Kimberly Bonnell v. Cabo Azul Resort

FILED
NOT FOR PUBLICATION JAN 26 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KIMBERLY BONNELL, individually and No. 08-17468
as Special Administrator to the Estate of
Mary Hayducka; NELSON HAYDUCKA, D.C. No. 2:08-cv-00910-PMP-
individually, LRL
Plaintiffs - Appellants,
MEMORANDUM *
v.
CABO AZUL RESORT, a timeshare
resort; PACIFIC MONARCH RESORT,
INC., a registered foreign corporation in
the State of Nevada, doing business in
Nevada; RESORT, defendants,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Argued and Submitted January 14, 2010
San Francisco, California
Before: BRIGHT, ** HAWKINS, and M. SMITH, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9 TH C IR. R. 36-3.
** The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.
Appellants brought suit against defendant-appellee Pacific Monarch Resort,
Inc. (PMRI) and others in Nevada state court for negligence based on premises
liability and failure to warn. PMRI removed the case to federal court. On PMRI’s
motion, the district court dismissed the suit for lack of personal jurisdiction.
Appellants challenge that dismissal. We vacate and remand.
This court reviews de novo a dismissal for lack of personal jurisdiction.
Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006). Where, as here,
a trial court rules on personal jurisdiction without holding an evidentiary hearing, a
plaintiff need only establish a prima facie showing of personal jurisdiction. See id.
There are two limitations on a court’s power to exercise personal jurisdiction
over a nonresident defendant: the applicable state long-arm statute and
constitutional principles of due process. Sher v. Johnson, 911 F.2d 1357, 1360
(9th Cir. 1990). Nevada’s long-arm statute reaches the limit of federal
constitutional due process, and thus the only relevant inquiry is whether due
process prohibits the exercise of jurisdiction over PMRI. Myers v. Bennett Law
Offices, 238 F.3d 1068, 1072 (9th Cir. 2001). Due process requires that a
defendant have certain minimum contacts with the forum state “such that the
maintenance of the suit does not offend traditional notions of fair play and
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substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)
(internal quotations omitted).
Requiring PMRI to defend this suit in Nevada federal district court does not
violate due process. PMRI has a presence in Nevada, is registered and conducts
business in Nevada, and the timeshare purchase giving rise to this suit occurred in
Nevada.
On the premises liability claim, the district court should have allowed
discovery to determine PMRI’s ownership relation to the Cabo Azul Resort. This
issue relates to the merits and not jurisdiction. The failure to warn claim is not
dependent on ownership and is sufficiently well pled to proceed. We therefore
vacate the order dismissing appellants’ suit for lack of personal jurisdiction over
PMRI and remand for further proceedings.
VACATED AND REMANDED. Costs on appeal are awarded to
appellants.
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