Case Information
*1
This opinion is subject to revision before final
publication in the Pacific Reporter
IN THE
S UPREME C OURT OF THE S TATE OF U TAH
C NE , I NC ., Appellant,
v. , I NC .,
Appellee. No. 20141184 Filed April 1, 2016 On Direct Appeal Third District, Salt Lake The Honorable Judge Kate A. Toomey Case No. 140905197 Attorneys:
James E. Magleby, Christine T. Greenwood, Jennifer Fraser Parrish,
Kennedy Davis Nate, Salt Lake City, for appellant
Steven W. Dougherty, Andrew R. Hale, Salt Lake City, for appellee
C HIEF J USTICE D URRANT authored the opinion of the Court, in which
A SSOCIATE HIEF J USTICE L EE , J USTICE D URHAM , and J USTICE H IMONAS joined.
J USTICE J OHN A. P EARCE became a member of the Court on December 17, 2015, after oral argument in this matter, and accordingly did not participate.
C HIEF J USTICE D URRANT , opinion of the Court:
Introduction This case presents us with the opportunity to review and
apply the United States Supreme Court‘s recent cases on both specific and general personal jurisdiction. The question is whether Revolabs, a corporation incorporated in Delaware with its principal place of business in Massachusetts, is subject to either specific or general personal jurisdiction in Utah. The underlying dispute arose when Revolabs allegedly interfered with ClearOne‘s contractual relationship with Timothy Mackie by recruiting and hiring him while he was still employed by ClearOne. ClearOne brought suit against Revolabs, asserting claims of intentional interference with a contractual relationship, predatory hiring, and aiding and abetting a breach of fiduciary duty. The trial court granted Revolabs‘s motion to dismiss for lack of personal jurisdiction, which ruling ClearOne now appeals. After a review of the United States Supreme Court‘s personal jurisdiction jurisprudence, we conclude that Revolabs has insufficient contacts with Utah to subject it to jurisdiction here and affirm.
Background Plaintiff ClearOne is a Utah corporation that designs,
develops, and sells audio-visual equipment, with its principal place
of business in Utah. Defendant Revolabs is a competitor that is
incorporated in Delaware with its principal place of business in
Massachusetts. Mr. Mackie is a former employee of ClearOne who
worked for ClearOne in a technical sales position from November
2009 to September 2013. In December 2009, Mr. Mackie entered into
a Confidentiality, Non-Competition, and Invention Assignment
Agreement with ClearOne. This employment contract included
provisions preventing Mr. Mackie from competing with ClearOne
during his employment and for one year after the employment
ended and prohibiting him from soliciting ClearOne customers for
the same one-year period. There were also a number of other
provisions relating to the confidentiality of customer information
and trade secrets. Both the contract and the fiduciary duties owed by
Mr. Mackie to ClearOne were to be performed, at least in part, in
Utah and were governed by Utah law. Mr. Mackie resided in Texas
As this is an appeal from the dismissal of the case under rule
12(b)(2) of the Utah Rules of Civil Procedure, ―we must ‗accept the
factual allegations in the complaint as true and consider all
reasonable inferences to be drawn from those facts in a light most
favorable to the plaintiff.‘‖
Ho v. Jim’s Enters., Inc.
,
during these events, and the only allegations as to where Mr. Mackie performed his work for ClearOne indicates that he worked in Texas.
¶ 3 In August 2013, Mr. Mackie, while still residing in Texas, contacted individuals at Revolabs about leaving ClearOne to work for Revolabs. Over the next several weeks, Mr. Mackie communicated with several individuals about this potential transition through calls, video chats, and emails. These individuals included: Curtiss Singleton, Revolabs‘s director of sales for the Americas, who was located in Georgia; Marc Cremer, Revolabs‘s chief operating officer, who was located in Massachusetts; Daniel Kleman, Revolabs‘s field sales engineer for its western region, who was located in California; and Jonathan McGarry, Revolabs‘s field sales engineer for its eastern region, who was located in Massachusetts. After several discussions and interviews, Mr. Cremer offered Mr. Mackie a position at Revolabs on September 3, 2013, which Mr. Mackie accepted. Mr. Mackie executed an employment and confidentiality agreement with Revolabs on September 6, 2013, and tendered his resignation to ClearOne on September 9, 2013, stating that his last day would be September 20, 2013. Mr. Mackie began working for Revolabs on September 23, 2013. No part of these events took place in Utah. On December 19, 2013, ClearOne filed suit against
Mr. Mackie in Utah district court for, inter alia , breach of the employment agreement, which litigation remains pending in a separate action. After learning of Revolabs‘s involvement with and encouragement of Mr. Mackie‘s resignation, ClearOne filed suit against Revolabs in Utah district court on July 30, 2014. ClearOne sought damages and an injunction for Revolabs‘s alleged tortious interference with Mr. Mackie‘s employment contract, predatory hiring under the Utah Unfair Competition Act, and aiding and abetting Mr. Mackie‘s alleged breach of his fiduciary duties to ClearOne. Prior to discovery being conducted, Revolabs filed a motion
to dismiss under Utah Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. ClearOne opposed the motion and filed its own motion seeking jurisdictional discovery in order to determine whether Revolabs should be subject to general jurisdiction in Utah. As evidence in support of its claim that Revolabs had systematic and continuous contacts with Utah, ClearOne pointed to Revolabs‘s publicly accessible website; the fact that Revolabs is included in an online directory of Utah businesses maintained by the Utah Department of Workforce Services (though the site states that Revolabs currently has no employees in Utah); and a bid solicitation by Utah Valley University for audio-visual equipment, including equipment sold by Revolabs. Revolabs responded to this evidence with an affidavit stating that it ―does not maintain or conduct any business operations in the state of Utah and does not direct any advertising into Utah; it has no offices in Utah, owns no property in Utah[,] and maintains no employees in Utah.‖ ClearOne has not disputed this statement. The trial court denied ClearOne‘s request for discovery and granted Revolabs‘s motion to dismiss. ClearOne appealed the trial court‘s decision.
Standard of Review ClearOne raises two claims on appeal: first, the trial court
erred in dismissing Revolabs for lack of specific personal jurisdiction. ―[T]he propriety of a 12(b)(2) dismissal is a question of law, [and] we give the trial court‘s ruling no deference and review it under a correctness standard.‖ Second, the trial court erred in denying discovery to determine whether Revolabs was subject to general personal jurisdiction in Utah. We review the trial court‘s decision on this issue for abuse of discretion. We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(j).
Analysis ―The authority of the state to hale a nonresident into a state
court hinges on the ability to establish personal jurisdiction.‖ And a
court‘s exercise of personal jurisdiction over a party must be
―consistent with the due process protections of the Fifth and
Fourteenth Amendments to the United States Constitution.‖ There
Ho v. Jim’s Enters., Inc.
, 2001 UT 63, ¶ 6, 29 P.3d 633 (citation
omitted).
See Sizova v. Nat’l Inst. of Standards & Tech.
,
(10th Cir. 2002).
Pohl, Inc. of Am. v. Webelhuth
,
The exercise of jurisdiction must also satisfy our long-arm statute. See Anderson v. Am. Soc’y of Plastic & Reconstructive Surgeons , 807 P.2d 825, 827 (Utah 1990). Because ―our legislature has directed us to construe [the long-arm statute] ‗so as to assert jurisdiction over nonresident defendants to the fullest extent permitted by the due process clause,‘‖ and as the parties have not argued over the applicability of the statute, we can ―assume the application of the
(Continued) are two categories of personal jurisdiction, specific and general jurisdiction, both of which are implicated in this case. ClearOne first argues that the trial court erred in dismissing Revolabs for lack of specific personal jurisdiction. Alternatively, ClearOne claims that the court abused its discretion by denying ClearOne the opportunity to conduct discovery in order to determine whether Revolabs should be subject to general personal jurisdiction. Below, we discuss these two issues in turn and affirm.
I. Revolabs Is Not Subject to Specific Personal Jurisdiction in Utah ―[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 . . . .‖ The United States Supreme Court has interpreted the Due Process Clause of the Fourteenth Amendment to permit a state to exercise specific 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.‘‖ ―In judging minimum contacts, a court properly focuses on ‗the relationship among the defendant, the forum, and the litigation.‘‖ The Supreme Court recently clarified the kind of contacts with a state that satisfy this test in Walden v. Fiore . We first address Walden and its impact on the ―effects‖ test derived from the Supreme Court‘s decision in Calder v. Jones . In so doing, we recognize that the Supreme Court has rejected a particular approach to the minimum contacts test, which limits our decision in Pohl, Inc. of America v. Webelhuth . We then apply the principles found in to the present case, which lead us to the conclusion that the trial court was correct in dismissing Revolabs for lack of personal jurisdiction.
statute[ ]and go straight to the due process issue.‖ (citation
omitted).
See Pohl
,
(alteration in original) (citation omitted) Int’l Shoe Co. v. Wash., Office of Unemployment Comp. & Placement ,
A. Walden Narrowed the Broad Interpretation of Calder Adopted in Pohl ClearOne relies almost exclusively on our 2008 decision in Pohl, Inc. of America v. Webelhuth in support of its argument that Revolabs is subject to specific personal jurisdiction in Utah. Pohl in turn relied on a 1984 Supreme Court case, Calder v. Jones . The initial issue raised by the parties is whether the Supreme Court‘s decision in Walden altered or clarified Calder such that Pohl ‘s interpretation of Calder is no longer good law. Below, we address each case in the order it was decided and conclude that Walden , while not overruling Calder , significantly altered the interpretation of Calder that supported our decision in Pohl . Accordingly, the broad interpretation of the ―effects‖ test derived from Calder and adopted by us in Pohl has been narrowed by . Calder v. Jones
1. In Calder v. Jones , the Supreme Court was called on to decide whether two individuals, a reporter and an editor employed by the National Enquirer magazine, were subject to specific personal jurisdiction in California for their part in writing and editing an allegedly defamatory article. The relevant contacts linking the defendants to California were that the Enquirer circulated about 600,000 copies in California, and ―[t]he allegedly libelous story concerned the California activities of a California resident,‖ ―impugned the professionalism of an entertainer whose television career was centered in California,‖ and ―was drawn from California sources.‖ Further, ―the brunt of the harm, in terms both of respondent‘s emotional distress and the injury to her professional reputation, was suffered in California.‖ ―In sum, California [was] the focal point both of the story and of the harm suffered.‖ The Supreme Court accordingly held that jurisdiction was ―proper in California based on the ‗effects‘ of their Florida conduct in California.‖ , 465 U.S. at 784–86. The article suggested that the
respondent, Shirley Jones, drank so heavily that it interfered with her obligations as a television entertainer. at 788 n.9. Id. at 785, 788–89. at 789. Id. As the Ninth Circuit has noted, ―[s]ubsequent cases have
struggled somewhat with Calder ‘s import,‖ as the ―effects‖ language does not clarify how foreseeable the effects must be or to what degree the effects must impact the plaintiff or the forum state in order to give rise to specific jurisdiction. [16] One interpretation of Calder is a minimum contact analysis known as the ―effects‖ test. [17] This 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.‖ [18] It was this ―effects‖ test, interpreted broadly, that we relied upon in Pohl to reverse the trial court‘s determination that jurisdiction was improper. [19] Pohl, Inc. of America v. Webelhuth
2.
Pohl
involved a construction project in Missouri overseen by
a Missouri general contractor. Pohl, a Utah corporation, was
contracted to manufacture and supply panels to be installed on the
exterior of the building. Disputes arose over the ―production,
delivery, and payment schedule for the panels,‖ leading to Pohl‘s
contract being terminated. Pohl sued the general contractor and
various other subcontractors and individuals, all of whom were
based in Missouri, alleging that they had conspired to interfere with
Bancroft & Masters, Inc. v. Augusta Nat’l Inc.
,
―restrictive view‖ that requires proof ―that the defendant target[ed]
the forum state, not merely a forum resident,‖ and a ―broad view,‖
which only requires proof ―that the defendant target[ed] a plaintiff
known to reside in the forum state.‖ Lee Goldman,
From to
and Beyond: The Proper Application of the “Effects Test” in
Personal Jurisdiction Cases
, 52 S AN D IEGO L. EV . 357, 365–66 (2015).
The Ninth Circuit‘s ―effects‖ test, which is the approach we adopted
in
Pohl
, is the ―broad view.‖ at 366.
Bancroft & Masters
,
Pohl‘s contract. [23] The district court dismissed the defendants for lack of personal jurisdiction, concluding that the defendants‘ actions ―were performed exclusively in the State of Missouri‖ and, accordingly, there was ―no nexus between Defendants‘ contacts with Utah and Plaintiff‘s claims,‖ and the court of appeals affirmed. [24] We reversed and remanded. [25] In reversing the court of appeals, we adopted a broad
formulation of the ―effects‖ test. We first discussed Calder , where jurisdiction in California was appropriate because ―California [was] the focal point both of the [defamatory] story and of the harm suffered.‖ [26] We did not discuss any of the specific contacts that were present in Calder , such as the extensive circulation of the magazine in California or the defendants‘ use of California sources in writing the story. We noted only that the defendants in that case ―did not go to California to work on the story.‖ We summarized Calder as permitting jurisdiction ―[b]ecause the reporters knew that their tort would cause harm in California.‖ We then reviewed the ―effects‖ test derived from Calder ,
which ―may be satisfied if the defendant is alleged to have
(1) committed an intentional act; (2) expressly aimed at the forum
state; (3) causing harm, the brunt of which is suffered—and which
the defendant knows is likely to be suffered—in the forum state.‖ In describing how these prongs could be satisfied, we discussed a
Ninth Circuit case,
Harris Rutsky & Co. Insurance Services v. Bell &
Id.
¶¶ 4–6.
Id.
¶¶ 6–7.
Id.
¶ 31. We did not actually determine that jurisdiction was
proper because we had announced a new standard for determining
personal jurisdiction in conspiracy cases and remanded for further
proceedings. We also reversed the trial court and court of appeals‘
conclusion that our long-arm statute did not permit jurisdiction, an
issue not raised in this case.
See id.
¶¶ 12–22.
¶ 26 (quoting ,
Clements Ltd.
,
Clements Ltd. In that case, the second prong of the effects test— whether the defendant ―expressly aimed‖ conduct at the forum state—was satisfied because ―the defendants knew that the plaintiff corporation was a California resident, and so the alleged acts were expressly aimed at California.‖ The third prong—whether the brunt of the harm was suffered in the forum state—was also satisfied because ―the plaintiff was a California corporation with its principal place of business in California, and the brunt of the harm was therefore felt in California.‖ Thus, although our formulation of the ―effects‖ test focused
on a defendant‘s connections to the forum state, our description of
how the test could be satisfied centered on a defendant‘s connections
with a plaintiff who resided in the forum state.
Pohl
‘s broad
interpretation of
Calder
and the ―effects‖ test permitted jurisdiction
over a defendant so long as the defendant‘s tortious act targeted a
plaintiff known to be a resident of the forum and the injury was
suffered by the plaintiff in the forum state. Although we did not
apply this test to the defendants in
Pohl
, we did hold that the
defendants‘ actions—none of which took place in Utah and none of
which had any impact in Utah other than the alleged injury to the
plaintiff—could potentially satisfy the minimum contacts analysis.
over the defendants under the ‗effects‘ test by showing that the defendants were engaged in a conspiracy that was expressly aimed at Utah and that the conspiracy caused harm in Utah . . . .―).
(Continued) Ultimately, 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. The question before us today is whether, post- Walden , this formulation of and the ―effects‖ test remains viable. Walden v. Fiore
3.
In , the Supreme Court was asked ―to decide
whether a court in Nevada may exercise personal jurisdiction over a
defendant on the basis that he knew his allegedly tortious conduct in
Georgia would delay the return of funds to plaintiffs with
connections to Nevada.‖ The plaintiffs were professional gamblers
who, when returning from a gambling trip in Puerto Rico with
almost $100,000 in cash, were stopped by Mr. Walden, a DEA agent,
in Georgia. Mr. Walden seized the money and, after plaintiffs
returned to Nevada, allegedly drafted and submitted a false
probable cause affidavit. Plaintiffs filed a
Bivens
suit against
Mr. Walden in Nevada, seeking money damages for the alleged
violation of their Fourth Amendment rights. The federal district
court dismissed the suit, concluding ―that [Mr. Walden‘s] search of
[plaintiffs] and his seizure of the cash in Georgia did not establish a
basis to exercise personal jurisdiction in Nevada,‖ because the fact
that ―petitioner caused harm to respondents in Nevada while
knowing they lived in Nevada‖ was insufficient to confer
jurisdiction. The Ninth Circuit reversed, holding that Mr. Walden
―‗expressly aimed‘ his submission of the allegedly false affidavit at
Nevada by submitting the affidavit with knowledge that it would
Justice Wilkins dissented from the majority opinion on essentially
these grounds.
See id.
¶ 35 (Wilkins, J., dissenting) (―In this matter,
the actions complained of, while clearly impacting the Utah plaintiff,
just as clearly occurred in Missouri. None of the acts complained of
occurred in Utah.‖).
affect persons with a ‗significant connection‘ to Nevada‖ [40] —the same ―effects‖ test we adopted from the Ninth Circuit in Pohl . The Supreme Court then reversed the circuit court‘s
decision, holding that the Ninth Circuit‘s approach ―impermissibly allows a plaintiff‘s contacts with the defendant and forum to drive the jurisdictional analysis.‖ [41] The Court, eschewing a rigid test, looked to ―[t]wo related aspects‖ of ―the relationship among the defendant, the forum, and the litigation‖ to determine jurisdiction [42] : whether ―the relationship . . . arise[s] out of contacts that the ‗defendant himself ‘‘ creates,‖ and whether those contacts are ―with the forum State itself, not . . . with persons who reside there.‖ [43] The first aspect means that jurisdiction cannot be predicated ―on the ‗unilateral activity‘ of a plaintiff.‖ [44] And the second means that ―a defendant‘s relationship with a plaintiff or third party, standing alone, is an insufficient basis for jurisdiction.‖ [45] Indeed, the Court repeatedly emphasized that ―the plaintiff cannot be the only link between the defendant and the forum.‖ [46] The Court turned to Calder as an example of these principles. [47] It stated that, ―[a]lthough we recognized that the defendants‘ activities ‗focus[ed]‘ on the plaintiff, our jurisdictional inquiry . . . examined the various contacts the defendants had created with California (and not just with the plaintiff) by writing the allegedly libelous story.‖ The Supreme Court clarified that jurisdiction in was possible not because the plaintiff suffered an injury while residing in California, but because ―the injury to the plaintiff‘s reputation in the estimation of the California public ‖ necessarily ―connected the defendants‘ conduct to California , not just Id. Id. at 1125. Id. at 1121–22 (citation omitted). Id. at 1122 (citation omitted). Id. at 1123 (citation omitted). at 1122. at 1123. (second alteration in original) (citation omitted). to a plaintiff who lived there.‖ [49] ―The strength of that connection was largely a function of the nature of the libel tort,‖ which requires ―publication to third persons.‖ [50] ―That connection, combined with the various facts that gave the article a California focus,‖ such as the plaintiff‘s work as a California television entertainer and the defendants‘ reliance on California sources in writing the story, permitted jurisdiction. [51] Thus, at least according to the Supreme Court in , ― Calder made clear that mere injury to a forum resident is not a sufficient connection to the forum.‖ [52] After clarifying ‘s holding, the Court looked to the facts of the case before it, stating that ―no part of [Mr. Walden‘s] course of conduct occurred in Nevada.‖ [53] Mr. Walden ―never traveled to, conducted activities within, contacted anyone in, or sent anything or anyone to Nevada.‖ [54] Thus, Mr. Walden ―formed no jurisdictionally relevant contacts with Nevada‖ because none of the ― defendant ‘s actions connect him to the forum .‖ [55] The Court then directed its attention to the Ninth Circuit‘s use of the ―effects‖ test—the same broad test we adopted in Pohl . In so doing, the Court gave guidance on how the second and third prong of the test should be employed. First, as to ―express aiming,‖ the Court rejected the Ninth Circuit‘s finding of minimum contacts based on Mr. Walden‘s ―direct[ion] [of] his conduct at plaintiffs whom he knew had Nevada connections.‖ [56] According to the Court, the Ninth Circuit‘s approach ―improperly attributes a plaintiff‘s forum connections to the defendant and makes those connections ‗decisive‘ in the jurisdictional analysis.‖ Thus, the Court clarified 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. Id. at 1124 (first emphasis added). Id. Id. Id. at 1125. Id. at 1124. at 1125. Then, as to the ―brunt of the injury‖ prong, the Court
rejected the plaintiffs‘ argument that jurisdiction was proper because they ―suffered the ‗injury‘ caused by [Mr. Walden‘s] allegedly tortious conduct . . . while they were residing in the forum.‖ [58] It explained that ―an injury is jurisdictionally relevant only insofar as it shows that the defendant has formed a contact with the forum State.‖ [59] And in that case, the plaintiffs‘ injury was ―not the sort of effect that is tethered to Nevada in any meaningful way,‖ as the injury was felt in Nevada ―not because anything independently occurred there, but because Nevada is where respondents chose to be‖ when the injury occurred. [60] Thus, ―[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.‖ [61] Walden ‘s interpretation of Calder and discussion of the
appropriate minimum contacts analysis has significantly narrowed
the broadly formulated ―effects‖ test we adopted in
Pohl
. As
discussed, our decision in
Pohl
adopted a broad interpretation of the
―effects‖ test that permitted jurisdiction solely on the basis of a
defendant‘s connections with a plaintiff who resided in the forum
state. Although it may still be true that jurisdiction can be premised
on the defendant‘s ―‗purposeful direction‘ of a foreign act having
effect in the forum state,‖
Walden
has clarified that the ―effect in the
forum state‖ must be more than an effect on a plaintiff in the forum
state. Other courts faced with this question have come to the same
conclusion. Thus, although
Walden
did not overrule
Calder
, it
Id. See Pohl
,
(Continued) 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, as was the case with the defamatory story in Calder . Under 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.‖ Thus, to the extent that Pohl adopted an interpretation of
Calder that permitted a plaintiff to be ―the only link between the defendant and the forum,‖ its interpretation is inconsistent with Walden . Instead, we must look to whether the defendant has minimum contacts with Utah, not just with a plaintiff residing in Utah. We turn now to the application of these principles to the facts of this case.
B. Under Walden ’s Clarified Interpretation of , Revolabs Lacks Sufficient Minimum Contacts with Utah to Subject It to
Specific Personal Jurisdiction Having discussed how Pohl ‘s broad formulation of the
―effects‖ test has been narrowed by the Supreme Court‘s decision in
Walden
, we turn now to a discussion of whether, under
Walden
,
Revolabs should be subject to personal jurisdiction in Utah. We
conclude that because Revolabs‘s only alleged contact with Utah is
the effects its alleged tortious conduct had on ClearOne, and because
the alleged tort does not otherwise create meaningful contacts with
Utah, Revolabs is not subject to personal jurisdiction in Utah.
Ordnance Sys., LLC v. Real Action Paintball, Inc.
, 751 F.3d 796, 802
(―[A]fter
Walden
there can be no doubt that ‗the plaintiff cannot be
the only link between the defendant and the forum.‘ . . . Any
decision that implies otherwise can no longer be considered
authoritative.‖ (citation omitted)).
See Maxitrate
,
780 F.3d 1206, 1214–15 (9th Cir. 2015) (holding that there was no
jurisdiction because the tort connected the defendant only to the
plaintiff, not the forum).
,
third party, standing alone, is an insufficient basis for jurisdiction.‖).
¶ 25 As stated, in order for a court to exercise personal jurisdiction over a defendant, the defendant must have ―minimum contacts with [the state] such that the maintenance of the suit does not offend ‗traditional notions of fair play and substantial justice.‘‖ [68] In the context of an intentional tort, we apply the ―effects‖ test, which looks to whether ―the defendant is alleged to have (1) committed an intentional act; (2) expressly aimed at the forum state; (3) causing harm, the brunt of which is suffered—and which the defendant knows is likely to be suffered—in the forum state.‖ [69] When applying the ―effects‖ test, however, we must keep in mind the two guiding principles of Walden : whether ―the relationship [between the defendant, the litigation, and the forum] . . . arise[s] out of contacts that the ‗defendant himself ‘‘ creates,‖ and whether those contacts are ―with the forum State itself, not . . . with persons who reside there.‖ [70] The Court in Walden repeatedly cautioned that ―the plaintiff cannot be the only link between the defendant and the forum,‖ [71] ―a plaintiff‘s contacts with the defendant and forum [cannot] drive the jurisdictional analysis,‖ and ―[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.‖ Further, the Court ―reiterate[d] that the ‗minimum contacts‘ inquiry principally protects the liberty of the nonresident defendant, not the interests of the plaintiff.‖ Applying these principles to the case at hand, we conclude that Revolabs has not created any jurisdictionally relevant contacts with Utah and cannot be subject to personal jurisdiction here. The relevant facts are these: ClearOne is a Utah corporation
with its principal place of business in Utah. ClearOne and
Mr. Mackie entered into an employment contract for a technical sales
position that was governed by Utah law, though ClearOne has not
Int’l Shoe
,
expressly aimed its actions at Utah such that it created sufficient minimum contacts with the state. ClearOne has not alleged that Revolabs was attempting to ―enter[] a contractual relationship that ‗envisioned continuing and wide-reaching contacts‘‖ in Utah, nor that it was ―‗deliberately exploi[ting]‘ a market‖ in Utah. ClearOne has also not alleged that Revolabs physically entered Utah ―in person or through an agent, goods, mail, or some other means.‖ To be sure, ClearOne has alleged that Revolabs intentionally injured ClearOne with full knowledge that ClearOne was a Utah corporation. But the Supreme Court has expressly rejected knowledge of a plaintiff‘s forum connections as a sufficient jurisdictional basis. To permit jurisdiction because of these at 1122 (citations omitted). at 1124–25 (―Rather than assessing petitioner‘s own contacts with Nevada, the Court of Appeals looked to petitioner‘s knowledge of respondents‘ ‗strong forum connections.‘ In the court‘s view, that knowledge, combined with its conclusion that respondents suffered foreseeable harm in Nevada, satisfied the ‗minimum contacts‘ inquiry. This approach to the ‗minimum contacts‘ analysis impermissibly allows a plaintiff‘s contacts with the defendant and
(Continued) allegations would return to the broad interpretation of the ―effects‖ test that was rejected in . [78] As to the ―brunt of the injury‖ prong, the alleged injury
resulting from Revolabs‘s alleged conduct ―is jurisdictionally relevant only insofar as it shows that the defendant has formed a contact with the forum State.‖ [79] Otherwise, ―mere injury to a forum resident is not a sufficient connection to the forum.‖ In , the injury was jurisdictionally relevant because the publication of the allegedly libelous article necessarily connected the defendants to California. As the Wyoming Supreme Court described, ―the alleged wrongdoing, libel, was itself tied to the location into which the words were ‗sent.‘‖ The question here is whether there is something ―about the nature of the alleged [misconduct] . . . [that] inextricably links the misconduct to the location where the [injury was felt].‖ ClearOne argues that ―the epicenter of the claims and injury
in this case is Utah.‖ But its description of how Revolabs‘s alleged misconduct is linked to Utah is instructive as to why jurisdiction is improper:
Utah is the focal point not just because ClearOne is headquartered in Utah, but also because the employment contract that [Mr.] Mackie entered into with ClearOne was and is governed by Utah law, forum to drive the jurisdictional analysis.‖ (citation omitted) (footnote omitted)). at 1122 (―We have consistently rejected attempts to satisfy
the defendant-focused ‗minimum contacts‘ inquiry by demonstrating contacts between the plaintiff (or third parties) and the forum State.‖). Id. at 1125. at 1124 (―[T]he ‗effects‘ caused by the defendants‘ article—
i.e. , the injury to the plaintiff‘s reputation in the estimation of the California public—connected the defendants‘ conduct to California , not just to a plaintiff who lived there.‖). State ex rel. State Treasurer of Wyo. v. Moody’s Inv’rs Serv., Inc. ,
required performance by ClearOne and [Mr.] Mackie (at least in part) in Utah. Moreover, [Mr.] Mackie‘s fiduciary obligations were created and governed by Utah law, were owed to a Utah company, and were to be fulfilled, in part, in Utah. Finally, ClearOne‘s predatory hiring claim is also subject to Utah law.
The only reason Revolabs‘s alleged misconduct is linked to Utah is because ClearOne unilaterally chose to execute a contract governed by Utah law, chose to incorporate in Utah, and chose to assert Utah causes of action. Although we accept as true ClearOne‘s allegation that the employment contract between ClearOne and Mr. Mackie was subject to Utah law, it seems clear that Mr. Mackie‘s actual work was not based in Utah, as the only description of the work Mr. Mackie performed relates to Texas, where he resided at all relevant times. Thus, although ClearOne has alleged that Revolabs tortiously interfered with an employment contract and fiduciary duties governed by Utah law, there are no allegations to support the conclusion that the employment relationship or Revolabs‘s alleged subversion of that relationship were inextricably linked to Utah in any other way besides ClearOne‘s presence here. Indeed, the fact that the contract was made under Utah law
is unavailing as the Supreme Court has held that ―an individual‘s
contract with an out-of-state party
alone
can[not] automatically
establish sufficient minimum contacts in the other party‘s home
forum.‖ By the same token, interference with a contract based in
another state is likewise insufficient without any other contact
linking the defendant to the forum state. And the only other relevant
contacts ClearOne suggests that Revolabs has all turn on the Utah
contacts of ClearOne and Mr. Mackie. This type of connection is
insufficient under
Walden
. Revolabs must have contacts ―with the
forum State itself, not . . . with persons who reside there.‖ ,
Weston , a recent, post- Walden case dealing with a similar claim of tortious interference. [87] In that case, Mr. Picot attempted to sue Mr. Weston in California and accused Mr. Weston of ―making statements to [Mr.] Coats (an Ohio resident) that caused HMR (a Delaware corporation with offices in Ohio) to cease making payments into two trusts (in Wyoming and Australia).‖ [88] ―[Mr.] Weston did all this from his residence in Michigan, without entering California, contacting any person in California, or otherwise reaching out to California.‖ [89] The Ninth Circuit, quoting , stated that ―[i]n short, ‗none of [Mr.] [Weston‘s] challenged conduct had anything to do with [California] itself‖ and found jurisdiction improper. [90] As discussed, the same analysis and result is present here. Ultimately, Revolabs‘s conduct had little to do with Utah,
even though it had a lot to do with ClearOne. There is nothing other
than ClearOne‘s contract and the fact that ClearOne happens to be
incorporated here that links Revolabs to Utah. And ClearOne‘s
unilateral activity—choosing to incorporate in Utah and maintain its
principal place of business in Utah—is an insufficient basis for
jurisdiction. As ClearOne‘s counsel acknowledged during oral
argument, to hold otherwise would subject Revolabs to jurisdiction
wherever ClearOne chose to incorporate. Such a result would
―impermissibly allow[] [ClearOne‘s] contacts with the defendant and
forum to drive the jurisdictional analysis.‖ As
Walden
made clear,
―the plaintiff cannot be the only link between the defendant and the
forum.‖ Accordingly, because Revolabs does not have sufficient
minimum contacts with Utah, we affirm the trial court‘s decision on
this point.
II. ClearOne Has Not Provided Sufficient Evidence that Revolabs Could Be Subject to General Personal Jurisdiction to Warrant
Jurisdictional Discovery ClearOne‘s second argument is that, even if Revolabs is not
subject to specific personal jurisdiction, ClearOne should have the opportunity to conduct discovery in order to determine whether Revolabs should be subject to general personal jurisdiction. Unlike specific personal jurisdiction, ―[g]eneral personal jurisdiction permits a court to exercise power over a defendant without regard to the subject of the claim asserted,‖ and is thus also known as ―all- purpose‖ personal jurisdiction. Because ClearOne has failed to ―present facts to the court which show why jurisdiction would be found if discovery were permitted‖ under the standard the Supreme Court has set forth, we affirm the trial court‘s denial of ClearOne‘s request for discovery. We first address the standard for reviewing a denial of jurisdictional discovery, then discuss the standard for determining general jurisdiction, and end by explaining how the discovery sought by ClearOne would not provide a sufficient basis for general jurisdiction. A court ―may determine jurisdiction on affidavits alone,
permit discovery, or hold an evidentiary hearing.‖ But the party
seeking discovery has ―the obligation to present facts to the court
which show why jurisdiction would be found if discovery were
permitted.‖ Further, the denial of a request to conduct discovery is
reviewed for abuse of discretion, and ―[a]n appellate court will not
interfere with the trial court‘s refusal to grant discovery except upon
the clearest showing that the dismissal resulted in actual and
substantial prejudice to the litigant.‖ Denying jurisdictional
discovery ―is not an abuse of discretion when it is clear that further
Pohl, Inc. of Am. v. Webelhuth
, 2008 UT 89, ¶ 9, 201 P.3d 944
(citation omitted).
United States v. Swiss Am. Bank, Ltd.
,
2001). Anderson v. Am. Soc’y of Plastic & Reconstructive Surgeons , 807
P.2d 825, 827 (Utah 1990).
Swiss Am. Bank
,
n.24 (9th Cir. 1977).
discovery would not demonstrate facts sufficient to constitute a basis for jurisdiction.‖ [99] The question, then, is whether the facts that ClearOne might
discover if its request was granted would provide a sufficient basis for general jurisdiction. The United States Supreme Court recently clarified in Daimler AG v. Bauman the level of contact with a state a party must have in order to permit the state to exercise general or ―all-purpose‖ jurisdiction over the party. [100] In Daimler , Argentinian residents filed a complaint in a California federal district court attempting to sue DaimlerChrysler Aktiengesellschaft (Daimler), a German public stock company that manufactures Mercedes-Benz vehicles in Germany. The plaintiffs argued that ―the California contacts of Mercedes-Benz USA, LLC (MBUSA), a subsidiary of Daimler incorporated in Delaware with its principal place of business in New Jersey,‖ could be attributed to Daimler and thereby permit general jurisdiction to be exercised over Daimler in California. MBUSA‘s California contacts consisted of ―multiple California-based facilities,‖ including a regional office, and a high volume of sales of Daimler vehicles. The Supreme Court, ―assum[ing] MBUSA‘s contacts [were]
imputable to Daimler,‖ held that there was ―no basis to subject
Daimler to general jurisdiction in California, for Daimler‘s slim
contacts with the State hardly render it at home there.‖ This was a
reaffirmation that general jurisdiction is appropriate only when a
Id.
to the California market,‖ and its California sales accounted for ―over 10% of all sales of new [Daimler] vehicles in the United States‖ and ―2.4% of Daimler‘s worldwide sales.‖ Id. at 760. The Supreme Court assumed but did not decide whether MBUSA‘s contacts with California were sufficient to establish general personal jurisdiction over MBUSA. at 758. ―corporation‘s ‗affiliations with the State are so ―continuous and systematic‖ as to render [it] essentially at home in the forum State.‘‖ [105] In so holding, the Court expressly rejected the ―doing business‖ test, which purported to subject a corporation to general jurisdiction ―in every State in which a corporation ‗engages in a substantial, continuous, and systematic course of business.‘‖ [106] Instead, the Court clarified that a defendant‘s contacts with the state must be so extensive as to be ―comparable to a domestic enterprise in that State,‖ with the paradigmatic examples being a corporation‘s ―place of incorporation and principal place of business.‖ Although the Court did ―not foreclose the possibility that in an exceptional case‖ a company could be considered ―at home‖ elsewhere, it cautioned that ―[a] corporation that operates in many places can scarcely be deemed at home in all of them.‖ Thus, despite the significant number of facilities located in California and amount of Id. at 761 (alteration in original) (citation omitted). Id. at 760–61 (citation omitted). The Court called this formulation of the general jurisdiction test ―unacceptably grasping.‖ Id. at 761. at 758 n.11. at 760. at 761 n.19. The case cited by the Supreme Court as an
―exceptional case,‖
Perkins
, is instructive, as it is both ―exceptional‖
and the only case decided by the Supreme Court permitting general
jurisdiction.
See id.
at 756 & n.8 (discussing
Perkins v. Benguet Consol.
Mining Co.
, 342 U.S. 437 (1952)). In
Perkins
, the defendant company
was incorporated and had its principal place of business in the
Philippines until it was forced to suspend its operations during
World War II.
Perkins
,
business transacted in California, such activity was insufficient to consider Daimler ―at home‖ in California. When ClearOne‘s request for discovery is viewed in the
light of the high standard for general personal jurisdiction set by the United States Supreme Court, it is clear that further discovery could not lead to ―facts sufficient to constitute a basis for jurisdiction.‖ Indeed, the Supreme Court stated that ―it is hard to see why much in the way of discovery would be needed to determine where a corporation is at home.‖ This is true because, as ClearOne concedes, the question of general personal jurisdiction turns on whether the in-state activities of a company—Revolabs in this case— ―closely approximate the activities that ordinarily characterize a corporation‘s place of incorporation or principal place of business.‖ The facts and allegations provided by ClearOne fall far short of this level of activity. The facts alleged by ClearOne in support of its claim of
jurisdiction are that Revolabs has a publicly accessible website, that Revolabs is included in an online directory of Utah businesses maintained by the Utah Department of Workforce Services—though the site states that Revolabs currently has no employees in Utah— and that Utah Valley University issued a bid solicitation for audio- visual equipment, including equipment sold by Revolabs. ClearOne has not, however, contradicted Revolabs‘s affidavit statement that ―Revolabs does not maintain or conduct any business operations in the state of Utah and does not direct any advertising into Utah; it has no offices in Utah, owns no property in Utah[,] and maintains no employees in Utah.‖ ClearOne‘s only response is that discovery may reveal that Revolabs gains revenue from Utah, that Revolabs may be party to Utah contracts, or that Revolabs may have conducted business prior to litigation—facts that ClearOne argues are suggested by Revolabs‘s website, the online directory, and the bid solicitation. ; see also id. at 760 (setting place of incorporation and
principal place of business as paradigm bases for general jurisdiction because ―[t]hose affiliations have the virtue of being unique . . . as well as easily ascertainable‖). Carmouche v. Tamborlee Mgmt., Inc. , 789 F.3d 1201, 1205 (11th
Cir. 2015). The problem with ClearOne‘s argument is that it claims
general jurisdiction could be predicated on Revolabs‘s potentially
―substantial and continuous business activity in Utah.‖ This ―doing
business‖ approach to general jurisdiction, however, was expressly
considered and flatly rejected by the Supreme Court as part of its
holding in
Daimler
. Indeed, activity exponentially more extensive
than what ClearOne suggests Revolabs may be engaged in was
considered ―slim‖ in
Daimler
, and ―plainly [did] not approach‖ the
level of association necessary for general
jurisdiction. ―A
corporation‘s ‗continuous activity of some sort[] within a state . . . is
not enough to support the demand that the corporation be amenable
to suits unrelated to that activity.‘‖ The limited number of
Supreme Court cases on this point clearly require something more
than just some revenue or contracts to qualify the company as ―at
home‖ in that state.
See Daimler
,
beyond the exemplar bases [of place of incorporation and principal
place of business] and approve the exercise of general jurisdiction in
every State in which a corporation ‗engages in a substantial,
continuous, and systematic course of business.‘ That formulation, we
hold, is unacceptably grasping.‖ (citation omitted)).
at 760, 761 n.19.
Goodyear Dunlop Tires Operations, S.A. v. Brown
,
2856 (2011) (citation omitted). Compare Daimler , 134 S. Ct. at 756 n.8 (general jurisdiction
present in
Perkins
because ―Ohio was the center of the corporation‘s
wartime activities‖),
with id.
at 752 (no general jurisdiction when
company had ―multiple California-based facilities, including a
regional office,‖ and had a significant volume of sales in California),
Goodyear
,
(Continued) The Supreme Court was clear that bases for general jurisdiction aside from the corporation‘s place of incorporation and principal place of business should be found only in exceptional cases, and this does not appear to be one. Indeed, as a matter of common sense, there are likely many companies that have no official operations in Utah that still derive some revenue from Utah consumers. It would strain the Supreme Court‘s standard for general jurisdiction beyond recognition to suggest that a company like Revolabs that has no business operations in a state can fairly be said to be ―at home‖ there because of some potential revenue or contracts. Accordingly, because ClearOne has failed to show that discovery would lead to facts proving that Revolabs is ―at home‖ in Utah, we hold that the trial court did not abuse its discretion in denying ClearOne‘s discovery request.
Conclusion The Supreme Court‘s recent cases provide clear guidance as
to the issues that we address today. Walden has clarified ‘s ―effects‖ test and, under , ClearOne has failed to allege that Revolabs has sufficient minimum contacts to subject it to specific personal jurisdiction in Utah. Revolabs‘s connection to ClearOne and Mr. Mackie is simply insufficient, on its own, to confer jurisdiction. As to general personal jurisdiction, the Supreme Court in Daimler clearly rejected the ―doing business‖ test that was the basis for ClearOne‘s claim. As it is clear that no further discovery could lead to facts supporting general jurisdiction, the trial court did not abuse its discretion in denying ClearOne‘s motion. Accordingly, we affirm the trial court‘s decision as to both issues.
Houston bank; purchasing helicopters, equipment, and training services . . . ; and sending personnel to [Texas] for training‖).