Nevada, the Urbanskis' claims do not arise from that purposeful conduct.
The Urbanskis contend that Jones is an employee of the NFL 100 percent
of the time; however, there is nothing in the record to indicate any sort of
"on the clock" employee or agency relationship regarding Jones' late night
activities in Las Vegas. See Myers v. Bennett Law Offices, 238 F.3d 1068,
1073 (9th Cir. 2001) (establishing that the acts of an employee with
authority to act on behalf of the employer can be imputed to the employer
for the court's specific jurisdiction analysis); see also Dogra, 129 Nev. at
314 P.3d at 955. Thus, 'Jones' actions cannot be imputed upon the
NFL, and the Urbanskis have failed to make a prima facie showing of
jurisdictional facts. Accordingly, the district court did not err in finding
that it did not have specific jurisdiction over the NFL. 4
4Additionally, the district court did not err in refusing the
Urbanskis' request for additional jurisdictional discovery. The Urbanskis
failed to demonstrate how additional discovery would supplement their
jurisdictional allegations. See Trintec Indus., Inc. v. Pedre Promotional
Prods., Inc., 395 F.3d 1275, 1283 (Fed. Cir. 2005) ("[D]iscovery is
appropriate where the existing record is inadequate to support personal
jurisdiction and a party demonstrates that it can supplement its
jurisdictional allegations through discovery." (internal quotations
omitted)).
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Jones failed to preserve his argument regarding the jury verdict
Jones argues on appeal that the jury verdict is inconsistent
because the damage awards for Cudworth and Urbanski do not properly
correspond to the jury's findings of liability, both factually and as a matter
of law. As a result, Jones requests this court to reverse the judgment on
the verdict and order a new trial with further instruction on how to avoid
this dilemma in the future. However, we conclude that Jones failed to
preserve this issue for appeal.
"This court upholds a jury verdict if there is substantial
evidence to support it, but will overturn it if it was clearly wrong from all
the evidence presented." Soper v. Means, 111 Nev. 1290, 1294, 903 P.2d
222, 224 (1995). However, "[a] point not urged in the trial court, unless it
goes to the jurisdiction of that court, is deemed to have been waived and
will not be considered on appeal." Old Aztec Mine, Inc. v. Brown, 97 Nev.
49, 52, 623 P.2d 981, 983 (1981).
Parties have a duty to object to inconsistent jury verdicts
before the jury is dismissed. Eberhard Mfg. Co. v. Baldwin, 97 Nev. 271,
272-73, 628 P.2d 681, 682 (1981); see also Brascia v. Johnson, 105 Nev.
592, 596 n. 2, 781 P.2d 765, 768 n.2 (1989) (concluding that where
inconsistent verdicts are returned, a party must challenge the verdicts
before the jury is discharged and "failure to object while the jury [is] still
available and able to clarify its verdict constitute[s] a waiver"); cf. Lehrer
McGovern Bovis, Inc. v. Bullock Insulation, Inc., 124 Nev. 1102, 1111, 197
P.3d 1032, 1038 (2008) (recognizing that an exception exists to this rule if
a district court attempts to enter a general verdict which obviously
contradicts answers to special interrogatories under NRCP 49(b)). In
Eberhard, a case concerning injuries to a six-year-old boy from contact
with an open high-voltage electrical fuse box, the jury found the owner of
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the fuse box liable for negligence, the designer and manufacturer of the
fuse box locking mechanism liable for strict products liability, but did not
find liability for the manufacturer's distributor. 97 Nev. at 272, 628 P.2d
at 681-82. The plaintiff moved for judgment notwithstanding the verdict,
and the liable manufacturer motioned for a new trial, however, neither
took this action prior to the jury being dismissed. Id. at 272, 628 P.2d at
682. Despite the confusing verdict, post-judgment motions, and plaintiffs
submission of "alternative verdict forms which, if given, would have
prevented the claimed inconsistent verdicts," this court still concluded
that both sides "waived the ground of an inconsistent verdict in support of
their motions, as a result of their failure to timely object to the filing of the
verdict or to move that the case be resubmitted to the jury." Id. at 272-73,
628 P.2d at 682. The fact that the contested jury verdicts might have been
inconsistent as a matter of law was irrelevant. Id. The "primary objective
of the promotion and efficient administration of justice," took precedent.
Id. at 273, 628 P.2d at 682.
Here, Jones failed to object to the alleged inconsistent jury
verdicts prior to the jury's dismissal. The district court's denial of Jones'
proposed jury instructions, Jones' objection to the implemented jury
instructions, Jones' polling of the jurors following the verdict, Jones'
countermotion for remittitur or in the alternative for a new trial filed after
the jury was dismissed, and Jones' motion for remittitur or in the
alternative for a new trial filed after the jury was dismissed are
inconsequential. Further, the exception from Lehrer is inapplicable to the
facts here. Thus, we conclude that Jones' waived his right to appeal on
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inconsistent jury verdict grounds, because he failed to object before the
jury had been discharged. 5
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
, C.J.
Gibbons
J.
A
Hardesty
C,A. tift,at. , J.
Parraguirre
J.
Saitta
5 We have considered the parties' remaining arguments and conclude
that they are without merit.
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cc: Hon. Jessie Elizabeth Walsh, District Judge
Hon. Gloria Sturman, District Judge
Ara H. Shirinian, Settlement Judge
Kevin Lee Smith
Law Office of Lisa Rasmussen
Kolesar & Leatham, Chtd.
Chesnoff & Schonfeld
Thorndal Armstrong Delk Balkenbush & Eisinger/Las Vegas
Eighth District Court Clerk
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