Opinion
Case No. 3:17-cv-00234-YY
07-28-2017
MELISSA FIRESIDE, Plaintiff, v. COLLEGE FOR AMERICA, SOUTHERN NEW HAMPSHIRE UNIVERSITY, a New Hampshire non-profit educational institution, Defendant.
FINDINGS AND RECOMMENDATION :
Before the court is defendant Southern New Hampshire University's ("SNHU") motion to dismiss for lack of personal jurisdiction (ECF #6) under FRCP 12(b)(2). The motion should be GRANTED because plaintiff Melissa Fireside ("Fireside") cannot meet her burden of establishing general or specific personal jurisdiction over SNHU in Oregon.
BACKGROUND
On January 2, 2017, Fireside brought claims for refusal to hire, discrimination, retaliation, aiding and abetting pregnancy, and sex discrimination under ORS 659A.030(1)(a)-(b), (f)-(g), and for discrimination and retaliation for bringing a civil proceeding under ORS 659A.230 in Clackamas County Circuit Court. Notice of Removal, ECF #1, Ex. 1 ("Compl."). SNHU timely removed the action to this court invoking diversity jurisdiction. 28 U.S.C. §§ 1332, 1441, 1446; Notice of Removal, ECF #1.
Among other relief, Fireside seeks $1,559,715 in monetary damages, which exceeds the amount-in-controversy requirement in 28 U.S.C. § 1332(b). Compl. at 17-18. The parties are also citizens of different states and, therefore, satisfy the requirement of complete diversity under 28 U.S.C. § 1332(a): Fireside resides in Clackamas County, Oregon while SNHU is a private non-profit university incorporated and headquartered in New Hampshire. Compl. ¶¶ 1-2; Pl. Melissa Fireside's Decl. in Opp. to Def. SNHU's Mot. to Dismiss ¶ 2, 26 ("Fireside Decl."), ECF #20; Decl. of Joseph Sergi in Supp. of Def.'s Mot. to Dismiss ¶ 3 ("Sergi Decl."), ECF #13. SNHU's main campus is in Manchester, New Hampshire, and it has four regional centers in New Hampshire and Maine. Sergi Decl. ¶ 4. Therefore, this court has subject matter jurisdiction to decide this motion.
Fireside alleges that she is a "resident" of Oregon. Compl., ¶ 1; Fireside Decl., ¶ 2. While "[r]esidence and citizenship are not the same thing," Seven Resorts, Inc. v. Cantlen, 57 F.3d 771, 774 (9th Cir. 1995) (citation omitted), nothing in the record indicates that Fireside is domiciled in or a citizen of any other state.
Fireside has a Ph.D. in Industrial Psychology. Fireside Decl. ¶ 8. She began working as a part-time Faculty Reviewer for SNHU's College for America ("CFA") business unit in September 2015 where she evaluates student projects for competency. Fireside Decl. ¶¶ 3, 6, 8. This position is "virtual"—faculty reviewers can perform their work from any location in the United States that has Internet access using a web portal, and they may change their locations at any time. Decl. of James Whitmore in Supp. of Def.'s Mot. to Dismiss ¶ 3 ("Whitmore Decl."), ECF #11.
About three months later on December 17, 2015, CFA's Director of Academic Operations, Julie-ann Edwards ("Edwards"), e-mailed 192 CFA Faculty Reviewers seeking applicants for five virtual, full-time Assessment Team Lead Positions. Decl. of Julie-ann Edwards in Supp. of Def.'s Mot. to Dismiss ¶ 2, 4 ("Edwards Decl."), ECF #7; Suppl. Decl. of Julie-ann Edwards in Supp. of Def.'s Mot. to Dismiss. ¶ 3 ("Suppl. Edwards Decl."), ECF #24; Dec. 17, 2015 Edwards E-mail, ECF #7-1; Compl. ¶ 6; Fireside Decl. ¶ 9. Edwards lives and works in New Hampshire and contacted applicants from her office there. Edwards Decl. ¶ 2. Seventy-six individuals from at least thirty-three different states applied for the positions. Whitmore Decl. ¶ 4. Two of the seventy-six individuals were residents of Oregon. Suppl. Edwards Decl. ¶ 3. Fireside applied for the "Psychology, ethics" position and was selected for a telephone interview, along with five other candidates. Compl. ¶ 7; Fireside Decl. ¶ 10; Edwards Decl. ¶ 8.
During the telephone interview with Edwards, Fireside disclosed that she was pregnant, her expected delivery due date, and how much time she planned to take off for maternity leave. Compl. ¶¶ 8-9; Fireside Decl. ¶¶ 11-12. Edwards informed Fireside that her due date interfered with the position's start date and training period and that there would be other positions available in the future. Compl. ¶¶ 10-11; Fireside Decl. ¶¶ 13-14. Edwards also told Fireside that while SNHU had made exceptions to employment start dates in the past, the hiring committee wanted whomever was hired for the "Psychology, ethics" team lead position to adhere to the planned start date. Compl. ¶¶ 10-11; Fireside Decl. ¶¶ 13-14. Edwards told Fireside that she would tell the hiring committee about Fireside's inability to start the position on time. Compl. ¶ 12. On January 20, 2016, Edwards informed Fireside over the telephone that she was not selected for the position. Id. ¶ 13; Edwards Decl. ¶ 10. Several weeks later, SNHU filled the Team Lead position with a candidate who was not pregnant. Compl. ¶ 14. That candidate lives in Florida. Edwards Decl. ¶ 9.
In April 2016, Fireside applied for a different full-time Faculty position with SNHU. Compl. ¶ 15. Fireside claims this position was in CFA, the same business unit as the position she applied for in December 2015; however, Joseph Sergi, SNHU's Chief Financial Officer, claims the position was posted in a different business unit: the College of Online and Continuing Education ("COCE"). Def.'s Mot. to Dismiss at 4 n.3 ("Mot. to Dismiss"), ECF #6; Sergi Decl. ¶ 7. CFA and COCE function as entirely separate programs—they employ separate faculty and have a different student base. Mot. to Dismiss at 4 n.3; Sergi Decl. ¶ 7; Decl. of Brooke Morin in Supp of Def. Mot. to Dismiss ¶ 3 ("Morin Decl."), ECF #10.
This position was posted on SNHU's website and was open to both internal and external applicants. Morin Decl. ¶ 3. Sixty-seven applicants from twenty-four different states applied; Fireside was the only applicant residing in Oregon. Morin Decl. ¶ 4. Fireside was one of 10 applicants who made it to the final stages of the hiring process. Hill Decl. ¶¶ 5-6. Although she was qualified, she was not interviewed for the position. Compl. ¶ 15. In August 2016, she was informed by mail or by e-mail that she had not been selected for the position. Id. (mail); Morin Decl. ¶ 4 (e-mail). The candidate who secured the position works from Pennsylvania. Decl. of Jennifer Batchelor in Supp. of Def.'s Mot. to Dismiss ¶ 7 ("Batchelor Decl."), ECF #12.
In June 2016, Fireside filed discrimination complaints with U.S. Equal Employment Opportunities Commission, Oregon Bureau of Labor and Industries, and the New Hampshire Commission for Human Rights. Compl. ¶¶ 3, 31.
LEGAL STANDARDS
"In opposition to a defendant's motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing that jurisdiction is proper." Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008); Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). When the motion to dismiss is based on written material rather than an evidentiary hearing, the plaintiff need only establish a prima facie case for her claims to survive. Schwarzenegger, 374 F.3d at 800; Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995). The plaintiff must support her allegations with facts—her uncontroverted allegations must be taken as true and conflicts between facts contained in the parties' declarations and affidavits must be resolved in her favor. E.g., Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1223 (9th Cir. 2011); Schwarzenegger, 374 F.3d at 800-01; Amba Mktg. Sys., Inc. v. Jobar Int'l, Inc., 551 F2d 784, 787 (9th Cir. 1977). However, the court may not assume the truth of contradicted allegations. Picot v. Weston, 780 F.3d 1206, 1206 n.1 (9th Cir. 2015); Mavrix Photo, 647 F.3d at 1223.
Personal jurisdiction is limited by a state's long-arm statute and by federal due process. Picot, 780 F.3d at 1211 (citing Daimler AG v. Bauman, 134 S. Ct. 746, 753 (2014)). "When no federal statute governs personal jurisdiction, the district court applies the law of the forum State." Boschetto, 539 F.3d at 1015 (citing Panavision Int'l L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998)). Because Oregon's long-arm statute is coextensive with the limits of federal due process, the court's "inquiry centers on whether exercising jurisdiction comports with due process." Picot, 780 F.3d at 1211; accord ORCP 4L; Gray & Co. v. Firstenberg Mach. Co., Inc., 913 F.2d 758, 760 (9th Cir. 1990) (holding Oregon's long-arm statute [ORCP 4L] confers jurisdiction to the extent permitted by due process).
Federal due process requires that non-resident defendants have sufficient minimum contacts with the forum state such that maintenance of the suit does not offend "traditional notions of fair play and substantial justice." Intl. Shoe Co. v. Wash., Office of Unemp't. Comp. and Placement, 326 U.S. 310, 316 (1945). Personal jurisdiction must be present for "each claim asserted against a defendant." Action Embroidery Corp. v. Atlanta Embroidery, Inc., 368 F.3d 1174, 1180-81 (9th Cir. 2004). Personal jurisdiction may be either general, all-purpose jurisdiction, or specific, suit-related jurisdiction. Schwarzenegger, 374 F.3d at 800; Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, nn.8-9 (1984).
FINDINGS
I. General Personal Jurisdiction
A court may assert general personal jurisdiction over an out-of-state corporation "only when the corporation's affiliations with the State in which suit is brought are so constant and pervasive 'as to render it essentially at home in the forum State.'" Daimler, 134 S. Ct. at 751 (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)) (emphasis added). The U.S. Supreme Court has explained that the "paradigm" all-purpose forums for general jurisdiction are a corporation's place of incorporation and principal place of business. Daimler, 134 S. Ct. at 760-61; Goodyear, 564 U.S. at 919. In Daimler, the Court applied the Goodyear "at home" standard and noted that finding a corporation at home outside of these paradigm all-purpose forums would be "an exceptional case." Daimler, 134 S. Ct. at 760-61; Goodyear, 564 U.S. at 919. The question in these exceptional cases is "whether . . . the corporation's 'affiliations with the State are so continuous and systematic as to render it essentially at home in the forum State.'" Daimler, 134 S. Ct. at 761 (quoting Goodyear, 564 U.S. at 919).
The inquiry should not be based solely "on the magnitude of the defendant's in-state contacts but rather on an appraisal of a corporation's activities in their entirety, nationwide and worldwide." Id. at 762 n.20. This is an exacting standard—as it should be—because a finding of general jurisdiction permits a defendant to be haled into court in the forum state to answer for any of its activities anywhere in the world. Schwarzenegger, 374 F.3d at 801 (citing Brand v. Menlove Dodge, 796 F.2d 1070, 1073 (9th Cir. 1986)). "A corporation that operates in many places can scarcely be deemed at home in all of them." Daimler, 134 S. Ct. at 762 n.20.
Here, SNHU is a private non-profit university incorporated and headquartered in New Hampshire. Sergi Decl ¶ 3; Compl. ¶ 2. SNHU's main campus is in Manchester, New Hampshire, and it has four regional centers in New Hampshire and Maine. Sergi Decl. ¶ 4. Therefore, Fireside must meet Daimler's "exceptional case" standard for this court to assert general jurisdiction over SNHU.
In 1995, SNHU launched an Internet-based distance learning program. Fireside Decl., Ex. 1, at 6. By 2016, SNHU offered over 200 undergraduate and graduate online degree programs and certificates and enrolled 73,178 online-only, distance-learning students—341 of whom reside in Oregon. Fireside Decl., Ex. 2, at 6, 22; Decl. of Brian Donaldson in Supp. of Def.'s Mot. to Dismiss ¶ 2 ("Donaldson Decl."), ECF #9. SNHU is registered as an out-of-state charitable organization in Oregon and is also a signatory of the National Council for State Authorization Reciprocity Agreement ("NC-SARA"). Fireside Decl., Ex. 4, 34-35, Ex. 6, at 41-42. As a signatory of NC-SARA, Oregon students may receive credit at their primary college or university for online classes taken with SNHU. Fireside Decl., Ex. 5.
SNHU employed 9,281 people and reported $581,366,224 total revenue in fiscal year 2016. Decl. of Katie Mantenuto in Supp. of Def's Mot. to Dismiss ¶ 3 ("Mantenuto Decl."), ECF #14; Donaldson Decl. ¶ 3. During the same timeframe, SNHU employed 64 people in Oregon and reported $3,119,185 in Oregon revenue. Donaldson Decl. ¶ 4; Mantenuto Decl. ¶ 4. Thus, 0.5% of SNHU's online-only, distance-learning students reside in Oregon, 0.7% of its staff works remotely in Oregon, and 0.5% of its revenue is derived from Oregon. The magnitude of these contacts and activity is small in comparison to SNHU's nationwide contacts and activities. See BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549, 1554, 1559 (2017) (holding that general personal jurisdiction was not justified over a railroad company with only 6% of its total track mileage, less than 5% of its total work force, less than 10% of its total revenue generated, and only 4% of its physical facilities inside of the forum).
Additionally, SNHU advertises online and those advertisements can be accessed by persons physically present in Oregon. Fireside Suppl. Resp, ECF #31, Ex. 1 (showing SNHU's multiple YouTube channels and advertisements of SNHU's Online Learning Experience and other programs). SNHU also buys time on national cable television networks, where its commercials appear across the country, including in Oregon. See Decl. of Scott Durand in Supp. of Def.'s Mot. to Dismiss ¶ 3, ECF #23. However, national advertisements that reach every state are not purposefully directed at any one state. Shute v. Carnival Cruise Lines, 897 F.2d 377, 381 (9th Cir. 1990), rev'd on other grounds, 499 U.S. 585 (1991) (finding no general jurisdiction despite advertising in the local media and mailing brochures to forum residents). Moreover, the Ninth Circuit has acknowledged that operating even a highly interactive website does not give rise to general personal jurisdiction. Mavrix Photo, 647 F.3d at 1226-27; see also De Leon v. KBR, Inc., No. 11-00685 ACK-BMK, 2012 WL 1606068, at *5 (9th Cir. 2012).
Because SNHU is not essentially at home in Oregon, this court does not have general personal jurisdiction over SNHU.
II. Specific Personal Jurisdiction
For a court to exercise specific personal jurisdiction over a non-resident defendant, "the defendant's suit-related conduct must create a substantial connection with the forum State." Walden v. Fiore, 134 S. Ct. 1115, 1126 (2014) (emphasis added). The inquiry "focuses on the relationship among the defendant, the forum, and the litigation." Id. (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775 (1984)). First, the relationship must arise out of the contacts that the defendant creates with the forum state. Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)). Second, the court looks to the defendant's contacts with the forum state itself, not the defendant's contacts with persons who reside there. Id. (citing Int'l Shoe, 326 U.S. at 319). The defendant's conduct must form the necessary connection with the forum state that is the basis for jurisdiction. Id. at 478. This "'minimum contacts' inquiry principally protects the liberty of the nonresident defendant, not the interests of the plaintiff." Walden, 134 S. Ct. at 1125 n.9 (2014) (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-92 (1980)).
The Ninth Circuit employs a
three-part test to assess whether a defendant has sufficient minimum contacts with the forum State to be subject to specific personal jurisdiction:Picot v. Weston, 780 F.3d 1206, 1211-12 (9th Cir. 2015) (citing Schwarzenegger, 374 F.3d at 802). "The plaintiff has the burden of proving the first two prongs. If [s]he does so, the burden shifts to the defendant to 'set forth a 'compelling case' that the exercise of jurisdiction would not be reasonable.'" Id. (citing CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1076 (9th Cir. 2011)). If considerations of reasonableness dictate, "jurisdiction may be established with a lesser showing of minimum contact than would otherwise be required." Haisten v. Grass Valley Med. Reimbursement Fund, Ltd., 784 F.2d 1392, 1397 (9th Cir. 1986) (citing Burger King, 471 U.S. at 462) (emphasis in original).
(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.
The exact form of the jurisdictional inquiry depends on whether plaintiff's claims sound in contract or in tort. Picot, 780 F.3d at 1212. For claims sounding in contract, courts conduct a "'purposeful availment' analysis and ask whether a defendant has 'purposefully availed himself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.'" Picot, 780 F.3d at 1212 (quoting Schwarzenegger, 374 F.3d at 802) (alterations omitted). "For claims sounding in tort, [courts] instead apply a 'purposeful direction' test and look to evidence that the defendant has directed his actions at the forum State, even if those actions took place elsewhere." Id. (citing Schwarzenegger, 374 F.3d at 802-03). Fireside's claims—for refusal to hire, discrimination, retaliation, and aiding and abetting pregnancy and sex discrimination—sound in tort. Therefore, the court asks whether SNHU purposefully directed its actions towards Oregon.
A. Purposeful Direction
To determine whether the first prong of the three-pronged minimum-contacts test is satisfied when the claims sound in tort, the Ninth Circuit employs the three-part Calder effects test. Picot, 780 F.3d at 1214. A defendant purposefully directs her activities at the forum if she: "(1) committed an intentional act, (2) expressly aimed at the forum State, (3) causing harm that the defendant knows is likely to be suffered in the forum State." Id. (quoting Dole Food Co. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002)); accord Calder v. Jones, 465 U.S. 783 (1984).
In applying the test, courts "must 'look[ ] to the defendant's contacts with the forum State itself, not the defendant's contacts with persons who reside there.'" Picot, 780 F.3d at 1214 (quoting Walden, 134 S. Ct. at 1122). A "'mere injury to a forum resident is not a sufficient connection to the forum. . . . an injury is jurisdictionally relevant only insofar as it shows that the defendant has formed a contact with the forum State.'" Picot, 780 F.3d at 1214 (quoting Walden, 134 S. Ct. at 1125).
1. Intentional Act
The intentional-act prong of the Calder effects test is easily satisfied. SNHU intentionally acted when its officers e-mailed Fireside notifying her about the first position, called her on the phone to interview her, and then called her on the phone and e-mailed her to inform her that she had not been chosen for the positions. It also acted by hosting a website.
2. Expressly Aimed
The expressly-aimed prong is not satisfied. This prong "asks whether the defendant's allegedly tortious action was 'expressly aimed at the forum.'" Picot, 780 F.3d at 1214 (internal quotation omitted). To establish "express aiming," the plaintiff must demonstrate individual targeting of forum residents. See Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d 1199, 1225 (9th Cir. 2006). In other words, the defendant's actions must be taken for the purpose of affecting a particular forum resident. See Washington Shoe Co. v. A-Z Sporting Goods Inc., 704 F.3d 668, 674 (9th Cir. 2012). The express-aiming requirement is not met where it is merely foreseeable that there will be an impact on individuals in the forum state. Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1157 (9th Cir. 2006); Schwarzenegger, 374 F.3d at 805.
Both Walden and Picot are particularly instructive here. In Walden, two professional gamblers were waiting in the Atlanta Hartsfield-Jackson Airport to catch a connecting flight to Las Vegas, Nevada, when a Georgia police officer deputized by the DEA seized their gambling bank. Walden, 134 S. Ct. at 1119. The gamblers brought a Bivens action in Nevada against the officer alleging that an affidavit he helped draft to show probable cause for the seizure was false and misleading. Id. at 1119-20. Relying on the Calder effects test, the District Court for the District of Nevada determined the officer's search and seizure of the plaintiff's gambling bank in Georgia did not establish a basis to exercise specific personal jurisdiction in Nevada. Id. at 1120. The Ninth Circuit reversed the district court reasoning that the officer "'expressly aimed' his submission of the allegedly false affidavit at Nevada by submitting the affidavit with knowledge that it would affect persons with a 'significant connection' to Nevada." Id.
The Supreme Court reversed, reasoning that the Ninth Circuit had impermissibly shifted the analytical focus from the defendant's contacts with the forum to the defendant's contacts with the plaintiff. Id. at 1124. "Regardless of where a plaintiff lives or works, an injury is jurisdictionally relevant only insofar as it shows that the defendant has formed a contact with the forum State." Id. at 1125 (emphasis added). The Court held that the gamblers' "claimed injury does not evince a connection" between the defendants and the forum state and that the injury was not the sort that was "tethered to [the forum State] in any meaningful way." Id. The Court reasoned—even assuming the officer knew the gamblers resided in Nevada and knew they would suffer the loss of funds there—that they were injured in Nevada "not because anything independently occurred there, but because Nevada is where [the gamblers] chose to be. . . ." That is, the gamblers would have experienced the same injury wherever they might have traveled. Id.
Similarly, the Ninth Circuit in Picot concluded that the defendant's actions "did not connect him with [the forum state] in a way sufficient to support the assertion of personal jurisdiction over him." Picot, 780 F.3d at 1215. There, Weston, Manos, and Picot worked together to develop and market an electrolyte technology for use in hydrogen fuel cells. Id. at 1209.
Weston was a resident of Michigan and Picot was a resident of California. Id. After early dealings in Texas, Picot traveled with Manos to meet Weston at a restaurant in Michigan where Weston claims an oral agreement was reached that, in addition to monthly payments, Weston would receive one-third of all proceeds from the eventual sale of the technology. Id. at 1210. Weston worked to develop the technology from his office in Michigan, but he also traveled to California on two occasions for about two weeks to meet with Picot and Manos. Id. at 1210, 1213. Sometime later, Picot and Manos sold the technology without Weston's knowledge or approval, and when Manos informed Weston of the sale, Weston demanded his share of the proceeds. Id. at 1210. "Weston's lawyer sent Manos and Picot an e-mail threatening to sue if they did not pay, . . ." which caused the buyer to cease making payments to Picot and Manos. Id.
Picot and Manos filed a declaratory action against Weston in California seeking inter alia damages for intentional interference with the sales contract. Id. The District Court dismissed the action for lack of personal jurisdiction and the Ninth Circuit affirmed reasoning "'none of [Weston's] challenged conduct had anything to do with [California] itself.'" Id. at 1215 (citing Walden, 134 S. Ct. at 1125).
Weston's allegedly tortious conduct consists of making statements to [an Ohio resident] that caused [a Delaware corporation with offices in Ohio] to cease making payments into two trusts (in Wyoming and Australia). Weston did all this from his residence in Michigan, without entering California, contacting any person in California, or otherwise reaching out to California.
. . . .
Picot's injury, an inability to access out-of-state funds, is not tethered to California in any meaningful way. Rather, his injury is entirely personal to him and would follow him wherever he might choose to live or travel. The effects of
Weston's actions are therefore not connected to the forum State in a way that makes those effects a proper basis for jurisdiction.Id. (citing Walden, 134 S. Ct. at 1125) (internal quotation marks and alterations omitted).
Here, SNHU e-mailed and called Fireside in Oregon, and it operates a website that Fireside accessed from Oregon. Thus, the court must ask whether SNHU expressly aimed such conduct at Oregon.
In December 2015, Edwards sent an e-mail advertising virtual, Assessment Team Lead Positions to 192 CFA Faculty Reviewers from at least 33 states. Compl. ¶ 6; Fireside Decl. ¶ 9; Edwards Decl. ¶ 2, 4; Suppl. Edwards Decl. ¶ 3; Dec. 17, 2015 Edwards E-mail, ECF #7-1. Seventy-six individuals then applied for the positions through a website that was open to all 192 CFA Faculty Reviewers. Whitmore Decl. ¶ 4; Suppl. Morin Decl. ¶ 3. Two applicants were residents of Oregon. Whitmore Decl. ¶ 4. At best, Fireside has established that SNHU targeted a particular group of its employees (CFA Faculty Reviewers) with the December 2015 e-mail advertising the Assessment Team Lead Positions. However, it is undisputed that the CFA Faculty Reviewer positions—including the position then held by Fireside—are "virtual" positions that can be performed from any state with a web portal, as were the Assessment Team Lead Positions advertised in the December 2015 e-mail. Whitmore Decl., ¶ 3; Edwards Decl., ¶ 4. Sending a single e-mail to a particular group of employees who live and work remotely from a multitude of states is not an activity that is "expressly aimed" at any given state. While the e-mail may have reached employees in fewer than all 50 states, SNHU did not "individually target" particular states. Instead, its e-mail targeted potential applicants with particular work experience (i.e. already holding a particular job), and happened to reach employees in particular states only through the fortuity of the employee's choice of residence. Cf. Picot, 780 F.3d at 1210 (finding no personal jurisdiction over defendant who sent an e-mail threatening litigation when cause of action, for intentional interference with the sales contract, arose in part from the e-mail); NexLearn, LLC v. Allen Interactions, Inc., 859 F.3d 1371, 1379-80 (Fed. Cir. 2017) (finding no personal jurisdiction over a defendant in patent dispute that sent a single mass e-mail advertisement to its subscribers nationwide); Planet Aid, Inc. v. Reveal, Center for Investigative Reporting, 2017 WL 2778825, at *10 (D. Md. 2017) (finding no personal jurisdiction over a defendant in defamation action who sent three tweets and four e-mails to plaintiffs because the tweets and e-mails did not create a substantial connection with the forum state); Sciortino v. CMG Capital Mgmt. Grp., Inc., 2016 WL 4799099, at *6 (E. D. La. 2016) (finding no personal jurisdiction over defendant whose officers negotiated plaintiff's remote employment agreement through telephone and e-mail); Rilley v. MoneyMutual, LLC, 884 N.W.2d 321, 329 (Minn. 2016) (finding specific personal jurisdiction over a defendant that sent over 1,000 e-mails to residents in the forum state).
The record does not conclusively establish that the December 2015 e-mail reached employees in fewer than 50 states. Instead, individuals living in only 33 states responded by applying for the Assessment Team Lead positions advertised in that e-mail. If, in fact, the e-mail reached employees in all 50 states, the email job advertisement would be analytically indistinguishable from posting a job on a web page accessible from any state. --------
Three months later, Fireside applied for a full-time Faculty position through SNHU's website. Compl. ¶ 15. The website can be accessed from anywhere in the world with Internet access. Morin Decl. ¶ 3. Sixty-seven applicants from twenty-four states applied. Morin Decl. ¶ 4. Fireside was the only applicant from Oregon. Morin Decl. ¶ 4. Although Fireside made it to the final stages of the hiring process, she was informed by e-mail that she had not been selected for the position. Hill Decl. ¶¶ 5-6. Hosting a website that can be accessed from anywhere does not expressly aim activity towards any given state. Holland Am. Line Inc. v. Wartsila N.A., Inc., 485 F.3d 450, 460 (9th Cir. 2007) ("We consistently have held that a mere web presence is insufficient to establish personal jurisdiction."); Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 419 (9th Cir. 1997); De Leon v. KBR, Inc., CIV. 11-00685 ACK, 2012 WL 1606068, at *7 (D. Haw. May 8, 2012) ("merely running a website available for the entire world population to view does not create personal jurisdiction over a defendant in a particular venue where the website is accessed.").
Furthermore, none of the SNHU staff who interacted with Fireside live in Oregon, work in Oregon, or even traveled to Oregon to meet with Fireside. Edwards Decl. ¶ 2 (lives and works in New Hampshire); Lesniak Decl. ¶ 2, ECF #8 (lives and works remotely from Florida); Donaldson Decl. ¶ 2 (works in New Hampshire); Morin Decl. ¶ 2 (works in New Hampshire); Batchelor Decl. ¶ 2 (works in New Hampshire); Mantenuto Decl. ¶ 2 (works in New Hampshire); Hill Decl. ¶ 2 (works in New Hampshire); MacCarty Decl. ¶ 2 (works in Vermont). These staff members had less contact with the forum state than the defendant in Picot. There, the defendant traveled to the forum state for about two weeks on two separate occasions. Picot, 780 F.3d at 1213. Nevertheless, the Ninth Circuit held that the defendant had not purposefully directed his activity toward the forum state. Id. at 1215. Moreover, as in both Walden and Picot, the alleged tortious conduct here was all performed from outside the forum state. Walden, 134 S. Ct. at 1125; Picot, at 1213. "[N]one of [SNHU's] challenged conduct had anything to do with [Oregon] itself." Walden, 134 S. Ct. at 1125.
3. Foreseeable Harm
Because Fireside has not established the second prong of the Calder effects test, it is unnecessary to reach the third prong. E.g.,.Schwarzenegger, 374 F.3d at 805 ("All three parts of the test must be satisfied.") ///
B. Conclusion
Courts in the Ninth Circuit have held that a plaintiff's failure to satisfy any of the three prongs of the minimum contacts test establishes that jurisdiction in the forum would deprive the defendant of due process of law. E.g., Picot, 780 F.3d at 1213 n.2 ("Because [plaintiff] has failed to establish that [defendant] purposefully availed himself of the privilege of conducting activities in [the forum State], we need not address whether the suit arises out of [defendant's] forum-related activities, or whether the exercise of jurisdiction would be reasonable."); accord Control Sols., 126 F. Supp. at 1191. Therefore, the court need not decide whether the claims arise out of or relate to the defendant's forum related activities or whether, after shifting the burden to the defendant, the exercise of jurisdiction would be unreasonable.
III. Leave to Amend
Fireside requests leave to amend her complaint to add federal civil rights claims under 42 U.S.C. § 2000e-5(f)(3), which confer federal question jurisdiction under 28 U.S.C.§ 1391(b). She contends that this court would have federal question jurisdiction over SNHU under Section 1391(b)(3), which states that venue is proper "in the judicial district where the employee would have worked but for the alleged practice."
However, federal question jurisdiction is a separate doctrine altogether: federal subject matter jurisdiction. This court already has subject matter jurisdiction under diversity jurisdiction because the citizenship of the parties is completely diverse and the amount in controversy exceeds $75,000. The addition of federal claims would do nothing to confer personal jurisdiction over SNHU in Oregon. /// ///
RECOMMENDATION
Because Fireside has failed to meet her burden of establishing personal jurisdiction, SNHU's Motion to Dismiss (ECF #6) should be GRANTED. Accordingly, judgment should be entered in favor of defendant and this action should be dismissed.
SCHEDULING ORDER
These Findings and Recommendation will be referred to a district judge. Objections, if any, are due Friday, August 11, 2017. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
NOTICE
This Findings and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.
DATED July 28, 2017.
/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge