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David L. O'Daniel (SBN: 006418)
GORDON & REES LLP
111 W. Monroe Street, Suite 1600
Phoenix, AZ 85003
Telephone: (602) 794-2472
Facsimile: (602) 265-4716
dodaniel@gordonrees.com
Attorneys for Defendant
UMassFive College Federal Credit Union
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
KENNETH NOLAN, PAULETTE
NOLAN,
Plaintiffs,
vs.
TRANS UNION, LLC, a Delaware
limited liability company, EXPERIAN
INFORMATION SOLUTIONS, INC.,
an Ohio corporation; UMASSFIVE
COLLEGE FEDERAL CREDIT
UNION, a Massachusetts company, and
PORTFOLIO RECOVERY
ASSOCIATES, LLC, a Delaware
company,
Defendants.
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CASE NO. 4:17-cv-00094-RCC
UMASSFIVE COLLEGE FEDERAL
CREDIT UNION’S
MOTION TO DISMISS FOR LACK OF
PERSONAL JURISDICTION
OR ALTERNATIVELY
MOTION FOR CHANGE OF VENUE
(ORAL ARGUMENT REQUESTED)
Defendant UMassFive College Federal Credit Union (“UMassFive”), makes this
special, limited appearance through its counsel and requests that this Court dismiss the
Complaint/claims of Plaintiffs for the following reasons.
This Court lacks personal jurisdiction over UMassFive and dismissal is
appropriate pursuant to Rule 12(b)(2), Fed.R.Civ.P. UMassFive is a federal credit union
located in Massachusetts, has no branches in Arizona, own no property or assets in
Arizona, conducts no business in Arizona, is not authorized to conduct business in
Arizona, pays no taxes in Arizona, the loan made to Plaintiffs was made in Massachusetts
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and was secured by real property in Massachusetts, the deed in lieu of foreclosure
occurred in Massachusetts, and no actions were directed into Arizona.
Alternatively, Arizona is a forum non conveniens and venue is inappropriate
pursuant to Rule 12(b)(3), Fed.R.Civ.P. Although the case should never have been filed,
Massachusetts is the appropriate venue for an action against UMassFive.
The bases for this Motion are more completely discussed in the following
Memorandum of Facts and Authorities, which is incorporated by this reference. This
Motion is supported by the Declaration of Richard Kump , which is attached as Exhibit A
and incorporated by this reference Accordingly, the Complaint should be dismissed as to
UMassFive, and UMassFive should be awarded its costs and attorneys’ fees pursuant to
A.R.S. §§ 12-341.01 and/or 12-349..
MEMORANDUM OF FACTS AND AUTHORITIES
I. FACTUAL BACKGROUND1
UMassFive is a federal credit union located in Massachusetts. It owns no property
in Arizona and owns no assets in Arizona. UMassFive has no employees in Arizona and
has no offices in Arizona. UMassFive is not registered in Arizona and does no business
in Arizona. UMassFive pays no taxes in Arizona. UMassFive does not and has not
availed itself of the court system in Arizona. UMassFive has not intentionally and
purposefully directed activities into Arizona.
UMassFive made a loan to Plaintiffs secured by real property in Massachusetts.
At the time of the loan, the Plaintiffs are believed to have resided in Massachusetts. The
Plaintiffs defaulted on the loan, and UMassFive took the property back through a deed in
lieu of foreclosure. The deed in lieu was executed in Massachusetts. UMassFive has no
contacts with Ajo, Arizona, the place events are alleged to have occurred in the
Complaint.
II. ARGUMENT
1 This Factual Background is taken from the Declaration of Richard Kump and some of the
allegations in the Complaint.
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A. The Complaint/Claims of Plaintiffs Should Be Dismissed for Lack of Personal
Jurisdiction as to UMassFive College Federal Credit Union
The test for personal jurisdiction is well-established. “A district court may assert
personal jurisdiction over a nonresident defendant only when doing so would be (1)
allowed by the forum state’s long-arm statute, and (2) consistent with due process.”
MMI, Inc. v. Baja, Inc., 743 F.Supp. 2d 1101, 1108 (D.Ariz. 2010). In Arizona, personal
jurisdiction is coextensive with that permitted by due process. See Rule 4.2,
Ariz.R.Civ.P. Due process requires that a person or corporation have “certain minimum
contacts with [the forum] such that the maintenance of the suit does not offend traditional
notions of fair play and substantial justice.” See Int’l Shoe Co. v. Washington, 32 U.S.
310, 316 (1945). Plaintiffs bear the burden of establishing the court’s personal
jurisdiction over UMassFive, whether it be general or specific jurisdiction. Harris Rutsky,
Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1128-29 (9th Cir. 2003). To meet that
burden, Plaintiffs must produce admissible evidence that, if believed, would establish
jurisdiction. Id. at 1129. The court cannot assume the truth of allegations in Plaintiffs’
Complaint contradicted by sworn affidavit. Data Disc, 557 F.2d at 1284; Alexander, 972
F.2d at 262. Where, as here, the defendant moves to dismiss as its initial response to the
complaint, a plaintiff must meet its burden by making at least a prima facia showing that
personal jurisdiction exists. Doe v. Unocal Corp., 248 F.3d 915, 922 (9th Cir. 2001)
(citing Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995)).
For a court’s assertion of personal jurisdiction over a defendant to satisfy due
process, the defendant must have “minimum contacts” with the forum state “such that the
maintenance of the suit does not offend traditional notions of fair play and substantial
justice.” Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir. 2004)
(quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). The two
primary bases for the exercise of personal jurisdiction over a defendant are: (1) “general
jurisdiction,” requiring the defendant to have broad and frequent contacts with the forum
state; and (2) “specific jurisdiction,” which may rest on more limited contacts specifically
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related to the plaintiff’s cause of action. See Gator.Com Corp. v. L.L. Bean, Inc., 341
F.3d 1072, 1076 (9th Cir. 2003).
The underlying basis for either general or specific jurisdiction is the defendant’s
purposeful contacts with the forum state. As stated by the Ninth Circuit Court of
Appeals:
Whether dealing with specific or general jurisdiction, the touchstone
remains “purposeful availment.” By requiring that contacts proximately
result from actions by the defendant himself that create a “substantial
connection” with the forum State, the Constitution ensures that a defendant
will not be haled into a jurisdiction solely as a result of “random”
“fortuitous,” or “attenuated” contacts.
Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 F.3d 1114, 1123 (9th
Cir. 2002) (emphasis in original) (quoting Burger King Corp. v. Rudzewicz, 471 U.S.
462, 475 (1985)). Both types of jurisdiction are absent in this case. UMassFive has not
initiated any contact with Arizona and has not purposefully availed itself of the privileges
of conducting business in Arizona.
1. UMassFive Lacks the Broad and Frequent Contacts Necessary for
General Jurisdiction in Arizona.
For general jurisdiction, a “defendant’s contacts with a forum [must be] so
substantial, continuous, and systematic that the defendant can be deemed to be ‘present’
in that forum for all purposes.” Menken v. Emm, 503 F.3d 1050, 1057 (9th Cir. 2007). To
establish general jurisdiction over UMassFive, Plaintiffs must prove that UMassFive has
engaged in “continuous and systematic general business contacts” with Arizona. See
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801(9th Cir. 2004) (quoting
Helicopteros Nactionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984)). To be
sufficient, such contacts must “approximate physical presence” by UMassFive in
Arizona. Id. at 801 (quoting Bancroft & Masters, Inc. v. Augusta National Inc., 223 F.3d
1082, 1086 (9th Cir. 2000)). UMassFive does not have such contacts with Arizona.
As set forth in the Declaration of Richard Kump, Exhibit A, UMassFive simply
does not conduct business operations in Arizona. UMassFive has no presence in Arizona
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and does not own property or assets in Arizona. UMassFive does not have employees in
Arizona and does not pay taxes in Arizona. UMassFive does not sell goods or services in
Arizona, and has not taken advantage of the court systems in Arizona. UMassFive is not
licensed to conduct business in Arizona. In essence, UMassFive has no contacts with
Arizona. Without contacts with Arizona, UMassFive has not purposefully availed itself
of the privilege of conducting business in Arizona. No plausible argument exists for
general jurisdiction in this case. Tellingly, Plaintiffs’ Complaint does not include any
allegation suggesting that UMassFive has purposefully availed itself of the privilege of
conducting business in Arizona, much less established continuous and systematic
contacts with Arizona that would approximate physical presence.
2. UMassFive Lacks the Minimum Contacts Necessary for Specific
Jurisdiction in Arizona.
The Ninth Circuit has adopted the following three-part test to determine whether
the exercise of specific jurisdiction over a defendant is appropriate:
(1) The defendant must purposefully direct his activities or
consummate some transaction with the forum or a 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.
Boschetto v. Hansing, 539 F.3d 1011, 1016 (9th Cir. 2008) (citing Schwarzenegger, 374
F.3d at 802). If each of these elements is not satisfied “jurisdiction in the forum would
deprive the defendant of due process of law.” Pebble Beach Co. v. Caddy, 453 F.3d
1151, 1155 (9th Cir. 2006). None of the elements are satisfied in the present case.
To establish the first element, Plaintiffs must prove that UMassFive either
purposefully availed itself of the privilege of conducting business activities in Arizona or
purposefully directed its activities toward Arizona. See Schwarzenegger, 374 F.3d at
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802. “A showing that a defendant purposefully availed himself of the privilege of doing
business in a forum state typically consists of evidence of the defendant’s actions in the
forum, such as executing or performing a contract there.” Id. “A showing that a
defendant purposefully directed his conduct toward a forum state, by contrast, usually
consists of evidence of the defendant’s actions outside the forum state that are directed at
the forum, such as the distribution in the forum state of goods originating elsewhere.” Id.
at 803.
As discussed above, UMassFive has not executed or performed a contract in
Arizona and has never engaged in any business transaction in Arizona. And the
underlying transaction with Plaintiffs occurred in Massachusetts.
The first element of the specific jurisdiction test is absent, and this Court does not have
specific jurisdiction over UMassFive.
Even if UMassFive had purposefully availed itself of the privilege of conducting
business in Arizona or purposefully directed its activities into Arizona, which it did not,
exercising jurisdiction over UMassFive would be unreasonable and violate due process.
See Int’l Shoe, 326 U.S. at 316 (1945) (holding that exercise of personal jurisdiction must
“not offend traditional notions of fair play and substantial justice”); Ziegler, 64 F.3d at
474-75. According to the Ninth Circuit:
The reasonableness determination requires the consideration of several
specific factors: (1) the extent of the defendant’s purposeful interjection
into the forum state; (2) the burden on the defendant in the defending
forum; (3) the extent of the conflict with the sovereignty of the defendant’s
state; (4) the forum state’s interest in adjudicating the dispute; (5) the most
efficient juridical resolution of the controversy; (6) the importance of the
forum to the plaintiff’s interest in convenient and effective relief; and (7)
the existence of an alternative forum.
Bancroft & Masters, 223 F.3d at 1088 (citing Burger King Corp. v. Rudzewicz, 471 U.S.
462, 476 (1985)). UMassFive does not have any contacts with Arizona, and did not
inject itself into Arizona to do business with Plaintiffs. The underlying transaction
occurred in Massachusetts. The burden that would be placed on it in litigating a dispute
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in Arizona and flying across the country would be unreasonable. Litigating in Arizona
would directly conflict with the sovereignty of Massachusetts. Arizona has no interest in
adjudicating this case, and Massachusetts would be an efficient forum for the resolution
of this case. And the U.S. District Court in Massachusetts is an equally capable forum.
In conclusion, this Court does not have general or specific jurisdiction over
UMassFive. Accordingly this Court should dismiss the Complaint/claims against
UMassFive. The Court should also grant the attorneys’ fees and costs incurred by
UMassFive.
B. Alternatively, This Court Should Dismiss the Complaint On the Basis
of Forum Non Conveniens/Improper Venue Because Massachusetts __
Is the More Convenient Forum
Alternatively, assuming, arguendo, that this Court could exercise personal
jurisdiction, the Court should dismiss the action if (1) there is an adequate alternate forum
and (2) the balance of private and public interest factors favors dismissal.2
An alternative forum exists where UMassFive is amenable to service of process in
Massachusetts, and the Massachusetts forum provides the Plaintiffs with a sufficient
remedy.3 As a federal credit union in Massachusetts, UMassFive is amenable to service
of process in Massachusetts. Plaintiffs may pursue their purported claims in
Massachusetts to the same extent they could pursue them in Arizona, and indeed the
claims are based on alleged conduct by UMassFive that occurred in Massachusetts.
Massachusetts offers a superior forum for Plaintiffs’ claims (even if they fail
substantively).4
The private interest factors weigh strongly in favor of dismissal.5 The relevant
evidence and witnesses are located in Massachusetts, and those witnesses may not be
2 Lueck v. Sundstrand Corp., 236 F.3d 1137, 1142-43 (9th Cir. 2001).
3 See Fields, 796 F.2d at 302 (holding that convenience and efficiency mitigate strongly in favor
of where the events in question took place).
4 Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1118 (9th Cir. 2002).
5 These factors include: (1) the residence of the parties and witnesses; (2) the forum’s
convenience to the litigants; (3) access to physical evidence and other sources of proof; (4)
whether unwilling witnesses can be compelled to testify; (5) the cost of bringing witnesses to
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compelled to appear in this court. It would be far more convenient and less expensive to
obtain evidence and the attendance of witnesses in Massachusetts.
The public interest factors also weigh in favor of dismissal.6 Arizona has minimal
interest in this lawsuit. Arizona citizens should not be burdened with jury duty for what
could be a lengthy trial involving conduct that allegedly occurred in Massachusetts.
Massachusetts has a far greater interest in this action including the current interpretation
of its laws. Accordingly, the Complaint should be dismissed because Arizona is a forum
non conveniens and venue is improper.
III, CONCLUSION
UMassfive has no systematic contact with Arizona and had no specific contacts
with Arizona related to Plaintiffs. As discuss above, this Court does not have general or
specific jurisdiction over UMassFive. The Complaint and the claims should therefore be
dismissed as to UMassFive. Alternatively, Arizona is an inconvenient and burdensome
forum. The Complaint and the claims should be dismissed for forum non conveniens,
and Plaintiffs required to file their claims against UMassFive in Massachusetts.
UMassFive should also be awarded its costs and attorneys’ fees pursuant to A.R.S.§§12-
341.01 and/or -349.
Dated this 8th day of May, 2017.
GORDON & REES LLP
By: /s/ David L. O’Daniel___________
David L. O'Daniel
111 W. Monroe St., Suite 1600
Phoenix, AZ 85003
Attorneys for Defendant UMassFive
College Federal Credit Union
trial; (6) the enforceability of the judgment; and (7) all other practical problems that make trial of
a case easy, expeditious and inexpensive. Lueck, 236 F.3d at 1145.
6 Lueck, 236 F.3d at 1145. These factors include: (1) local interest in the lawsuit; (2) the court’s
familiarity with governing law; (3) burden on local courts and juries; (4) congestion in the court;
and (5) the costs of resolving a dispute unrelated to this forum.
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I hereby certify that on May 8, 2017 I electronically transmitted the foregoing document
to the Clerk’s office using the CM/ECF System for filing and transmittal of a Notice of
Electronic Filing to the following CM/ECF registrants:
Trinette G. Kent
KENT LAW OFFICES
10645 N. Tatum Blvd, Suite 200-192
Phoenix, AZ 85028
tkent@kentlawpc.com
Attorneys for Plaintiffs
Of Counsel to:
Michigan Consumer Credit Lawyers
22142 West Nine Mile Road
Southfield, MI 48033
Attorneys for Plaintiffs
Jahleel Garcia
8011107/32615273v.1
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