Opinion
No. 1 CA-CV 13-0056
02-06-2014
JUDITH WALKER, Plaintiff/Appellant, v. HARRY ZELIG, M.D.; JULIE MADORSKY, M.D.; CINDY M. LOPEZ; LINDA K. WHITNEY; HEDY CHANG; and the MEDICAL BOARD OF CALIFORNIA, Defendants/Appellees.
Judith Walker, Fort Mohave Plaintiff/Appellant in Propria Persona Jennings, Strouss & Salmon, P.L.C., Phoenix By Richard K. Delo, Matthew L. Cates Counsel for Defendants/Appellees
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Mohave County
No. B8015CV201204014
The Honorable Charles W. Gurtler, Judge
AFFIRMED
COUNSEL
Judith Walker, Fort Mohave
Plaintiff/Appellant in Propria Persona
Jennings, Strouss & Salmon, P.L.C., Phoenix
By Richard K. Delo, Matthew L. Cates
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which Presiding Judge Patricia A. Orozco and Judge Kenton D. Jones joined. WINTHROP, Judge:
¶1 Plaintiff/Appellant, Judith Walker, appeals the superior court's dismissal of her claims against Defendants/Appellees, Dr. Harry Zelig, Dr. Julie Madorsky, Cindy M. Lopez, Linda K. Whitney, Hedy Chang, and the Medical Board of California ("the Board"), for lack of personal jurisdiction, forum non conveniens, and issue preclusion. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Walker was a physician licensed by the Board. In November 1992, the Board initiated an investigation related to Walker's medical license. Walker subsequently reached a settlement with the Board and stipulated that her medical license be placed on probation. In late 2009 or 2010, Walker applied to have her medical license reinstated; the Board rejected her request after a hearing.
¶3 In May 2011, Walker filed a complaint in Yuma County Superior Court against the Board and several California residents involved in the Board's investigation of Walker's medical license, alleging causes of action arising out of the purported dissemination of defamatory material in Arizona. In an order signed April 10, 2012, the superior court granted the defendants' motions to dismiss on the ground that the court lacked personal jurisdiction over them because they did not purposefully avail themselves of the privilege of conducting activities in Arizona, and it would be unreasonable to exercise jurisdiction over them. We affirmed that ruling. See Walker v. Madorsky, 1 CA-CV 12-0395, 2013 WL 950622, at *1, ¶ 1 (Ariz. App. Mar. 12, 2013) (mem. decision) (review denied Sept. 24, 2013).
Walker also asserted claims against SmithKline Beecham Clinical Laboratories relating to allegedly improper laboratory testing. Those claims are not at issue in this appeal.
¶4 In the meantime, Walker filed this action in Mohave County Superior Court against four of the defendants named in the Yuma case: the Board; Board medical consultant, Dr. Harry Zelig; Dr. Julie Madorsky, a physician reviewer hired by the Board; and Deputy Attorney General for the Office of the Attorney General of California, Cindy M. Lopez. Walker also named as defendants two additional California residents, the Board's Executive Director, Linda K. Whitney, and the Board's Secretary, Hedy Chang. Walker alleged causes of action for libel, invasion of privacy, conspiracy to defame, interference with prospective economic advantage, fraudulent concealment, wrongful institution of civil proceedings, violation of 42 U.S.C. § 1983, battery, abuse of process, and racketeering. Although many of Walker's claims were based on the same acts alleged in the Yuma case, she also set forth additional allegations of wrongful conduct:
• Madorsky, Lopez, and the Board published false allegations contained in two reports the Board prepared in 1995 to Arizona residents in Arizona on July 29, August 8, and November 23, 2011.
• In February 2011, Chang published a false report claiming the Board had recently disciplined Walker, and that report was published in Arizona on July 29, August 8, and November 23, 2011.
• On May 7, 2010, Whitney initiated administrative proceedings against Walker's medical license without probable cause and with malice.
• In October 2011, an attorney representing the Board in the Yuma case circulated laboratory results from the 1992 investigation to counsel for a co-defendant.
¶5 The defendants moved to dismiss on the ground that the superior court lacked personal jurisdiction over them. The court granted the motion on the grounds of lack of personal jurisdiction over the defendants, forum non conveniens, and issue preclusion. Walker timely appealed the court's January 10, 2013 judgment. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(1) (2014).
We cite the current version of the applicable statutes unless changes material to our decision have since occurred.
ANALYSIS
¶6 We review de novo a dismissal for lack of personal jurisdiction. A. Uberti & C. v. Leonardo, 181 Ariz. 565, 569, 892 P.2d 1354, 1358 (1995).
¶7 Arizona Rule of Civil Procedure 4.2(a) allows an Arizona court to assert personal jurisdiction over non-resident defendants to the maximum extent allowed by the United States Constitution. See Planning Grp. of Scottsdale, L.L.C. v. Lake Matthews Mineral Props., Ltd., 226 Ariz. 262, 265, ¶ 12, 246 P.3d 343, 346 (2011). The Due Process Clause requires a showing that the defendants have minimum contacts with the forum "such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (citations omitted). The key issue is whether the aggregate of the defendants' contacts with the forum state makes it fair and reasonable to hale them into court in the forum state with respect to claims arising out of those contacts. Planning Grp., 226 Ariz. at 268, ¶ 25, 246 P.3d at 349. Walker had the burden to make a prima facie showing of jurisdiction by producing evidence - including affidavits, depositions, and exhibits - sufficient to avoid a directed verdict. See Bohreer v. Erie Ins. Exch., 216 Ariz. 208, 211, ¶ 7, 165 P.3d 186, 189 (App. 2007); Gatecliff v. Great Rep. Life Ins. Co., 154 Ariz. 502, 506, 744 P.2d 29, 33 (App. 1987).
¶8 We ruled in the Yuma case that Walker did not identify any purposeful conduct by Zelig, Madorsky, Lopez, and/or the Board that occurred in Arizona or was directed at Arizona because she offered no evidence that Zelig and Madorsky ever published information about her to anyone in Arizona or targeted her in Arizona, and Lopez and the Board did not purposefully avail themselves of Arizona's jurisdiction by sending the Board's investigative file to Walker or others in Arizona at Walker's request. At oral argument in the Mohave County Superior Court, Walker acknowledged the personal jurisdiction determination in the Yuma case was the law of the case, but she argued that Madorsky, Lopez, and the Board had since taken additional steps to target her in Arizona and avail themselves of this state's jurisdiction. In opposition to the motion to dismiss, Walker submitted a declaration from Alan Singer stating he had received in Arizona a package from the Board postmarked August 8, 2011, which contained the stipulation between Walker and the Board, the Board's 1995 reports, and the February 2011 document prepared by Chang. Singer also averred that Darin Caragata received a package from the Board postmarked November 22, 2011, that contained the 1995 reports and the February 2011 Chang document. In addition, Walker submitted Caragata's declaration from the Yuma case, in which he stated he had received a package from the Board containing the 1995 reports on August 8, 2011.
Walker offered no evidence the Board had published the 1995 reports and Chang's February 2011 report in Arizona on July 29, 2011. For purposes of our review, however, we accept the allegation as true. Bancroft & Masters, Inc. v. Augusta Nat'l, Inc., 223 F.3d 1082, 1085 (9th Cir. 2000), holding modified by Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d 1199, 1206-07 (9th Cir. 2006) (recognizing that, when a trial court decides jurisdictional issues on the basis of the pleadings and supporting declarations, the appellate court presumes the facts set forth therein can be proven).
¶9 Walker argues the defendants targeted her in Arizona because they knew she resided in this state and would experience the harm from their alleged tortious conduct here. However, as Walker acknowledges, it is not enough that a defendant acts knowing the effects of his or her conduct will be felt in the forum state. Bancroft & Masters, 223 F.3d at 1086. For a court to exercise personal jurisdiction over a nonresident defendant, the defendant's act must be expressly aimed at the forum state; for example, individually targeting a known forum resident. Id. at 1087.
¶10 In this case, there is no evidence that Madorsky, Lopez, or the Board individually targeted Walker in Arizona, and Walker offered no evidence to negate the possibility that the information Singer and Caragata received was in response to valid public records requests from Walker or her agents. See Cal. Code Regs. tit. 16, § 1354.5(b) (2014) (permitting disclosure upon request of any public document, including accusations, regarding any physician and surgeon licensed in California); Planning Grp., 226 Ariz. at 266, ¶ 16, 246 P.3d at 347 (explaining that the minimum contacts necessary for the exercise of personal jurisdiction cannot "be established through the unilateral activities of the plaintiff; they must instead arise from the defendant's 'purposeful' conduct" (citations omitted)). Indeed, Walker conceded at the oral argument on the motion to dismiss that all of the publications occurred in response to public records requests by third parties or because Singer opened mail addressed to Walker. Given this evidence, Walker has not made a prima facie showing that the contacts of Madorsky, Lopez, and the Board with Arizona were such that it would be fair and reasonable to require them to defend a lawsuit in this state. See Planning Grp., 226 Ariz. at 268, ¶ 25, 246 P.3d at 349.
¶11 With respect to Whitney and Chang, there is no evidence they had sufficient minimum contacts with Arizona to support the exercise of personal jurisdiction over them. Walker alleged Whitney improperly initiated an administrative proceeding concerning Walker's medical license in California, but offered no evidence that Whitney took any action in Arizona or targeted Walker in Arizona. Similarly, Walker's allegations against Chang concerned her alleged publication of a false report in February 2011, and there is no evidence that Chang took any action in Arizona or targeted Walker in Arizona. See id.
¶12 Finally, Walker alleges claims against the Board arising out of its attorney's purported publication of 1992 laboratory testing results to counsel for co-defendants in the Yuma case. The circulation of information between lawyers for the co-defendants in the Yuma case does not establish the contacts necessary for an Arizona court to exercise personal jurisdiction over the Board. See Karsten Mfg. Corp. v. U.S.G.A., 728 F. Supp. 1429, 1434 (D. Ariz. 1990) (recognizing that personal jurisdiction is based on forum-related acts personally committed by a defendant).
¶13 Accordingly, the superior court properly dismissed Walker's complaint for lack of personal jurisdiction.
Because we determine the superior court properly dismissed Walker's complaint for lack of personal jurisdiction, we do not consider her arguments that the court erroneously found Arizona would be an inconvenient forum for this matter and incorrectly applied the doctrine of issue preclusion. See Glaze v. Marcus, 151 Ariz. 538, 540, 729 P.2d 342, 344 (App. 1986) (stating that the appellate court will affirm the trial court's decision if it is correct for any reason supported by the record).
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CONCLUSION
¶14 For the foregoing reasons, we affirm.
¶15 The defendants request an award of attorneys' fees on appeal pursuant to Arizona Rule of Civil Appellate Procedure ("Rule") 25 and A.R.S. § 12-349. Rule 25 provides for sanctions for a frivolous appeal, delay, or other infractions of the civil appellate rules, and § 12-349 authorizes an award of attorneys' fees or other sanctions if, inter alia, an attorney or party brings claims without substantial justification, or solely or primarily for delay or harassment, or if an attorney or party unreasonably expands or delays the proceedings. Although we find the question close, given the record provided us, we conclude that Walker's conduct has not met the threshold necessary to impose sanctions. As the prevailing party on appeal, however, the defendants are entitled to their reasonable costs upon their compliance with Rule 21, ARCAP.