Opinion
No. C-01-3330 MMC
January 8, 2002
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS; VACATING HEARING
Before the Court is defendant Cardiff University and the University of Wales' (collectively, "the Universities") motion to dismiss the above-entitled action for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. Plaintiff Michael Carolan ("Carolan"), proceeding pro se, has filed opposition, to which the Universities have replied. Having considered the papers filed in support of and in opposition to the motion, the Court deems the motion appropriate for decision on those submissions, VACATES the hearing scheduled for January 11, 2001, and rules as follows.
BACKGROUND
Cardiff University, located in Cardiff, Wales, United Kingdom, is a "constituent institution" of the University of Wales. (See Casella Decl. at ¶ 2.) In late 1996, Carolan requested that Cardiff University send him information about its programs, and Cardiff University mailed Carolan a prospectus entitled "LL.M. Taught Course in Legal Aspects of Marine Affairs." (See Amended Complaint ("AC") at 4:12-14.) On or about March 9, 1997, Carolan, providing his "permanent address" in Tacoma, Washington, applied for admission to Cardiff University's LL.M. Legal Aspects of Maritime Affairs program. (See Casella Decl. at 8 and Ex. C.) On or about April 17, 1997, Cardiff University mailed an offer of admission to Carolan in Washington. (See id. at 9 and Ex. D.) On or about May 7, 1997, Carolan accepted Cardiff University's offer, providing a return address in Washington. (See AC at Item 5.) In September 1997, Carolan began his studies at Cardiff University, and listed on his enrollment papers a "permanent home address" in Cardiff. (See Casella Decl. at ¶ 11 and Ex. D.) Carolan did not pass examinations held in June 1998 (see id. at ¶ 13); he thereafter returned to the United States. (See AC at 5:11.) Cardiff University's later contacts with Carolan in 1998 and 1999 were either mailed to a solicitor located in the United Kingdom (see id. at Item 14), or to Carolan's address in Seattle, Washington. (See id. at Item 8.)
In his Amended Complaint, Carolan alleges two claims. In his first claim entitled "Misrepresentation and Breach of Contract," Carolan alleges that the Universities fraudulently induced him to enter into a contract by making misrepresentations about the educational programs and that they thereafter breached the contract with him by failing to adhere to certain promises set forth in the program prospectus. (See Id. at 6:22-9:20.) In his second claim, entitled "Breach of Good Faith Performance of a Special Relationship Quasi-fiduciary or Insurance Type Contract," Carolan alleges that after he failed the initial examinations, the Universities did not make reasonable efforts to assist him with sitting for a re-examination and did not comply with internal appeal procedures in a timely manner. (See id. at 9:21-10:24.)
LEGAL STANDARD
A plaintiff bears the burden of establishing that a district court has personal jurisdiction over nonresident defendants. See FDIC v. British-American Ins. Co., 828 F.2d 1439, 1441 (9th Cir. 1987). Where a defendant supports its motion to dismiss with evidence contradicting allegations in the plaintiff's complaint, the plaintiffs allegations are not assumed to be true. See Data Disc Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1284 (9th Cir. 1977). Rather, the plaintiff, to defeat the motion, must make "a prima facie showing of jurisdictional facts through submitted materials." See id. at 1285. If the plaintiff makes the requisite prima facie showing, the plaintiff retains the burden of proving personal jurisdiction by a preponderance of the evidence at a later stage of the proceedings, either at an evidentiary hearing or at trial. See id.
Such materials include affidavits and exhibits. Id.
DISCUSSION
"Due process requires that nonresident defendants have certain minimum contacts with the forum so that maintenance of a suit does not offend traditional notions of fair play and substantial justice." FDIC, 828 F.2d at 1441-42. "If the nonresident defendant's activities within a state are `substantial' or `continuous and systematic,' there is a sufficient relationship between the defendant and the state to support jurisdiction even if the cause of action is unrelated to the defendant's forum activities." Data Disc, 557 F.2d at 1287 (quoting Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 446-47 (1952)). "If, however, the defendant's activities are not so pervasive as to subject him to general jurisdiction, the issue whether jurisdiction will lie turns on an evaluation of the nature and quality of the defendant's contacts in relation to the cause of action." Id.
A. General Jurisdiction
"General jurisdiction exists when the nonresident has substantial or continuous and systematic contacts with the forum state." FDIC, 828 F.2d at 1442 (internal quotations and citation omitted). "The standard for establishing general jurisdiction is fairly high, and requires that the defendant's contacts be of the sort that approximate physical presence." Bancroft Masters, Inc. v. Augusta National, Inc., 223 F.3d 1082, 1086 (9th Cir. 2000) (internal quotes and citation omitted).
Here, in support of their motion to dismiss, the Universities rely on the declarations of Louise Casella ("Casella"), Senior Executive and Head of the Vice Chancellor's Office for Cardiff University, and Dr. Lynn Eden Williams ("Williams"), Secretary General of the University of Wales. Casella and Williams declare that Cardiff University and the University of Wales, respectively, do not own property in California, are not registered to do business in California, and have no offices, employees, bank accounts, or telephone in California. (See Casella Decl. at ¶ 3; Williams Decl. at ¶ 3.) Williams declares that the University of Wales engages in no advertising or marketing directed at California. (See Williams Decl. at ¶ 5.) Casella declares that Cardiff University provides brochures and advertising materials to the University of California in connection with a student exchange agreement which Cardiff University and the University of California entered into in December 2000, but otherwise has engaged in no advertising or marketing directed at California. (See Casella Decl. at ¶ 5.) Finally, both Williams and Casella declare that each of their respective entities operate a non-interactive informational website. (See Williams Decl. at ¶ 4; Casella Decl. at ¶ 4.)
Carolan argues that the evidence offered by the Universities as to their websites and student exchange agreement suffices to establish a basis for the exercise of general jurisdiction. The Court disagrees. First, operation of a non-interactive website will not support the exercise of general jurisdiction. See Callaway Golf Corp. v. Royal Canadian Golf Ass'n, 125 F. Supp.2d 1194, 1203 (C.D. Cal. 2000) ("A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise of personal jurisdiction.") Second, in determining whether to exercise jurisdiction, "courts must examine the defendant's contacts with the forum at the time of the events underlying the dispute." See Steel v. United States, 813 F.2d 1545, 1549 (9th Cir. 1987). Because Cardiff University entered into the student exchange agreement on December 8, 2000, (see Casella Decl. at ¶ 5), and the last date on which any allegedly wrongful conduct occurred was no later than April 13, 2000, (see AC at 9:22-10:4 and Item 13 (second page)), the student exchange agreement is not a relevant contact for purposes of determining whether the exercise of personal jurisdiction over the Universities is appropriate. Moreover, even if the timing of the exchange agreement were otherwise, such agreement would not suffice to establish general jurisdiction. See Park v. Oxford Univ., 35 F. Supp.2d 1165, 1167-68 (ND. Cal. 1997) (holding "long standing academic interaction between Oxford and California," Oxford's purchase of academic materials from California companies, and Oxford's solicitation of money from California residents "fail far short of establishing general jurisdiction"); aff'd, 165 F.3d 917 (9th Cir. 1998).
Finally, Carolon contends that the Universities "distribute materials at universities that advertise their programs" and "provide updated information to reference publications that circulate worldwide." (See Pl's Opp. at 6:13-16.) Although Carolan offers no evidenee to support these assertions, if such evidence had been offered, the resulting showing would be insufficient to establish general jurisdiction. See Shute v. Carnival Cruise Lines, Inc., 897 F.2d 377, 381 (9th Cir. 1990) (holding defendant cruise ship's advertisements in forum, mailing of brochures to travel agents in forum, and conducting of promotional seminars in forum were insufficient to support exercise of general jurisdiction), rev'd on other grounds, 499 U.S. 585 (1991); Park, 35 F. Supp.2d at 1167-68.
Accordingly, Carolan fails to establish a basis for the Court to exercise general jurisdiction over the Universities.
B. Specific Jurisdiction
"Even without general jurisdiction over the defendant, the court in [the forum state] would have jurisdiction specific to the case at bar, if the controversy were sufficiently related to or arose out of [the defendant's] contacts with the forum state." Omeluk v. Langsten Slip Batbyggeri A/S, 52 F.3d 267, 270 (9th Cir. 1995). A three-part test is used "to determine whether such limited jurisdiction exists:
(1) The nonresident defendant must do some act or consummate some transaction with the forum 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 results from the defendant's forum-related activities. (3) Exercise of jurisdiction must be reasonable.
See Data Disc, 557 F.2d at 1287. In order to establish specific jurisdiction, the plaintiff must satisfy all three elements. See Omeluk, 52 F.3d at 270. With respect to the element of purposeful availment, different tests apply to contract and torts claims. See Ziegler v. Indian River County, 64 F.3d 470, 473 (9th Cir. 1995). Consequently, the Court will consider Carolan's contract and torts claims separately. See, Data Disc, 557 F.2d at 1287-88 (analyzing contract and tort claims separately).
1. Breach of Contract Claims
With respect to breach of contract claims, to determine whether "the defendant purposefully avail[ed] itself of the privilege of conducting activities within the forum State," a district court must evaluate "prior negotiations and contemplated future consequences, along with the terms of the contract and the parties' actual course of dealing." See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 479 (1985) (holding nonresident defendant subject to specific jurisdiction in Florida where he negotiated with Florida corporation for franchise relationship "that envisioned continuing and wide-reaching contacts with [the plaintiff] in Florida").
Here, Carolan argues that in May 1997, when he entered into the subject contract with the Universities, he was a California resident. (See Pl's Opp. at 11:12-13; see also AC at 4:21-23 (alleging contract formed on May 7, 1997)). Carolan then concludes that because the Universities had continuing obligations to a California resident, including the possibility of allowing him to sit for a re-examination in California, the purposeful availment element is satisfied. Carolan, however, offers no evidence that he was a California resident at the time he entered into any contractual relationship with the Universities, nor does he offer any evidence that he was a California resident during any period of negotiations or at the time of the alleged breach.
Even if such evidence had been offered, the fact that a nonresident enters into a contract with a resident of another forum does not "automatically" establish purposeful availment of the privilege of conducting activities in that forum. See Burger King, 471 U.S. at 478. Carolan offers no evidence that the Universities were aware that he was a California resident during the relevant time period. Cf. id. at 480 (holding defendant "most certainly knew that he was affiliating himself with an enterprise based primarily in Florida"). Rather, the evidence offered by both parties establishes that in every contact Carolan had with the Universities during the admissions process, Carolan provided the Universities with a State of Washington address. (See Casella Decl. at ¶ 10 and Exs. B, C.; AC, Item 5.) After Carolan enrolled, he provided the Universities with a "permanent home address" in Cardiff. (See Casella Decl. Ex. D.) Moreover, after Carolan returned to the United States after failing the initial examination, further contacts between Carolan and the Universities with respect to re-examinations were sent to Carolan's Washington address. (See AC, Item 8.)
In short, there is no evidence that the Universities knew they were negotiating a contract with a California resident, had entered into a contract with a California resident, or had any reason to foresee that some portion of that contract would involve the Universities' having any contacts with California. Consequently, with respect to the contract claims, Carolan has failed to establish that the Universities purposefully availed themselves of the privilege of conducting activities in California. In the absence of such a showing, the exercise of specific jurisdiction over the Universities would deprive them of due process. See Burger King, 471 U.S. at 474-75 ("[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.") Accordingly, Carolan has failed to establish a basis for the Court's exercise of specific jurisdiction over the Universities with respect to his contract claims.
2. Misrepresentation/Fraud Claims
In the Ninth Circuit, "the three elements of purposeful availment in tort cases are: (1) intentional action; (2) aimed at the forum state; and (3) causing harm that the defendant should have anticipated would be suffered in the forum state." See Ziegler, 64 F.3d at 474.
Carolan alleges that the Universities made fraudulent representations about the nature of its programs in a prospectus entitled "LL.M. Taught Course in Legal Aspects of Marine Affairs," and that such misrepresentations were made to induce him to enter into a contract with the Universities. (See AC at 8:1-18.) Carolan further alleges that Professor E. D. Brown of Cardiff University fraudulently represented to Carolan that the program Carolan was considering was suitable for a person from a non-legal background, and that such statement was made to induce Carolan to enroll. (See id. at 8:18-20; Pl's. Opp. at 9:12-16). According to Carolan, Professor Brown made that representation to Carolan while Carolan was visiting Cardiff in November 1996. (See AC at 4:15-18.)
As discussed above, there is no evidence the Universities were aware, at the time of the alleged misrepresentations or Carolan's acts in reliance thereon, that Carolan was a California resident. Rather, at all relevant times, Carolan represented to the Universities that his mailing address was in the State of Washington. Consequently, Carolan has not established that any misrepresentation made by the Universities was aimed at California or caused harm that the Universities should have anticipated would be suffered in California. Consequently, Carolan has failed to establish the requisite element of purposeful availment. See Burger King, 471 U.S. at 474-75.
Accordingly, Carolan has not established a basis for the Court's exercise of specific jurisdiction over the Universities with respect to his tort claims.
CONCLUSION
For the reasons expressed above, the Universities' motion to dismiss is hereby
GRANTED.
The Clerk shall close the file, and terminate all pending motions.
IT IS SO ORDERED.