Raser Tech. v. Morgan Stanley

This opinion is subject to revision before final
publication in the Pacific Reporter
2019 UT 44IN THE
SUPREME COURT OF THE STATE OF UTAH
RASER TECHNOLOGIES, INC., by and through
HOUSTON PHOENIX GROUP, LLC as its Attorney in Fact, 1
Appellants,
v.
MORGAN STANLEY & COMPANY, LLC, 2
Appellees.
No. 20170325
Filed August 13, 2019
On Direct Appeal
Third District, Salt Lake
The Honorable Judge Todd M. Shaughnessy
No. 150906718
Attorneys:
Karra J. Porter, Kristen C. Kiburtz, Paul T. Moxley,
Patrick E. Johnson, Salt Lake City, Alan M. Pollack, New York, NY,
James W. Christian, Houston, TX, for appellants
_____________________________________________________________
1Other Appellants in this case are: KELLY TRIMBLE; MARK
SANSOM; OCEAN FUND, LLC; WARNER INVESTMENTS, LLC; and
MAASAI, INC.
2 Other Appellees in this case are: GOLDMAN SACHS & CO., LP;
GOLDMAN SACHS EXECUTION AND CLEARING L.P.; GOLDMAN SACHS
INTERNATIONAL; MERRILL LYNCH, PIERCE, FENNER & SMITH INC.;
MERRILL LYNCH PROFESSIONAL CLEARING CORP.; MERRILL LYNCH
INTERNATIONAL; and UBS SECURITIES LLC. Raser Technologies, Inc.
stipulated to a voluntary dismissal of the appeal as to Appellee
Morgan Stanley & Co. LLC (MSCO) with prejudice.
RASER v. MORGAN STANLEY
Opinion of the Court
James S. Jardine, Mark W. Pugsley, Robert P. Harrington, Salt Lake
City, for appellees
Richard C. Pepperman II, John G. McCarthy, New York, NY,
pro hac vice, for appellees Goldman Sachs & Co., LP; Goldman Sachs
Execution and Clearing L.P.; Goldman Sachs International
Andrew J. Frackman, Abby F. Rudzin, Brad M. Elias, New York, NY,
pro hac vice, for appellees Merrill Lynch, Pierce, Fenner & Smith Inc.;
Merrill Lynch Professional Clearing Corp.;
Merrill Lynch International
JUSTICE PEARCE authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PETERSEN joined.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶ 1 Raser Technologies, Inc., Kelly Trimble, Mark Sansom, Ocean
Fund, LLC (Ocean Fund), Warner Investments, LLC, and Maasai,
Inc. (collectively Plaintiffs) allege a complex conspiracy among
Merrill Lynch, Pierce, Fenner & Smith (Merrill), Merrill Lynch
Professional Clearing Corporation (Merrill Clearing), Merrill Lynch
International (Merrill International), Goldman Sachs & Co.,
(Goldman), Goldman Sachs Execution and Clearing (Goldman
Clearing), and Goldman Sachs International (Goldman International)
(collectively Defendants). 3
¶ 2 Plaintiffs allege that Defendants “devised and perpetrated a
naked short selling stock manipulation scheme that targeted and
intentionally destroyed a Utah company, Raser Technologies.” The
merits of this theory are not before us. Instead, we are faced with the
threshold determination of whether a Utah court may assert specific
personal jurisdiction over some or all of Defendants.
¶ 3 Raser was a geothermal energy company incorporated in
Delaware and headquartered in Utah. Raser maintained an
investment banking relationship with Merrill. In 2008, Merrill
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3 This opinion will sometimes refer to the parties collectively for
ease of reference. When relevant to the analysis, this opinion will
refer to the parties individually.
.
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structured several transactions on behalf of Raser in a stated effort to
raise capital for the company. Around this time, Merrill and
Goldman sold Raser’s stock short. Some of these sales may have
constituted a related, but separate, practice known as naked short
selling.
¶ 4 Several years after the short sales occurred, Raser filed for
bankruptcy. Plaintiffs subsequently sued Merrill, Goldman, and
several related entities, for violations of the Utah Pattern of Unlawful
Activity Act.4 Plaintiffs alleged that communications and securities
fraud formed the pattern’s skeleton of unlawful activity.
¶ 5 Defendants moved to dismiss Plaintiffs’ complaint for lack of
personal jurisdiction. In response, Plaintiffs argued that the court
could assert specific jurisdiction over Defendants because of the
contacts each defendant developed with Raser. Plaintiffs also argued
that even if each individual defendant did not establish minimum
contacts with the State of Utah, the district court could exercise
personal jurisdiction because Defendants had engaged in a
conspiracy to manipulate Raser’s stock price, the effects of which
were felt by Utah residents. Plaintiffs alternatively argued that so
long as one defendant established minimum contacts with the state,
those contacts could be imputed to the other defendants under the
conspiracy theory of jurisdiction. The district court disagreed with
each contention and dismissed Plaintiffs’ complaint for want of
personal jurisdiction.
¶ 6 The district court analyzed Plaintiffs’s claims against
Defendants collectively, without analyzing the nature of each
individual defendant’s contacts as they relate to each individual
plaintiff’s claims. Recent United States Supreme Court jurisprudence
clarifies that courts must analyze each plaintiff’s claims and the
relation of those claims to the forum state, in addition to analyzing a
defendant’s contacts to the forum state. Because the district court
analyzed Plaintiffs’ claims and Defendants’ contacts collectively, it
may have distorted its analysis.
¶ 7 After analyzing recent United States Supreme Court
jurisprudence, we conclude that there is an articulation of the
conspiracy theory of jurisdiction that comports with the due process
principles of the Fourteenth Amendment. And we hold that the Utah
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4 Raser Technologies, Inc., did not sue Merrill. Therefore, Merrill
is only a defendant as to plaintiffs Kelly Trimble, Mark Sansom,
Ocean Fund, Warner Investments, and Maasai.
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RASER v. MORGAN STANLEY
Opinion of the Court
Nonresident Jurisdiction Act compels us to adopt the conspiracy
theory of jurisdiction.
¶ 8 We vacate and remand for the district court to reexamine the
claims and contacts, and apply the jurisdictional tests we announce
here.
BACKGROUND
I. Short Selling
¶ 9 A brief overview of the trading practice known as short
selling helps understand Plaintiffs’ allegations. 5 Short selling is best
characterized as a “sell high, buy low” strategy. Alexis Brown
Stokes, In Pursuit of the Naked Short, 5 N.Y.U. J. L. & BUS. 1, 3 (2009). If
everything goes according to plan, an investor, suspecting that the
price of a stock will decrease, borrows the stock, sells it, waits for the
price to decline, purchases the stock at the lower price, returns the
stock to the lender, and “pockets the difference in price as profit.” Id.Typically, the investor will borrow the stock from a brokerage firm,
and the borrowed stock originates from the firm’s own inventory,
the margin account of other brokerage firm clients, or another
lender. U.S. SEC. & EXCH. COMM’N, KEY POINTS ABOUT REGULATION
SHO, https://www.sec.gov/investor/pubs/regsho.htm (last visited
August 7, 2019). Short selling is a lawful trading practice in many
instances. Id. But short selling is illegal when used to manipulate the
price of a stock. Id.¶ 10 In a typical transaction, the seller has a three-day settlement
period to deliver the stock to the buyer. U.S. SEC. & EXCH. COMM’N,
NAKED SHORT SALES, https://www.sec.gov/answers/
nakedshortsale.htm (last visited August 7, 2019). In a naked short
sale, the investor identifies a stock that she suspects is overvalued
and likely to decrease in price, then sells shares of the stock that she
does not own or has not borrowed and does not intend to own or
borrow, thus creating phantom shares of the stock. Id.; Stokes, supra
¶ 9 at 6. Because the seller does not own or possess the shares she
sold, she cannot deliver the securities within the settlement period.
U.S. SEC. & EXCH. COMM’N, KEY POINTS ABOUT REGULATION SHO,
https://www.sec.gov/investor/pubs/regsho.htm (last visited
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5 “Because this is an appeal from a grant of a motion to dismiss,
we construe the facts in the light most favorable to . . . the non-
moving parties.” Bylsma v. R.C. Willey, 2017 UT 85, ¶ 4 n.2, 416 P.3d
595.
.
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August 7, 2019). This is known as a “failure to deliver” or “fail”—the
securities equivalent of an “IOU.” Stokes, supra ¶ 9 at 7; U.S. SEC.
& EXCH. COMM’N, KEY POINTS ABOUT REGULATION SHO,
https://www.sec.gov/investor/pubs/regsho.htm (last visited
August 7, 2019).
¶ 11 The Depository Trust and Clearing Corporation (DTCC)
records the fails. The DTCC is “a financial services company that
clears and settles securities trades and provides custody of
securities.” Stokes, supra ¶ 9 at 6. The DTCC eliminates the need for
exchanging paper stock certificates and provides an efficient and
safe trading mechanism for buyers and sellers. Id.
¶ 12 This system allows a transaction to occur, and all monies to
be paid, before delivery of the stock occurs. Id. Broker-dealers and
banks credit the shares to the buyer before delivery. Id. at 7. If the
seller does not deliver the shares, a fail occurs, but the buyer still
possesses the purchased shares. Id. This can result in an artificial
oversupply of the stock. Id. When the market is flooded with the
chimerical shares, the stock price usually falls. Id. The SEC heavily
regulates naked short selling, and its legality is confined to limited
circumstances. U.S. SEC. & EXCH. COMM’N, KEY POINTS ABOUT
REGULATION SHO, https://www.sec.gov/investor/pubs/
regsho.htm (last visited August 7, 2019). Plaintiffs allege that
Defendants’ trading practices ventured outside of these limited
circumstances and into the realm of illegal activity.
II. Raser
¶ 13 Raser was a geothermal energy company incorporated in
Delaware with its principal place of business in Salt Lake City, Utah.
Raser planned to develop a new geothermal plant in Beaver County,
Utah. Over 250 Raser shareholders resided in Utah, including
plaintiffs Kelly Trimble and Mark Sansom.
¶ 14 Raser needed to raise capital to fund its ongoing operations
and construction projects. In 2007, Raser entered into negotiations
with “upper management” at Merrill to structure a series of
transactions designed to raise capital. Raser’s CEO, Kraig Higginson,
participated in the negotiations on behalf of the company. The
negotiations involved “in excess of a dozen conferences,” both in
Utah and telephonically with individuals in Utah, and the exchange
of multiple documents to and from the parties in Utah. At the
conclusion of the negotiations, Merrill proposed a $55 million
Convertible Bond Offering (CBO).
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RASER v. MORGAN STANLEY
Opinion of the Court
The Transaction
¶ 15 For the CBO, Merrill suggested that Higginson contact two
of Raser’s shareholders, Ned Warner 6 and Ty Mattingly, to release
approximately three million unrestricted shares of Raser stock.
Higginson explained that, at Merrill’s suggestion, the shares were to
be used as “hedges” in the bond offering. After the discussion with
Higginson, Warner spoke with one of Merrill’s managing directors
regarding his unrestricted shares.
¶ 16 In his telephone conversation with Merrill, Warner
“expressed . . . [his] willingness to open an account with [Merrill]
and deposit [his] 2,000,000 unrestricted shares of Raser stock.”
However, Warner “clearly indicated . . . that [he] only would be
willing to have [his] shares used by participants in the CBO, and that
under no circumstances did [he] want [his] shares used by any other
party who wanted to short Raser’s stock.” Merrill assured Warner
that the shares would only be used by participants in the CBO. In
reliance on this representation, Warner signed and filed the
necessary paperwork to open a Merrill account and had his stock
certificates delivered to the local Merrill office in Provo, Utah. The
CBO occurred in March 2008.
The Shorts
¶ 17 Prior to and concurrent with the CBO, Merrill and several
other entities shorted Raser stock. Plaintiffs allege that some of the
short selling constituted naked short selling, evidenced by the
number of fails recorded for various Merrill entities. In 2007, Merrill
Clearing was the largest failing broker of Raser. Over the course of
181 days in 2007, Merrill Clearing “consistently held between 75–
99% of all Fails of Raser stock.” During this time, Merrill Clearing
“selectively transferred primarily long positions 7 of its customers to
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6 Ned Warner owns and controls plaintiffs Ocean Fund, Maasai,
and Warner Investments. These entities collectively owned several
million shares of Raser stock.
7 “In a typical securities transaction, an investor purchases a
stock, waits for the stock price to increase, and then sells the stock at
a profit. In securities lingo, this ‘buy low, sell high’ behavior is called
‘selling long.’” Stokes, supra ¶ 9 at 3. This type of transaction—
known as a “long position” limits the risk to the amount invested.
U.S. SEC. & EXCH. COMM’N, KEY POINTS ABOUT REGULATION SHO,
https://www.sec.gov/investor/pubs/regsho.htm (last visited
August 7, 2019).
.
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Merrill Lynch while allowing the failed positions . . . to increase.”
And by “selectively transferring long positions, [Merrill Clearing]
increased the number of shares it could lend to short sellers.”
The Trades
¶ 18 In addition to the short and alleged naked short selling that
occurred around the time of the CBO, Merrill, Merrill International,
Goldman, and Goldman International moved Raser stock between
and among themselves. Around the time of the CBO, Merrill
transferred restricted shares of Raser stock to Merrill International.
Merrill International then sent the shares back to Merrill as free
trading shares. 8
¶ 19 Approximately ten to fifteen trades occurred between
Goldman Clearing, Merrill Clearing, Merrill, and an independent
clearing corporation, Newedge LLC. In these transactions, the shares
would pass through Newedge before being transferred to either
Goldman Clearing, Merrill Clearing, or Merrill. Roughly one million
shares moved between companies between January 2008 and August
2008.
¶ 20 Some of the trades took a circuitous path. For example,
450,000 shares moved from Goldman Clearing to Newedge to
Merrill Clearing and then to Merrill. Merrill then loaned the shares
back to Goldman as part of a loan of 700,000 total shares. These
trades formed the basis of Plaintiffs’ claims against Defendants.
The Litigation
¶ 21 Plaintiffs sued Morgan Stanley & Co, LLC, 9 Merrill, Merrill
Clearing, Merrill International, Goldman, Goldman Clearing, and
Goldman International. 10 Plaintiffs alleged that Defendants violated
the Utah Pattern of Unlawful Activity Act, and as a result, “the value
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8 Shares that originate from a broker’s account are free trading
shares that can be loaned for short selling. Customer shares are
restricted and cannot be lent for short selling unless they are placed
in a margin account and the customer gives permission to lend them.
Once shares are moved to a clearing subsidiary, they are no longer
considered customer shares.
Plaintiffs agreed to withdraw all claims and the appeal against
9
Morgan Stanley.
10 Raser did not pursue claims against Merrill. Raser’s
co-plaintiffs did.
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RASER v. MORGAN STANLEY
Opinion of the Court
of Raser stock was diluted, and the company and its shareholders
were damaged.” Plaintiffs averred that instances of communications
fraud and violations of the Utah Uniform Securities Act constituted
the predicate acts that formed the pattern of unlawful activity.
Plaintiffs also alleged that Defendants’ “unlawful conduct occurred
within . . . their pervasive and long-standing pattern of naked short
selling.” Plaintiffs asserted in their complaint that “[p]ersonal
jurisdiction [over] Defendants is proper in Utah” because “[e]ach
Defendant has continuous and systematic business contacts with
Utah.”
¶ 22 Defendants moved to dismiss Plaintiffs’ claims, arguing
that the court lacked personal jurisdiction. Plaintiffs opposed the
motion, contending that they had made a prima facie showing of
specific jurisdiction. Plaintiffs asserted that they had sufficiently
alleged the elements of the effects test as articulated in ClearOne, Inc.
v. Revolabs, Inc., 2016 UT 16, 369 P.3d 1269: “Defendants are alleged
to have (1) committed intentional acts (stock manipulation and
fraud); (2) expressly aimed at Utah (Raser); (3) causing harm, the
brunt of which is suffered—and which the defendant knows is likely
to be suffered—in Utah.”
¶ 23 Plaintiffs argued that they satisfied the requirement in
ClearOne that the “effect in the forum state must be more than an
effect on a plaintiff in the forum state” by asserting that “[m]ore than
250 Utah shareholders had millions of dollars in equity destroyed,”
“[m]ore than 40 Utah residents lost their jobs,” “[a]t least 499 Utah
creditors lost money from Raser’s bankruptcy,” and that the State of
Utah, dozens of Utah companies, and Beaver County lost millions of
dollars. Plaintiffs also argued that the district court could exercise
jurisdiction over Defendants with no direct contacts in Utah because,
under a conspiracy theory of jurisdiction, “[t]he actions of each
member of the conspiracy in furtherance of Defendants’ naked short
selling scheme [would be] considered in weighing personal
jurisdiction.”
¶ 24 The district court granted Defendants’ motion. The district
court first addressed the claims against Merrill. The court noted that
Merrill “was an investment banker for Raser, and, in that capacity,
had numerous meetings, telephone calls and other contacts with
Raser in Utah.” Based on that, the court concluded that “if Raser was
asserting claims against Merrill . . . that arose out of or related to that
investment banking relationship, this court would have personal
jurisdiction over Merrill.”
¶ 25 The district court continued, “Raser, however is not
asserting any claims against Merrill . . . arising from their investment
.
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banking relationship or these contacts; in fact, Raser is not asserting
any claim against Merrill . . . at all.” And with regards to the other
Plaintiffs’ claims against Merrill, the court noted that “while it is not
disputed that Merrill . . . has offices, employees, and business
operations in Utah, plaintiffs do not claim that the court can exercise
general personal jurisdiction over it.”
¶ 26 The district court noted that Merrill “had stock loan
agreements with Raser shareholders, one of which is Plaintiff Ocean
Fund, LLC, and plaintiffs contend that [Merrill] breached those
agreements by using borrowed Raser shares to support short sales
rather than hedging.” The court concluded that “[i]f Ocean Fund
were asserting a claim for breach of those agreements, or any claim
that could fairly be said to arise out of a breach of those agreements,
the court would have personal jurisdiction over Merrill . . . to
entertain a claim by Ocean Fund.” But because Ocean Fund did not
plead a breach of contract claim, the district court found that it could
not exercise specific personal jurisdiction over Merrill. The court also
concluded that Plaintiffs’ claim based on the Utah Pattern of
Unlawful Activity Act “is considerably more involved and, by
necessity, requires participation by other defendants over whom the
court cannot exercise personal jurisdiction.”
¶ 27 The district court then noted that Plaintiffs sought to
impute Merrill’s contacts with Utah and Raser to the other
Defendants through the conspiracy theory of jurisdiction. The
district court refused to recognize the conspiracy theory of
jurisdiction, noting that this court previously declined to do so in
Pohl, Inc. of America v. Webelhuth, 2008 UT 89, 201 P.3d 944. The
district court concluded that “[a]s a result, [Merrill’s] contacts with
Raser and with Utah, standing alone, cannot provide the minimum
contacts necessary to establish personal jurisdiction over [Merrill’s]
co-defendants.” And “[b]y the same token, those contacts, standing
alone, cannot be relied upon by plaintiffs other than Raser to establish
specific personal jurisdiction over Merrill.”
¶ 28 The district court noted that “[w]ith respect to all of the
defendants other than Merrill . . . , and with respect to Merrill . . .
and all plaintiffs other than Raser . . . , plaintiffs do not identify any
contact between these parties that occurred in Utah.” “The closest
plaintiffs come to alleging contact by these defendants with Utah is
the allegation that the defendants improperly used, relied upon,
laundered or otherwise mishandled Raser stock from a public
offering ‘originating in Utah.’” The court knocked down this
assertion because while Raser was headquartered in Utah, Raser was
a Delaware corporation and under Delaware statute its stock was
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RASER v. MORGAN STANLEY
Opinion of the Court
located in Delaware, and that stock traded in New York. Because
Plaintiffs did not provide the district court with any authority
“suggesting that the location of a company’s headquarters
determines where stock or a stock offering ‘originates,’” the court
found this assertion meritless.
¶ 29 The district court noted that “plaintiffs do not allege that
any of the wrongful acts by the defendants occurred in Utah,” and
that “[p]laintiffs instead rely on extraterritorial conduct by the
defendants that purportedly was directed at and caused harm here.”
The court concluded that, “even accepting as true all of plaintiffs’
allegations regarding defendants’ conduct, and even assuming the
defendants knew the harm would be suffered in Utah and would be
substantial, plaintiffs have not shown that defendants’ conduct was
expressly aimed at Utah.” “The conduct,” the court continued, “was
aimed at manipulating the price of Raser’s stock, which is legally
sited in Delaware and trades in New York. To the extent defendants’
conduct could be said to be connected to Utah, that would be true
only because Raser chose to locate its headquarters here.”
¶ 30 The court ultimately concluded that “aside from having
caused harm here, to Raser, its resident shareholders, and perhaps
others, plaintiffs have not identified conduct directed at the state. For
that reason, the court lacks specific personal jurisdiction over all
defendants.”
¶ 31 Plaintiffs appealed. After hearing oral argument, we
requested supplemental briefing on the effects test and the
conspiracy theory of jurisdiction. 11
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11 The supplemental briefing order directed the parties to address
the following two questions:
(1) Should this Court revisit its holding in ClearOne,
Inc. v. Revolabs, Inc. (2016 UT 16)? Specifically, should
this Court revisit the viability of the effects test after
Walden v. Fiore (134 S.Ct. 1115 (2014))? If so, does the
discussion of specific jurisdiction in Walden leave room
for the effects test’s continued viability? Furthermore,
how would a post-Walden effects test impact the
potential exercise of jurisdiction over defendants in this
case?
(2) Is a conspiracy theory of jurisdiction compatible
with Walden and Bristol-Myers Squibb Co. v. Superior
Court of California (137 S.Ct. 1773 (2017))? If so, does the
(continued . . .)
.
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ISSUE AND STANDARD OF REVIEW
¶ 32 Plaintiffs contend that the district court erred by
concluding that the court lacked personal jurisdiction over all
Defendants. “In a case such as this one, ‘[w]here a pretrial
jurisdictional decision has been made on documentary evidence
only, an appeal from that decision presents only legal questions that
are reviewed for correctness.’” Pohl, Inc. of Am. v. Webelhuth, 2008 UT
89, ¶ 8, 201 P.3d 944 (alteration in original) (citation omitted).
ANALYSIS
¶ 33 Plaintiffs contend that the district court erred by
concluding that it lacked personal jurisdiction over Defendants.
First, Plaintiffs argue that the court erred in concluding that Plaintiffs
failed to demonstrate that Defendants’ conduct was expressly aimed
at Utah. Second, Plaintiffs argue that because they pled a conspiracy
among Defendants, “the minimum contacts associated with a co-
conspirator may be attributed to other co-conspirators when an overt
act relevant to the conspiracy is performed in the forum state.” And
that here, Merrill’s contacts in Utah suffice as the overt acts which
provide the hook, in Plaintiffs’ eyes, to assert jurisdiction over the
rest of Defendants. Plaintiffs assert that the conspiracy theory of
jurisdiction satisfies the requirements of due process so long as “the
co-conspirators to whom minimum contacts are imputed knew or
should have known that overt acts would occur in the forum state.”
I. General Principles
¶ 34 “The authority of the state to hale a nonresident into a state
court hinges on the ability to establish personal jurisdiction.”
ClearOne, Inc. v. Revolabs, Inc., 2016 UT 16, ¶ 7, 369 P.3d 1269 (citation
omitted). And a court’s exercise of personal jurisdiction must be
“consistent with the due process protections of the Fifth and
Fourteen Amendments to the United States Constitution.” Id.(citation omitted). There are two categories of personal jurisdiction:
specific jurisdiction and general jurisdiction. Id. “[A] court may
assert general jurisdiction over foreign (sister-state or
Utah Nonresident Jurisdiction Act (78B-3-201, et seq.)
require this Court to adopt a test premised on the
conspiracy theory of jurisdiction? If the Court is to
adopt such a test, what should the elements be and
what would the impact of the adoption of such a test be
on the potential exercise of specific personal
jurisdiction over the defendants in this case?
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RASER v. MORGAN STANLEY
Opinion of the Court
foreign-country) corporations to hear any and all claims against
them when their affiliations with the State are so continuous and
systematic as to render them essentially at home in the forum State.”
Daimler AG v. Bauman, 571 U.S. 117, 127 (2014) (citation omitted)
(internal quotation marks omitted). Plaintiffs do not argue that
Defendants are subject to general jurisdiction. 12
¶ 35 “[S]pecific personal jurisdiction gives a court power over a
defendant only with respect to claims arising out of the particular
activities of the defendant in the forum state . . . .” ClearOne, 2016 UT
16, ¶ 8 (alterations in original) (citation omitted). Plaintiffs argue that
Defendants are subject to specific jurisdiction.
¶ 36 The Due Process Clause of the Fourteenth Amendment of
the United States Constitution permits a state to exercise personal
jurisdiction over a party only when the party has “minimum
contacts with [the state] such that the maintenance of the suit does
not offend ‘traditional notions of fair play and substantial justice.’”
Int’l Shoe Co. v. Wash. Office of Unemployment Comp. & Placement, 326
U.S. 310, 316 (1945). “In judging minimum contacts, a court properly
focuses on ‘the relationship among the defendant, the forum, and the
litigation.’” Calder v. Jones, 465 U.S. 783, 788 (1984) (citation omitted).
¶ 37 “For a State to exercise jurisdiction consistent with due
process, the defendant’s suit-related conduct must create a
substantial connection with the forum State.” Walden v. Fiore, 571
U.S. 277, 284 (2014). In Walden, the Supreme Court examined “[t]wo
related aspects” of “the relationship among the defendant, the
forum, and the litigation” to determine whether jurisdiction is
proper. Id. (citation omitted). First, we must consider whether “the
relationship . . . arise[s] out of contacts that the ‘defendant himself’
creates with the forum State.” Id. (citation omitted). To establish
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12 In their complaint, Plaintiffs argued that “[p]ersonal
jurisdiction [over] Defendants is proper in Utah” because “[e]ach
Defendant has continuous and systematic business contacts with
Utah.” In their response to Defendants’ motion to dismiss, however,
Plaintiffs argued that “[f]or the purposes of this response, Plaintiffs
do not rely on general jurisdiction.” The district court noted this
statement in its order and concluded that “[w]hether for purposes of
this motion or otherwise, it is clear this court lacks general personal
jurisdiction over defendants.” Plaintiffs have not challenged this
conclusion and they aver that only “specific personal jurisdiction . . .
is at issue in this appeal.”
.
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personal jurisdiction, it is “insufficient to rely . . . on the ‘unilateral
activity’ of a plaintiff.” Id. at 286 (citation omitted). Rather, “[a]
forum State’s exercise of jurisdiction over an out-of-state intentional
tortfeasor must be based on intentional conduct by the defendant
that creates the necessary contacts with the forum.” Id. Second, we
must consider whether a defendant’s contacts are “with the forum
State itself, not . . . with persons who reside there.” Id. at 285. A
plaintiff “cannot be the only link between the defendant and the
forum.” Id. “The proper question is not where the plaintiff
experienced a particular injury or effect but whether the defendant’s
conduct connects him to the forum in a meaningful way.” Id. at 290.
¶ 38 Focusing solely on a non-resident-defendant’s contacts
with the plaintiff “impermissibly allows a plaintiff’s contacts with
the defendant and forum to drive the jurisdictional analysis.” Id. at
289. “Such reasoning improperly attributes a plaintiff’s forum
connections to the defendant and makes those connections ‘decisive’
in the jurisdictional analysis.” Id. “Due process requires that a
defendant be haled into court in a forum State based on his own
affiliation with the State, not based on the ‘random, fortuitous, or
attenuated’ contacts he makes by interacting with other persons
affiliated with the State.” Id. at 286. A defendant’s contacts with the
forum state “may be intertwined with his transactions or interactions
with the plaintiff or other parties. But a defendant’s relationship with
a plaintiff or third party, standing alone, is an insufficient basis for
jurisdiction.” Id. Additionally, “physical presence in the forum is not
a prerequisite to jurisdiction,” but “physical entry into the State—
either by the defendant in person or through an agent, goods, mail,
or some other means—is certainly a relevant contact.” Id. at 285.
¶ 39 The distinction between a defendant’s contacts with the
plaintiff and a defendant’s contacts with the forum state itself is
difficult to grasp in the abstract. 13 In Walden, the Supreme Court
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13 When examined in isolation, this language—that a defendant
must have contacts “with the forum State itself”—could be read to
suggest that a defendant must have contacts with the forum
unrelated to the plaintiff and cause of action at issue. When read in
context, the Supreme Court’s meaning clarifies. “Due process
requires that a defendant be haled into court in a forum State based
on his own affiliation with the State, not based on the ‘random,
fortuitous, or attenuated’ contacts he makes by interacting with other
persons affiliated with the State.” Walden, 571 U.S. at 286. And, in
Walden, the Court was presented with Georgia-based Drug
(continued . . .)
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Opinion of the Court
explained the distinction in context of its prior decisions. Id. at 284–
85. The Walden court opined that one way a defendant could be
found to have minimum contacts with a forum would occur when a
defendant “purposefully ‘reach[ed] out beyond’ [its] State and into
another by, for example, entering a contractual relationship that
‘envisioned continuing and wide-reaching contacts’ in the forum
State.” Id. at 285 (first alteration in original) (citation omitted). The
Court also pointed to Calder as a prime example of “ample” forum
contacts. Id. at 287.
¶ 40 In Calder, a California actress brought a libel suit in a
California state court against National Enquirer employees who
worked at its headquarters in Florida. 465 U.S. 783, 784–85 (1984).
The claims arose from an article defendants wrote and edited in
Florida for publication in the National Enquirer, a national weekly
“newspaper.” Id.¶ 41 The Calder court examined the contacts that the defendants
created with the forum state, noting that: “[t]he defendants relied on
phone calls to ‘California sources’ for the information in their article;
they wrote the story about the plaintiff’s activities in California;
[and] they caused reputational injury in California by writing an
allegedly libelous article that was widely circulated in the State.”
Walden, 571 U.S. at 287 (quoting Calder, 465 U.S. at 788–89).
Furthermore, “the ‘brunt’ of that injury was suffered by the plaintiff
in that State.” Id. “In sum, California [was] the focal point both of the
story and of the harm suffered.” Calder, 465 U.S. at 789.
Enforcement Administration agents who interacted with the Nevada
plaintiffs in Georgia. Id. at 279–81. There, it was not sufficient that
the agents knew that plaintiffs lived in Nevada and that the effects of
their actions would be felt in Nevada. Id. at 289–90. “The proper
question” according to the Court is “whether the defendant’s
conduct connects him to the forum in a meaningful way.” Id. at 290.
In other words, the defendants had contacts with Nevada residents,
but these contacts were “random, fortuitous, and attenuated” such
that they could not confer jurisdiction over the defendant. Id. at 285.
They did not have contacts with those Nevada residents in
Nevada—whether “in person or through an agent, goods, mail, or
some other means.” Id. at 285. And without contacts with plaintiffs
in the forum state, the Supreme Court was unwilling to uphold the
Ninth Circuit Court of Appeals’ decision that the exercise of specific
jurisdiction was proper.
.
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¶ 42 This aspect of the minimum contacts inquiry examines the
connection that the defendant creates with the forum state itself. But,
when considering specific jurisdiction, this connection must also be
tied to the controversy underlying the litigation. “In order for a court
to exercise specific jurisdiction over a claim, there must be an
‘affiliation between the forum and the underlying controversy,
principally, [an] activity or an occurrence that takes place in the
forum State.’” Bristol-Myers Squibb Co. v. Superior Court of Cal., 137
S. Ct. 1773, 1781 (2017) (alteration in original) (citation omitted).
¶ 43 In Bristol-Myers Squibb, the Supreme Court examined the
California Supreme Court’s “sliding scale approach to specific
jurisdiction” and determined that this approach does not jibe with
jurisdictional jurisprudence. Id. at 1778, 1781 (citation omitted). In
that case, a group of 678 plaintiffs—86 from California and 592 from
33 other states—filed eight separate complaints, all asserting claims
under California law, in a California Superior Court, alleging that a
drug Bristol-Myers Squibb distributed had damaged their health. Id.
at 1778. The non-resident plaintiffs did not allege that they obtained
the drug through California physicians or from any California
source. Id. Nor did they claim that their injury occurred in California.
Id. Bristol-Myers Squibb asserted that the California court lacked
personal jurisdiction as to the non-resident plaintiffs’ claims. Id. The
California Supreme Court disagreed. Id. Under the California
Supreme Court’s approach to specific jurisdiction, “the more wide
ranging the defendant’s forum contacts, the more readily is shown a
connection between the forum contacts and the claim.” Id. (citation
omitted).
¶ 44 The United States Supreme Court concluded that the
sliding scale approach “resemble[d] a loose and spurious form of
general jurisdiction,” and is “difficult to square with . . .
precedent[].” Id. at 1781. The Court noted a lack of “any adequate
link between the State and the nonresidents’ claims. . . . The mere
fact that other plaintiffs were prescribed, obtained, and ingested [the
drug] in California—and allegedly sustained the same injuries as did
the nonresidents—does not allow the State to assert specific
jurisdiction over the nonresidents’ claims.” Id. The Court cautioned
that “a defendant’s relationship with a . . . third party, standing
alone, is an insufficient basis for jurisdiction.” Id. (omission in
original) (citation omitted). “This remains true even when third
parties (. . . the plaintiffs who reside in California) can bring claims
similar to those brought by the nonresidents.” Id. The Court
concluded that “what is missing . . . is a connection between the
forum and the specific claims at issue.” Id.
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Opinion of the Court
¶ 45 Bristol-Myers Squibb clarified two principles. First, to assert
specific jurisdiction, a plaintiff must demonstrate not only the
connection between the defendant and the forum, but also the
connection between the forum and the claims at issue. Id. at 1781.
Second, a plaintiff cannot rely on the connection of another plaintiff’s
claims to the forum; courts must independently analyze the
connection between each plaintiff’s claim and the forum state. Id. at
1783.
¶ 46 And these principles build on those that the court clarified
in Walden, which relate to the relationship between the defendant
and the forum state: whether “the relationship among the defendant,
the forum, and the litigation . . . arise[s] out of contacts that the
‘defendant himself’ creates with the forum State,” and whether a
defendant’s contacts are “with the forum State itself, not . . . with
persons who reside there.” Walden, 571 U.S. at 284-85.
II. The Effects Test Analysis
of Minimum Contacts
¶ 47 In their briefing, the parties rely, quite understandably, on
the way we framed the inquiry in ClearOne, Inc. v. Revolabs, 2016 UT
16, 369 P.3d 1269. Notably, both parties employ a minimum contact
analysis known as the “effects” test, which we adopted in Pohl, Inc. of
America v. Webelhuth, 2008 UT 89, ¶¶ 23–27, 201 P.3d 944, and later
narrowed in ClearOne, 2016 UT 16, ¶ 23. 14
¶ 48 In ClearOne, we noted that the “‘effects test . . . has three
prongs: ‘the defendant must have (1) committed an intentional act,
which was (2) expressly aimed at the forum state, and (3) caused
harm, the brunt of which is suffered and which the defendant knows
is likely to be suffered in the forum state.’” ClearOne, 2016 UT 16,
¶ 11 (citation omitted). In ClearOne, we reasoned that “[u]nder
Walden, the proper application of the ‘effects’ test looks beyond both
the plaintiff’s connections to the forum state and the plaintiff’s injury
to whether the defendant has ‘create[d] a substantial connection with
the forum State.’” Id. ¶ 22 (second alteration in original) (quoting
Walden, 571 U.S. at 284). And we noted that Walden “clarified that the
effects of an alleged tort must be felt by more than just a plaintiff
with significant contacts with the forum state—they must be felt in
some broader sense by the forum state itself.” Id.
_____________________________________________________________
14The district court also, again quite understandably, based its
analysis on the effects test we outlined in ClearOne.
.
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¶ 49 ClearOne represents our effort to reconcile Pohl’s version of
the effects test with the Supreme Court’s guidance in Walden. 15 The
parties’ briefing suggests that we need to underscore what we said in
ClearOne. This is because a myopic focus on the effects test’s
language, at the expense of Walden’s explanation, creates the
potential to distort the jurisdictional inquiry.
¶ 50 In ClearOne, we explained that “the ‘express aiming’ prong
of the ‘effects’ test could not be satisfied simply by showing that the
defendant targeted an entity known to be a resident of the forum.”
_____________________________________________________________
15 Other courts have similarly wrestled with how Walden may
have impacted the effects test. For example, the Ninth Circuit Court
of Appeals applied the effects test in a copyright infringement claim,
but acknowledged that “[f]ollowing Walden, . . . while a theory of
individualized targeting may remain relevant to the minimum
contacts inquiry, it will not, on its own, support the exercise of
specific jurisdiction, absent compliance with what Walden requires.”
Axiom Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d 1064, 1066, 1070 (9th
Cir. 2017).
Other courts have grappled with the reach of the effects test. The
Eleventh Circuit Court of Appeals explained that “[t]he Calder effects
test is satisfied when the defendant commits an intentional tort
expressly aimed at the forum that causes a reasonably foreseeable
injury in the forum,” but noted that “[t]he ‘effects test’ applies only
in intentional tort cases.” Aviation One of Fla., Inc. v. Airborne Ins.
Consultants (PTY), Ltd., 722 Fed. App’x 870, 882 (11th Cir. 2018)
(citation omitted).
The Tenth Circuit Court of Appeals has examined Walden and
questioned the reach of the effects test, opining that “the [United
States] Supreme Court has recently suggested that the Calder effects
test does not extend beyond the defamation context.” Old Republic
Ins. Co. v. Cont’l Motors, Inc., 877 F.3d 895, 916 n.34 (10th Cir. 2017)
(citing Walden, 571 U.S. at 287). But other courts do not read Walden
to have narrowed the test so significantly. See Biliack v. Paul Revere
Life Ins. Co., 265 F. Supp. 3d 1003, 1006–09 (D. Ariz. 2017) (applying
the effects test in the context of claims for breach of contract, breach
of the obligation of good faith and fair dealing, and the tort of
insurance bad faith); Christie v. Nat’l Inst. for Newman Studies, 258 F.
Supp. 3d 494 (D.N.J. 2017) (applying the effects test in the context of
tort claims alleging violations of the Computer Fraud and Abuse
Act, Invasion of Privacy, and violation of New Jersey’s Computer
Related Offense Act).
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RASER v. MORGAN STANLEY
Opinion of the Court
ClearOne, 2016 UT 16, ¶ 20. And we noted that the Supreme Court
had instructed that “[t]he proper question is not where the plaintiff
experienced a particular injury or effect but whether the defendant’s
conduct connects him to the forum in a meaningful way.” Id. ¶ 21
(alteration in original) (quoting Walden, 571 U.S. at 290). This
connection must “arise[] out of contacts that the ‘defendant himself’
creates . . . with the forum State,” in relation to the claims or
litigation. Id. ¶ 17 (citation omitted) (internal quotation marks
omitted). The Walden court suggested that the type of contacts that
would meet this standard would include “entering a contractual
relationship that ‘envisioned continuing and wide-reaching contacts’
in the forum State” and “physical entry into the State—either by the
defendant in person, or through an agent, goods, mail, or some other
means.” Walden, 571 U.S. at. 285 (citation omitted).
¶ 51 And with regards to the “brunt of the injury” prong, in
ClearOne we noted that Walden explained that “an injury is
jurisdictionally relevant only insofar as it shows that the defendant
has formed a contact with the forum State.” 2016 UT 16, ¶ 21.
(citation omitted). Therefore, we emphasize that allegations of out-
of-state conduct that happen to have effects that ripple into Utah
cannot, by themselves, establish specific jurisdiction.
¶ 52 We also address our statement that Walden “clarified that
the effects of an alleged tort must be felt by more than just a plaintiff
with significant contacts with the forum state—they must be felt in
some broader sense by the forum state itself.” ClearOne, 2016 UT 16,
¶ 22. For the reasons discussed in footnote 13, we think this
overstates Walden’s holding. Walden focuses the inquiry on the
defendant and the litigation-related contacts she makes with the
forum. Even if the effects are felt by just the plaintiff in the state, if
those effects are the product of a defendant purposefully reaching
into the state, specific jurisdiction may exist.
III. Specific Jurisdiction over Defendants
¶ 53 With these principles in mind, we turn to the district
court’s ruling. Plaintiffs argue that the district court erred by
concluding that Plaintiffs failed to meet their threshold burden of
establishing specific personal jurisdiction. Defendants counter that
the district court correctly dismissed Plaintiffs’ claims for lack of
personal jurisdiction because Plaintiffs did not show that any
defendant engaged in any conduct in Utah that gives rise to the
claims at issue. Specifically, Defendants argue that Plaintiffs cannot
establish jurisdiction under the effects test because Plaintiffs “did not
show that a conspiracy to manipulate Raser’s stock price was
.
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‘expressly aimed’ at Utah” and “cannot show that Defendants
caused harm that they knew was likely to be suffered in Utah.”
¶ 54 Using the ClearOne framework, Plaintiffs contend that they
have made a prima facie showing of specific personal jurisdiction.
According to Plaintiffs, “[t]here is no question that the three
predicate elements of the ‘effects’ test are met” because Defendants
are alleged to have “(1) committed intentional acts (stock
manipulation and communications fraud which are, inter alia,
predicate acts under the UPUAA); (2) expressly aimed at Utah (Raser
and the other [Plaintiffs]); (3) causing harm, the brunt of which is
suffered—and which the [Defendants] knew was likely to be
suffered—in Utah.”
¶ 55 The district court rejected this argument and concluded
that Plaintiffs “ha[d] not shown that [D]efendant’s conduct was
expressly aimed at Utah,” and that they therefore failed to satisfy the
second-prong of the effects test. We therefore focus our discussion to
whether the district court correctly concluded that Plaintiffs had not
pled that Defendants expressly aimed their conduct at Utah.
¶ 56 Plaintiffs appear to argue that Defendants’ conduct
satisfied the “express aiming” prong because the “conduct was
intended to manipulate the price of Raser’s stock which trades on a
national stock exchange in every state, including Utah.” Plaintiffs
also argue that Defendants “knew that Raser’s headquarters was in
Utah, and, accordingly, that a large number of insiders were located
in Utah and any buy-back of Raser’s stock would originate from this
State.” And Plaintiffs allege that “the scheme was intended to drive
[Raser] into bankruptcy so that [Defendants] could realize the full
benefit and avoid detection of their illegal short-selling activities.”
Plaintiffs also attempt to connect Defendants’ actions to Utah by
describing impacts that they allege occurred more broadly—“More
than 250 Utah shareholders had millions in equity destroyed,”
“More than 40 Utah residents lost their jobs,” “At least 499 Utah
creditors lost money from Raser’s bankruptcy,” “The State of Utah
lost more than $1.7 million and Beaver County lost nearly $2
million,” “Six other Utah counties . . . lost money,” and “Dozens of
Utah companies lost millions of dollars.”
¶ 57 Although this type of showing might have been sufficient
to establish jurisdiction under the effects test we envisioned in Pohl,
see Pohl, Inc. of Am. V. Webelhuth, 2008 UT 89, ¶¶ 32, 35, 201 P.3d 944;
see also ClearOne, Inc. v. Revolabs, Inc., 2016 UT 16, ¶ 15 & n.34, 369
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RASER v. MORGAN STANLEY
Opinion of the Court
P.3d 1269, 16 it does not meet the standard the Supreme Court
outlined in Walden. ClearOne, in accordance with Walden, instructs
that the defendant’s conduct must connect him to the forum in some
meaningful way. 2016 UT 16, ¶¶ 21–26. Allegations of price
manipulation on a national exchange do not, standing alone,
describe conduct that connects any individual defendant to Utah in a
meaningful way. General allegations of out-of-state conduct whose
effects ripple into Utah cannot, by themselves, establish specific
jurisdiction.
¶ 58 Walden illustrates that these kinds of ripple effects,
divorced from conduct aimed at a plaintiff in the forum state, are
insufficient. There, it was “undisputed that no part of petitioner’s
course of conduct occurred in Nevada.” Walden v. Fiore, 571 U.S. 277,
288 (2014). “Petitioner never traveled to, conducted activities within,
contacted anyone in, or sent anything or anyone to Nevada.” Id. at
289. The Supreme Court rebuked the Ninth Circuit’s conclusion that
the “petitioner’s knowledge of respondents’ ‘strong forum
connections’” and that “respondents suffered foreseeable harm in
Nevada, satisfied the ‘minimum contacts’ inquiry.” Id. (citation
omitted). The Supreme Court explained that “[s]uch reasoning
improperly attributes a plaintiff’s forum connections to the
defendant and makes those connections ‘decisive’ in the
jurisdictional analysis.” Id.
¶ 59 Walden therefore makes clear that a defendant’s knowledge
of a plaintiff’s connections to the forum state coupled with the
defendant’s suffering a foreseeable harm, cannot, by themselves,
satisfy the minimum contacts analysis. Plaintiffs’ allegations that
Defendants “knew that Raser’s headquarters was in Utah, and,
accordingly, that a large number of insiders were located in Utah,”
and that “the scheme was intended to drive [Raser] into
bankruptcy,” which resulted in injuries suffered in Utah, without
more, is insufficient.
¶ 60 Indeed, it is difficult to distinguish Plaintiffs’ allegations
from those the Supreme Court found wanting in Walden. In Walden,
the defendant’s seizure of the plaintiffs’ cash in Georgia did not give
_____________________________________________________________
16 In ClearOne we noted that Pohl “suggests that there is no need
to examine whether the defendant had any contacts with the forum
state besides the injury felt by the plaintiff, because any intentional
tort committed against a resident of a forum state can be of itself a
sufficient minimum contact.” ClearOne, 2016 UT 16, ¶ 15.
.
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rise to jurisdiction in Nevada, even though the Drug Enforcement
Administration agent knew that the plaintiffs lived in Nevada and
would suffer the consequences of that seizure in Nevada. Walden,
571 U.S. at 288–91. Plaintiffs similarly allege that the effects of the
short sales, which are not alleged to have taken place in Utah, would
be felt by Raser in Utah.
¶ 61 Walden requires more. And Walden lists some of the kinds
of contacts that might suffice: “physical entry into the State—either
by the defendant in person, or through an agent, goods, mail, or
some other means—is certainly a relevant contact.” Id. at 285. To
establish specific jurisdiction, each plaintiff must establish an
adequate link between themselves and each defendant, and an
adequate link between Utah and their claims.
¶ 62 Our ability to assess whether Utah can assert jurisdiction
over any of Defendants is compromised by the fact that the district
court analyzed Plaintiffs’ claims and Defendants’ contacts with
Plaintiffs collectively. Six plaintiffs—Raser, Kelly Trimble, Mark
Sansom, Ocean Fund, Warner Investments, and Maasai—brought
claims against Merrill, Merrill Clearing, Merrill International,
Goldman, Goldman Clearing, and Goldman International.
¶ 63 To test jurisdiction, the district court should have
separately analyzed each plaintiff, its claims, its claims’ connections
to the forum, and each defendant’s connections to the forum in
relation to those claims. The district court’s failure to analyze
jurisdiction with that specificity means that we do not have the
record before us that would allow us to review with any confidence
the district court’s conclusion that jurisdiction is improper.
¶ 64 Our insistence on this type of analysis assumes importance
here, because it appears, based upon what we do have in front of us,
that Plaintiffs may have put forward a prima facie case for the
assertion of jurisdiction over Merrill with respect to the claims Ocean
Fund advances. Although not entirely clear from what is in the
appellate record, it appears that Ned Warner, as 100 percent owner
and managing member of Ocean Fund, contacted Merrill after
Raser’s CEO approached him about releasing two million of his
shares for the CBO. Merrill “represented to [Warner] that [his] shares
would only be used by participants in the CBO,” and Warner stated
in an affidavit that “[i]n reliance upon [Merrill’s] representations, I
opened an account at Merrill[’s] . . . Provo, Utah office and had my
shares delivered for deposit into my newly opened account.”
¶ 65 Warner explained that he “signed various documents to
open the account, including the Master Securities Loan
21
RASER v. MORGAN STANLEY
Opinion of the Court
Agreement. . . .” And Warner had the stock certificates delivered to a
Merrill office located in Provo, Utah. Warner exchanged several
emails and telephone calls with Merrill in the months following the
release of his stock, and entered into a written agreement regarding
the limited use of his stock. After repeatedly reaching out to Merrill
to confirm that his stocks were not being used in a short sale, Warner
received written-confirmation from Merrill that his stock would not
be used to short Raser.
¶ 66 Because of the lack of factual development in the record
before us—for example, the record is unclear as to the extent to
which Merrill initiated any of the contacts with Ocean Fund as well
as the volume of the emails and telephone calls—we do not opine on
whether jurisdiction over Merrill is proper. But we emphasize that
this highlights that individualized examination of the contacts and
claims might yield disparate results for different defendants. We
remand to permit the district court to determine whether sufficient
minimum contacts exist to permit the exercise of specific jurisdiction
over any defendant on any of plaintiff’s claim.
¶ 67 We also flag one aspect of the district court’s order to
provide guidance on remand. In its order, the district court hinted at
the potential exercise of jurisdiction over Merrill:
[Merrill] had stock loan agreements with Raser
shareholders, one of which is Plaintiff Ocean Fund,
LLC, and plaintiffs contend that [Merrill] breached
those agreements by using borrowed Raser shares to
support short sales rather than hedging. If Ocean Fund
were asserting a claim for breach of those agreements,
or any claim that could fairly be said to arise out of a
breach of those agreements, the court would have
personal jurisdiction over [Merrill] to entertain a claim
by Ocean Fund. But plaintiffs do not allege a breach of
those agreements. Their [Utah Pattern of Unlawful
Activity Act] claim is considerably more involved and,
by necessity, requires participation by other defendants
over whom the court cannot exercise personal
jurisdiction . . . .
¶ 68 To the extent the district court intended to suggest that
contacts associated with contract formation can never be used as a
basis to exercise specific jurisdiction over a tort claim related to that
contract, we note that courts have expressed different views on the
topic and that we appear to have not explicitly offered our opinion.
.
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¶ 69 In Toussant v. Williams, the United States District Court for
the Eastern District of Pennsylvania acknowledged that contacts
arising out of a contractual relationship may be sufficient contacts to
establish personal jurisdiction over a tort claim. 62 F. Supp. 3d 417,
425–27 (E.D. Pa. 2014). In Toussant, the plaintiff entered into several
contracts for health related services with the defendant. Id. at 420.
The plaintiff brought several contract and tort claims against the
defendant after allegedly suffering racial antagonism, unwanted
touching, and harassment at the hands of the defendant, among
other things. Id. at 420–21. The defendant moved to dismiss for lack
of personal jurisdiction, but the plaintiff responded that “her injuries
relate directly to the contracts she had entered [into] with
[d]efendant and that these injuries would not have occurred but for
the . . . contractual relationship.” Id. at 425. The court analyzed each
of the tort claims, and concluded that some of the tort claims were
not sufficiently related to the contracts and therefore the plaintiff
could not rely on the defendant’s contacts with respect to the
contracts to establish specific jurisdiction. Id. at 425–26. However, the
court concluded that the plaintiff’s fraud and fraudulent inducement
claims did relate to the contracts, because plaintiff “allege[d] that she
entered the contracts in reliance upon [d]efendant’s fraudulent
representations.” Id. at 426.
¶ 70 The Third Circuit has concluded that “[i]t is enough [to
establish the existence of minimum contacts] that a meaningful link
exists between a legal obligation that arose in the forum and the
substance of the plaintiffs’ claims.” O’Connor v. Sandy Lane Hotel Co.,
496 F.3d 312, 324 (3d Cir. 2007). In O’Connor, the court examined
contacts arising out of a contractual relationship and concluded that
although the “claims sound in tort, not contract,” because the
plaintiffs claimed a breach of duty identical to a duty assumed in a
contract between plaintiffs and the defendant, such an “intimate . . .
link justifies the exercise of specific jurisdiction as a quid pro quo”
for the defendants’ “right to form binding contracts in [the forum
state].” Id. at 323–24. However, the Third Circuit has also cautioned
that “[i]n analyzing jurisdictional contacts on a claim-by-claim basis,
[the court] ha[s] been careful to note that forum contacts supporting
a contract claim are not necessarily relevant to establishing
jurisdiction over a tort claim.” Miller Yacht Sales, Inc. v. Smith, 384
F.3d 93, 104 (3d Cir. 2004).
¶ 71 Because the parties have not briefed the issue, we do not
tackle it in this opinion, but to the extent the district court intended
to apply a rule that contacts arising out of a contract may never
support specific jurisdiction over a tort action, we emphasize that we
have never decided that question.
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RASER v. MORGAN STANLEY
Opinion of the Court
IV. Conspiracy Theory of Jurisdiction
¶ 72 Plaintiffs also argue that the district court erred by refusing
to employ the conspiracy theory of jurisdiction to exercise specific
jurisdiction over all Defendants. Plaintiffs argue that under a
conspiracy theory of jurisdiction, “Merrill’s Utah-based activities to
obtain the infusion of new stock necessary to support their illegal
scheme” can be imputed to the other members of the conspiracy,
who might otherwise lack sufficient minimum contacts with Utah.
The district court refused to adopt a conspiracy theory of
jurisdiction, because we declined to do so in Pohl, Inc. of America v.
Webelhuth, 2008 UT 89, 201 P.3d 944. In Pohl we stopped short of
adopting the conspiracy theory of jurisdiction because we “s[aw] no
need to adopt [the theory] . . . because the Calder ‘effects’ test
adequately addresse[d] the issue” in that case. 2008 UT 89, ¶ 29. 17
¶ 73 We invited supplemental briefing and heard additional
argument on the question of whether Utah should recognize a
conspiracy theory of jurisdiction. To answer that question we start
with the Utah Nonresident Jurisdiction Act (Act). The Act directs us
to “appl[y] [the statute] so as to assert jurisdiction over nonresident
defendants to the fullest extent permitted by the due process clause
of the Fourteenth Amendment to the United States Constitution.”
UTAH CODE § 78B-3-201(3). “This court has explicitly upheld that
policy.” SII MegaDiamond, Inc. v. Am. Superabrasives Corp., 2000 UT
71, 969 P.2d 430, 433. Thus, if we conclude that there is a conspiracy
theory of jurisdiction that comports with due process principles, the
legislature has already made the policy decision that we must
interpret the Act to include it.
¶ 74 Plaintiffs argue that a conspiracy theory of jurisdiction
comports with due process “if the co-conspirators to whom [the]
minimum contacts are imputed knew or should have known that
overt acts would occur in the forum state.” Plaintiffs posit that “there
potentially are circumstances where jurisdiction would be proper
even if a co-conspirator had no reason to know that overt acts would
occur in a specific forum.” A court using this analysis, Plaintiffs
_____________________________________________________________
17 “The basic premise of the conspiracy theory of personal
jurisdiction is that certain acts of one co-conspirator that are done in
furtherance of a conspiracy may be considered to be the acts of
another co-conspirator for purposes of determining whether a forum
state may exercise personal jurisdiction over the other
co-conspirator.” Mackey v. Compass Mktg., Inc., 892 A.2d 479, 484
(Md. 2006).
.
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assert, “can make an individualized assessment of each defendant’s
knowledge of forum-related overt acts,” which would meet the
demands of due process.
¶ 75 Defendants assert that “for specific jurisdiction to exist over
a non-resident defendant, the relationship between the defendant,
the forum, and the litigation must ‘arise out of contacts that the
defendant himself create[d] with the forum State.’” (Quoting Walden
v. Fiore, 571 U.S. 277, 283-84 (2014)). Defendants therefore contend
that “any exercise of personal jurisdiction over a defendant based on
the acts of a third party, including an alleged co-conspirator, would
violate due process.” And Defendants argue that a conspiracy theory
of jurisdiction is incompatible with the requirements of due process
because “courts analyzing specific personal jurisdiction must
conduct a separate analysis for each defendant.” (Citing Bristol-Myers
Squibb v. Superior Court of Cal., 137 S.Ct. 1773, 1783 (2017)).
¶ 76 We conclude that a conspiracy theory of jurisdiction can
satisfy due process concerns. Walden clarifies that the “contacts that
the ‘defendant himself’ creates with the forum State,” must be the
basis of specific jurisdiction, 571 U.S. at 284 (citation omitted), but
recognizes that these contacts may be through a third-party, id. at
286. The Supreme Court reasoned that a “defendant’s contacts with
the forum State may be intertwined with his transactions or
interactions with the plaintiff or other parties,” only drawing the line
that “a defendant’s relationship with a plaintiff or third party,
standing alone, is an insufficient basis for jurisdiction.” Id. at 286. 18
The Supreme Court also anticipated that an agency relationship may
give rise to contacts sufficient to subject a defendant to personal
jurisdiction, as Walden points to a defendant’s acts “through an
agent” as an example of one kind of “relevant contact” that may
subject an individual to jurisdiction. Id. at 285.
_____________________________________________________________
18 This is a principle that originates from International Shoe in
which the Supreme Court held that “[s]ince the corporate
personality is a fiction . . . the state of its origin can be manifested
only by activities carried on in its behalf by those who are authorized
to act for it.” Int’l Shoe Co. v. Wash. Office of Unemployment Comp.
&Placement, 326 U.S. 310, 316 (1945). “[T]he terms ‘present’ or
‘presence’ are used merely to symbolize those activities of the
corporation’s agent within the state which courts will deem to be
sufficient to satisfy the demands of due process.” Id. at 316–17.
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Opinion of the Court
¶ 77 Walden also approvingly discusses Calder v. Jones, 465 U.S.
783 (1984), a case that involved a relationship with a third-party that
gave rise to, in part, defendant’s minimum contacts with the forum
state sufficient to give rise to jurisdiction. Walden, 571 U.S. at 286–89.
In Calder, the out-of-state defendants argued that their contacts with
California were insufficient for personal jurisdiction because “their
employer was responsible for circulation of the article” that formed
the basis of the plaintiff’s libel claims. Id. at 288 n.7 (citing Calder, 465
U.S. at 789).
¶ 78 The Court rejected this argument, responding that the
defendants “expressly aimed” their allegedly tortious actions at
California “because they knew” their employer, the National
Enquirer, had its largest circulation in California, and that the article
would “have a potentially devastating impact” there. Id. (citing
Calder, 465 U.S. at 789–90). While the defendants were “not to be
judged according to their employer’s activities [in California,] . . .
their status as employees d[id] not somehow insulate them from
jurisdiction.” Calder, 465 U.S. at 790. The defendants’ relationship to
the employer who circulated the article in California therefore
formed part of the basis for jurisdiction over the defendants. See id.¶ 79 Walden and Calder therefore indicate that the acts of a third-
party—such as an agent—can, in some circumstances, provide a
basis to exercise jurisdiction over an out-of-state defendant. 19 And
_____________________________________________________________
19 Bristol-Myers Squibb leaves open the door that the relationship
between a defendant and a third-party may provide a basis to
exercise jurisdiction, so long as that relationship is relevant to the
case at hand. 137 S. Ct. 1773.
In Bristol-Myers Squibb, the non-resident plaintiffs contended that
because the defendant out-of-state pharmaceutical company
contracted with a company in the forum state to distribute the drug
in question nationally, there was a sufficient basis for personal
jurisdiction over the pharmaceutical company in the forum state. Id.
at 1783. The Court quoted Walden: “a defendant’s relationship with a
. . . third party, standing alone, is an insufficient basis for
jurisdiction.” Id. (alteration in original) (quoting Walden, 571 U.S. at
286). “What is needed—and what is missing here—is a connection
between the forum and the specific claims at issue.” Id.
But the Bristol-Myers Squibb analysis did not reason that the
pharmaceutical company’s contractual relationship with an in-state
company could never be relevant to the specific jurisdiction analysis.
Rather, the Court stated that it had not been alleged that the
(continued . . .)
.
26
Cite as: 2019 UT 44Opinion of the Court
because a conspiracy is a type of agency relationship, an act taken
during the course of a conspiracy relationship may lead to specific
personal jurisdiction over a defendant. 20 See State v. Erwin, 120 P.2d
285, 299 (Utah 1941) (holding in a criminal context that “when [a
conspiracy] is proved, each conspirator becomes the agent of his
co-conspirator”); see also Pyper v. Reil, 2018 UT App 200, ¶ 16, 437
P.3d 493 (“[A] conspirator may be liable for a co-conspirator’s
unlawful acts in furtherance of the conspiracy.”) 21
pharmaceutical company “engaged in relevant acts together” with
the in-state company. Id. And the non-resident plaintiff failed to put
forward any evidence of how the in-state company was connected to
the medication that the plaintiffs received. Id. Bristol-Myers Squibb
therefore stands for the proposition that “the bare fact” that there is a
relation between an in-state individual and out-of-state party does
not give rise to specific jurisdiction over the out-of-state defendant,
not that a relationship between an in-state individual and an out-of-
state party can never give rise to specific jurisdiction. See id.20 The practical application of this is that if Plaintiffs can establish
specific jurisdiction over a single defendant, they might be able to
demonstrate that that defendant was acting as an agent of some of
the other defendants. For example, if jurisdiction can be properly
exercised over Merrill, Walden permits plaintiffs to attempt to show
that Merrill acted as an agent for Merrill Pro, Merrill International,
and Goldman Sachs, and that those defendants expressly aimed their
conduct towards Utah through Merrill. See Walden, 571 U.S. at 285.
21 While Utah courts have apparently not yet opined that
conspirators are considered agents for jurisdictional purposes, other
jurisdictions have already reached this conclusion. See, e.g., Emerald
Asset Advisors, LLC v. Schaffer, 895 F. Supp. 2d 418, 431 (E.D.N.Y.
2012) (“New York [c]ourts have defined ‘agent’ broadly to include
not only a defendant’s formal agents, but also, under certain
circumstances, a defendant’s co-conspirators.” (alteration in original)
(citation omitted) (internal quotation marks omitted)); Hercules Inc. v.
Leu Tr. & Banking (Bahamas) Ltd., 611 A.2d 476, 481 (Del. 1992) (“It is
not an arcane concept that conspirators are considered agents for
jurisdictional purposes. Indeed, courts have defined ‘agent’ broadly
to include not only a defendant’s non-resident’s formal agents but
also a defendant’s co-conspirators.”); Am. Int’l Grp., Inc. v. Greenberg,
965 A.2d 763, 815 (Del. Ch. 2009) (interpreting the term ‘agent’ in
Delaware’s long-arm statute to include a co-conspirator); Mackey, 892
A.2d at 495 (holding that “one co-conspirator may be the ‘agent’ of
(continued . . .)
27
RASER v. MORGAN STANLEY
Opinion of the Court
¶ 80 Mackey v. Compass Marketing—while a pre-Walden case—
provides a helpful discussion of the conspiracy theory. 892 A.2d 479(Md. 2006). The Maryland court concluded that the “relationship
between co-conspirators required by the conspiracy theory” ensures
that if a co-conspirator is subjected to personal jurisdiction of a
forum state, that a co-conspirator “has fair warning that he or she
could be subjected to suit in the forum state sufficient to satisfy the
due process concerns about fair warning of the possibility of suit.”
Id. at 489. The Maryland court explained that the conspiracy theory
of jurisdiction does not violate the Supreme Court’s command that
personal jurisdiction not be based on the unilateral actions of a third
party:
By the terms of the conspiracy theory, a co-conspirator
to whom the acts of another co-conspirator are
attributed must have agreed to participate in a
conspiracy that he or she could reasonably have
expected at the time of agreement to involve the
forum-related actions attributed to him or her. The acts
attributed are not simply unilateral acts of the
co-conspirator who literally performed them, but are
also the acts of the other co-conspirator.
Id. at 490–91.
¶ 81 The Maryland court articulated the test for conspiracy
jurisdiction:
(1) two or more individuals conspire to do something
(2) that they could reasonably expect to lead to
consequences in a particular forum, if
(3) one co-conspirator commits overt acts in
furtherance of the conspiracy, and
(4) those acts are of a type which, if committed by a
non-resident, would subject the non-resident to
personal jurisdiction under the long-arm statute of the
forum state, then those overt acts are attributable to the
other co-conspirators, who thus become subject to
personal jurisdiction in the forum, even if they have no
direct contacts with the forum.
another co-conspirator within the meaning of [Maryland’s long-arm
statute]”).
.
28
Cite as: 2019 UT 44Opinion of the Court
Id. at 486 (emphasis added) (quoting Cawley v. Bloch, 544 F. Supp.
133, 135 (D. Md. 1982). The court concluded that if this test is
satisfied, the “overt acts” of one co-conspirator are “attributable to
the other co-conspirator[],” who becomes subject to personal
jurisdiction in the forum, “even if they have no direct contacts with
the forum.” Id. (citation omitted).
¶ 82 In Tricarichi v. Cooperative Rabobank, U.A., the Nevada
Supreme Court affirmed the viability of the conspiracy theory of
jurisdiction after Walden and adopted a test similar to that in Mackey.
440 P.3d 645 (Nev. 2019). 22 The Nevada Supreme Court required that
the plaintiff plead with particularity that the defendant “could have
reasonably expected at the time of entering into the conspiracy that
their actions would have consequences in the forum state.” Id. at 654.
“To support jurisdiction based on conspiracy theory and satisfy due
process,” the Nevada court adopted a test that requires a plaintiff to
show “(1) an agreement to conspire, (2) the acts of co-conspirators
are sufficient to meet minimum contacts with the forum, and (3) the
co-conspirators reasonably expected at the time of entering into the
conspiracy that they would be subject to jurisdiction in the forum
state.” Id. at 653 (citing Gibbs v. PrimeLending, 381 S.W.3d 829, 832
(Ark. 2011); Mackey, 892 A.2d at 489 ). 23
¶ 83 Other courts that have adopted or affirmed the conspiracy
theory of jurisdiction after Walden have stated the inquiry differently
and focused on whether the defendant knew (or in some cases,
should have known) of her co-conspirator’s acts in the forum state.24
_____________________________________________________________
22Tennessee also affirmed the adoption of this form of the
conspiracy theory of jurisdiction in a post-Walden case. See First
Cmty. Bank, N.A. v. First Tenn. Bank, N.A., 489 S.W.3d 369, 394–95
(Tenn. 2015).
23The Nevada Supreme Court noted that the Nevada court had
previously recognized the conspiracy theory of jurisdiction in a pre-
Walden case, Davis v. Eighth Judicial Dist. Court, 629 P.2d 1209, 1211,
1213 (Nev. 1981), superseded by rule on other grounds, as recognized in
Hansen v. Eighth Judicial Dist. Court, 6 P.3d 982, 983-85 (Nev. 2000).
Although we look to Nevada’s test to formulate ours, we opt to state
the inquiry in terms that are perhaps more reflective of the way the
United States Supreme Court spoke about jurisdiction in Walden.
Other jurisdictions have also, post-Walden, applied a form of the
24
conspiracy theory of jurisdiction. But it appears they have done so
without explicitly evaluating the potential impact of Walden on the
(continued . . .)
29
RASER v. MORGAN STANLEY
Opinion of the Court
For example, the United States District Court for the District of
Columbia concluded that “following Walden, a plaintiff who seeks to
establish jurisdiction over a defendant based on a co-conspirator’s
contacts must plead, at a minimum, that the defendant knew his
co-conspirator was carrying out acts in furtherance of the conspiracy
in the forum.” EIG Energy Fund XIV, L.P. v. Petróleo Brasileiro S.A., 246
F. Supp. 3d 52, 91 (D.D.C. 2017); accord Cockrum v. Donald J. Trump for
President, Inc., 319 F. Supp. 3d 158, 185–86 (D.D.C. 2018) (“[I]f any
conspiratorial jurisdiction survives Walden, a plaintiff pursuing such
a theory must allege that the defendant knew of the co-conspirator’s
acts in the forum.”). The United States District Court for the Eastern
District of Pennsylvania adopted a conspiracy theory of jurisdiction
which required that a plaintiff “allege that substantial acts in
furtherance of the conspiracy occurred within the forum state and
that the foreign defendant was, or should have been, aware of
them.” United Healthcare Servs., Inc., v. Cephalon, Inc., No. 17-555, 2018
WL 878766, at *3 (E.D. Pa. Feb. 13, 2018) (citation omitted). And a
New Jersey court reached a similar conclusion, holding that the
plaintiffs had not satisfied the conspiracy theory of jurisdiction
because there was not “evidence the[] defendants knew or should
have known their alleged co-conspirators would take action in this
State.” Fairfax Fin. Holdings Ltd. v. S.A.C. Capital Mgmt., L.L.C., 160
A.3d 44, 90 (N.J. Super. Ct. App. Div. 2017). 25
test. Charles Schwab Corp. v. Bank of Am. Corp., 883 F.3d 68, 86 (2d Cir.
2018); Garcia v. Peterson, 319 F. Supp. 3d 863, 888 (S.D. Tex. 2018); My
Size, Inc. v. Mizrahi, 193 F. Supp. 3d 327, 333 (D. Del. 2016); BeoCare
Grp., Inc. v. Morrissey, 124 F. Supp. 3d 696, 702 (W.D.N.C. 2015).
25 Defendants assert that it is not enough that a defendant has
knowledge of her co-conspirator’s acts in the forum state. They rely
on Walden’s reasoning that a defendant’s knowledge of a plaintiff’s
“strong forum connections” and foreseeability of harm to the
plaintiff in the forum state cannot satisfy the minimum contacts
requirement of due process. 571 U.S. at 289 (citation omitted). The
Court concluded that such reasoning “improperly attributes a
plaintiff’s forum connections to the defendant and makes those
connections ‘decisive’ in the jurisdictional analysis.” Id. Defendants
conflate a defendant’s knowledge of her co-conspirator with a
defendant’s knowledge of the plaintiff, however. A defendant has
taken an action to become part of a conspiracy, which makes a
defendant’s knowledge of her co-conspirator’s actions in the forum
(continued . . .)
.
30
Cite as: 2019 UT 44Opinion of the Court
¶ 84 Although both articulations seem to drive to the same
conclusions, we prefer a test that focuses on the bedrock principle
that for jurisdiction to comport with due process, an individual
defendant’s contacts must be “such that he should reasonably
anticipate being haled into court there.” World-Wide Volkswagen Corp.
v. Woodson, 444 U.S. 286, 297 (1980). Although in the context of a
conspiracy this will frequently boil down to what a defendant knew
or should have known her co-conspirators were doing in the forum,
there may well be cases in which the state of a defendant’s
knowledge may not perfectly align with her ability to reasonably
anticipate being haled into court in a particular state.26
¶ 85 We therefore adopt a conspiracy theory of jurisdiction that
focuses on whether the defendant could have reasonably anticipated
being subject to jurisdiction in the forum state because of her
participation in the conspiracy. To assert specific personal
jurisdiction, the plaintiff must plead with particularity that (1) the
defendant is a member of a conspiracy, (2) the acts of the defendant’s
co-conspirators create minimum contacts with the forum, and (3) the
defendant could have reasonably anticipated that her
co-conspirator’s actions would connect the conspiracy to the forum
state in a meaningful way, such that she could expect to defend
herself in that forum.
¶ 86 Echoing concerns that have been expressed by other courts,
we adopt this test “‘warily’ in order ‘to prevent a broad extension of
state relevant to the jurisdictional inquiry, while the defendant’s
knowledge of the plaintiff’s actions in the forum state is not.
26 This, of course, suggests the question of what are the contacts
that would cause a person to reasonably anticipate being haled into
court. We emphasize that there is no special or different test for
minimum contacts in this setting. As Walden instructs, “[W]e have
upheld the assertion of jurisdiction over defendants who have
purposefully ‘reach[ed] out beyond’ their State and into another by,
for example, entering a contractual relationship that ‘envisioned
continuing and wide-reaching contacts’ in the forum State, or by
circulating magazines to ‘deliberately exploi[t]’ a market in the
forum State.” 571 U.S. at 285 (second and fourth alterations in
original) (citations omitted). “And although physical presence in the
forum is not a prerequisite to jurisdiction, physical entry into the
State—either by the defendant in person or through an agent, goods,
mail, or some other means—is certainly a relevant contact.” Id.
31
RASER v. MORGAN STANLEY
Opinion of the Court
long-arm jurisdiction.;” EIG Energy Fund, 246 F. Supp. 3d at 90
(citation omitted). To curb the unintended and improper expansion
of long-arm jurisdiction, courts applying this test will need to
carefully assess the relationship between each individual defendant
and the conspiracy to assess whether that individual defendant’s
relationship with the conspiracy and forum is such that she could
reasonably anticipate being haled into court in the state. And a
district court will need to assure itself that the exercise of jurisdiction
over a co-conspirator is constitutional by examining the role the co-
conspirator played in the conspiracy and the contacts between the
conspirators and the forum state.
¶ 87 We also stress that plaintiffs must plead with specificity
each element of the conspiracy theory of jurisdiction. See Pohl, 2008
UT 89. “[A] bare allegation of a conspiracy between the defendant
and a person within the personal jurisdiction of the court is not
enough to establish jurisdiction.” Id. ¶ 30 (citation omitted) (internal
quotation marks omitted). “[T]he plaintiff bears the burden of clearly
alleging facts that demonstrate the existence of a conspiracy.” Id.
“[T]he complaint must set forth reasonably definite factual
allegations, either direct or inferential, regarding each material
element needed to show a civil conspiracy.” Id. (citation omitted)
(internal quotation marks omitted). 27 On remand, Plaintiffs will need
to demonstrate that their pleadings conform to this standard.
CONCLUSION
¶ 88 We vacate and remand to the district court with the
instruction to examine each defendant’s contacts with Utah, assess
the conspiracy theory of jurisdiction, and determine how each
plaintiff’s claim relates to each defendant and Utah and to address, if
necessary, Defendants’ alternative arguments for dismissal.
_____________________________________________________________
27 Other jurisdictions also require that a plaintiff satisfy a
heightened pleading standard. See, e.g., Doe v. Hesketh, 15 F. Supp. 3d
586, 595 (E.D. Pa. 2014) (holding that co-conspirator jurisdiction is
recognized “where the plaintiff alleges specifically how co-
conspirators related to each other in order to make a prima facie
showing of personal jurisdiction”).
.
32