Opinion
22-35107
11-16-2022
BOBBY J. BROWN, Plaintiff-Appellant, v. SERVICE GROUP OF AMERICA, INC., a foreign corporation, Defendant-Appellee.
NOT FOR PUBLICATION
Submitted November 9, 2022 Portland, Oregon
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court No. 3:20-cv-02205-IM for the District of Oregon Karin J. Immergut, District Judge, Presiding
Before: BUMATAY and SANCHEZ, Circuit Judges, and BAKER, International Trade Judge.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
MEMORANDUM
Bobby Brown timely appeals the district court's Federal Rule of Civil Procedure 12(b)(2) dismissal of his suit against Services Group of America, Inc. (SGA), the corporate parent of his employer Food Services of America, Inc. (FSA), for lack of personal jurisdiction. "The district court's determination whether personal jurisdiction can be exercised is a question of law, reviewable de novo when the underlying facts are undisputed. The plaintiff bears the burden of establishing that the court has personal jurisdiction." FDIC v. British-Am. Ins. Co., 828 F.2d 1439, 1441 (9th Cir. 1987) (cleaned up).
Because Brown relies solely on written materials in his attempt to establish personal jurisdiction over SGA, he need make only "a prima facie showing of jurisdictional facts." Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). In determining whether he made such a showing, we may consider affidavits and discovery materials. Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977). We resolve conflicts between the facts in the parties' affidavits in the plaintiff's favor. AT&T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996).
Brown did not argue below that SGA's contacts with Oregon were so "'continuous and systematic' as to render [SGA] essentially at home in [Oregon]." LNS Enters. LLC v. Cont'l Motors, Inc., 22 F.4th 852, 859 (9th Cir. 2022) (quoting Daimler AG v. Bauman, 571 U.S. 117, 127 (2014)). Nor does Brown argue on appeal that FSA's contacts with Oregon can be imputed to SGA as an alter ego, an argument on which he lost below. We therefore inquire only into whether SGA's "independent personal contacts" and conduct make asserting personal jurisdiction proper. See, e.g., Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d 1066, 1076 n.16 (9th Cir. 2006).
We apply a three-prong test in analyzing a claim of specific jurisdiction:
(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;
(2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and
(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.Schwarzenegger, 374 F.3d at 802 (quoting Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987)). The plaintiff has the burden of establishing both of the first two prongs to make a prima facie showing of specific jurisdiction. Id. If he succeeds, the burden shifts to the defendant to "present a compelling case that the presence of some other considerations would render jurisdiction unreasonable." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985).
We begin and end with Schwarzenegger's second prong, which disposes of this case. Brown's claims "must 'arise out of or relate to [SGA's] contacts with the forum.'" Ayla, LLC v. Skin Pty. Ltd., 11 F.4th 972, 983 (9th Cir. 2021) (quoting Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S.Ct. 1017, 1026 (2021)). Although Brown need not establish but-for causation, id., he must show sufficient "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. Super. Ct., 137 S.Ct. 1773, 1780 (2017) (alteration in original) (quoting Goodyear Dunlop Tires Ops., S.A. v. Brown, 564 U.S. 915, 919 (2011)); accord Ford Motor Co., 141 S.Ct. at 1025. That affiliation must go beyond owning a subsidiary with activities in the forum and conducting basic corporate supervision of it. See LNS Enters., 22 F.4th at 861-62, 864.
Brown's allegations and supporting evidentiary materials fail to demonstrate that his injury arose from or related to SGA's independent personal contacts with or conduct directed towards Oregon. Brown did not explain how SGA's guiding principles or corporate control influenced FSA's glove policy in any way besides vaguely alleging that SGA was "involved in [FSA's] policies and procedures." Instead, the uncontroverted evidence in the record establishes that (1) SGA had no mechanism by which it imposed its guiding principles on FSA, (2) SGA had no substantial role in the management of FSA's warehouse facilities, and (3) FSA's management selected personal protective equipment without interference from SGA. And while SGA selected FSA's board of directors, Brown fails to show how the board influenced FSA's safety-equipment policy for employees. By failing to satisfy the second prong of the test, Brown has not made a prima facie showing of personal jurisdiction. We therefore need not, and do not, consider the first and third prongs of the test.
AFFIRMED.
The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation.