Opinion
1 CA-CV 12-0466
03-21-2013
REWARD CARD SOLUTIONS, LLC, a Nevada limited liability company, Plaintiff/Appellant, v. NICHOLAS ELLIOTT, Defendant/Appellee.
Strojnik, P.C. By Peter Strojnik Attorneys for Appellants Nicholas Elliott Appellee in Propria Persona
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
MEMORANDUM DECISION
(Not for Publication - Rule 28,
Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. CV2011-010664
The Honorable George H. Foster Jr., Judge
AFFIRMED
Strojnik, P.C.
By Peter Strojnik
Attorneys for Appellants
Phoenix Nicholas Elliott
Appellee in Propria Persona
Stuart, FL THUMMA, Judge ¶1 Plaintiff Reward Card Solutions, LLC, doing business as Elite Gift Card (Reward Card) appeals the superior court's order dismissing without prejudice its complaint against defendant Nicholas Elliott for lack of personal jurisdiction. Because the superior court properly concluded Elliott's contacts with Arizona were insufficient to establish personal jurisdiction, the order is affirmed.
FACTS AND PROCEDURAL HISTORY
On appeal from an order dismissing for lack of personal jurisdiction, this court views the facts in the light most favorable to Reward Card. Rollin v. William V. Frankel & Co., 196 Ariz. 350, 352, ¶ 5, 996 P.2d 1254, 1256 (App. 2000).
¶2 Reward Card is a Nevada limited liability company that, according to an affidavit in the record, "maintains an office" in Mesa. According to the complaint, in October 2009, Reward Card sold $35,000 of prepaid credit cards to Sunset Arcade, a Florida limited liability company. After Sunset's purchase, Elliott (a Florida resident) caused the prepaid credit cards to be transferred to Coastal Floors & Granite, a Florida limited liability company. Apparently claiming it had not been paid, in June 2011, Reward Card filed a complaint against Elliott, his spouse "Jane Doe," Sunset and Coastal in Maricopa County Superior Court. Reward Card alleged breach of contract, quantum meruit and scheme or artifice to defraud claims against the defendants and alleged the relevant events occurred in Maricopa County. ¶3 Elliott filed a pro se motion that the superior court construed as challenging Arizona's exercise of personal jurisdiction over Elliott. The motion alleges Elliott is a resident of Florida; that he never conducted any business in Arizona; that the Reward Card contract "was written and signed by both parties in Florida and states that [Reward Card] is a Nevada" entity and that the contract contained no choice of venue provision. In support of the motion, Elliott provided an affidavit stating he resides in Florida, where he asserted the contract arose and was signed. Elliott also submitted documents showing that, in October 2009, Reward Card was authorized as a "foreign limited liability company to transact business in Florida" and had a registered agent to accept service of process in Florida. ¶4 Reward Card's response included a declaration from Reward Card manager Alex Callan. The response conceded that Reward Card is a Nevada limited liability company, but claimed it maintains an office in Mesa. According to Reward Card, Elliott contacted Reward Card, completed and signed a Reward Card "wholesale application" form in Florida and faxed the form from Florida to Reward Card in Mesa. Although the "wholesale application" form lists a Nevada mailing address for Reward Card, the application also lists phone and fax numbers with 602 (Arizona) area codes. Callan's affidavit summarily declared that "all dealings, communications, emails, contacts, contracts and all other events between Mr. Elliott and [Reward Card] occurred from [Reward Card] offices in Mesa, Arizona; and that . . . Elliott was aware that he was dealing with a company located in Mesa, Arizona." Accordingly, Reward Card asserted Arizona could properly exercise personal jurisdiction over Elliott in this case. ¶5 The superior court dismissed the case without prejudice for lack of personal jurisdiction, finding the evidence offered by Reward Card was insufficient to show that Elliott purposely availed himself of the privilege of conducting business in Arizona. Reward Card filed a timely notice of appeal from that ruling. This court has jurisdiction under Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) and 12-2101(A)(3).
Reward Card obtained judgment by default against Sunset and Coastal after they failed to appear or otherwise defend. That judgment, and those defendants, are not part of this appeal. In addition, the record does not indicate that Elliott is married, thereby mooting the "Jane Doe" defendant.
The record does not contain a copy of the Reward Card contract. After the superior court ruled on the motion, Elliott filed an affidavit from Barbara Libbey. Because the superior court did not rely on that affidavit, the substance of that document was not considered on appeal.
Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated.
DISCUSSION
I. Standard Of Review.
¶6 When a defendant moves to dismiss for lack of personal jurisdiction, "the plaintiff has the burden of establishing that jurisdiction is proper." G.T. Helicopters, Inc. v. Helicopters, Ltd., 135 Ariz. 380, 382, 661 P.2d 230, 232 (App. 1983). A plaintiff need only make a prima facie showing of personal jurisdiction. A. Uberti & C. v. Leonardo, 181 Ariz. 565, 569, 892 P.2d 1354, 1358 (1995). When there is no evidentiary hearing, this court reviews the superior court's findings and decision de novo. Planning Grp. of Scottsdale, L.L.C. v. Lake Mathews Mineral Props., Ltd., 226 Ariz. 262, 264 n.1, ¶ 2, 246 P.3d 343, 345 n.1 (2011).
II. Reward Card Failed To Meet Its Burden To Make A Prima Facie Showing Of Specific Personal Jurisdiction.
¶7 Reward Card argues that Arizona properly may exercise specific personal jurisdiction over Elliott. Arizona courts may exercise specific personal jurisdiction over nonresidents "to the maximum extent allowed by the federal constitution." Rollin v. William V. Frankel & Co., 196 Ariz. 350, 353, ¶ 13, 996 P.2d 1254, 1257 (App. 2000) (citations omitted); see also Ariz. R. Civ. P. 4.2(a). Under this standard, and as applicable here, Reward Card must show that Elliott has "sufficient minimum contacts with" Arizona. Rollin, 196 Ariz. at 353, ¶ 13, 996 P.2d at 1257. ¶8 "A finding of minimum contacts 'must come about by an action of the defendant purposefully directed toward the forum State.'" Id. at 353-54, ¶ 13, 996 P.2d at 1257-58 (citations omitted). Reward Card contends Elliott knew he was dealing with Arizona because Elliott faxed the "wholesale application" form to an Arizona area code. However, there is no proper evidence to show that Elliott knew the "602" area code was in Arizona or that Elliott was aware of Reward Card's Arizona office. In fact, the only mailing address listed on the "wholesale application" form is in Nevada. Furthermore, even if Elliott knew he was dealing with an Arizona resident, "it is not enough that a defendant know that he is dealing with an Arizona resident then located in another state; the requisite activity must instead be purposefully directed at the forum." Planning Grp. , 226 Ariz. at 271, ¶ 41, 246 P.3d at 352. ¶9 Apart from one fax sent from Florida to an Arizona phone number, the only other evidence suggesting that Elliott had any interaction with Arizona is Callan's summary assertion that "all dealings, communications, emails, contacts, contracts and all other events between Mr. Elliott and [Reward Card] occurred from [Reward Card] offices in Mesa, Arizona." The record, however, reveals no such communications, emails, contacts, etc. On this record, Reward Card has not shown that Elliott purposefully availed himself of the privilege of conducting activities within Arizona. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-76 (1985). To the contrary, the "quality and nature" of Elliott's relationship to Arizona appears, at most, as "random," "fortuitous" or "attenuated." Id. at 474-75 (citations omitted). Accordingly, the superior court properly found Reward Card failed to show Elliott purposefully established sufficient minimum contacts with Arizona. See Rollin, 196 Ariz. at 358, ¶ 31, 996 P.2d at 1262 (citing Burger King, 471 U.S. at 474).
Reward Card also is required to show that the claims "arise out of or relate to the defendant's forum activities," and that the assertion of personal jurisdiction is reasonable. Rollin, 196 Ariz. at 353-54, ¶¶ 13-14, 996 P.2d at 1257-58. Given Reward Card's failure to establish sufficient minimum contacts, this decision does not address these issues.
The bald assertion by Callan that "Elliott was aware that he was dealing with a company located in Mesa, Arizona" is not supported and does not provide any basis for how Elliott purportedly "was aware" of such information.
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CONCLUSION
¶10 The superior court's order dismissing Reward Card's complaint for lack of personal jurisdiction is affirmed.
________________
SAMUEL A. THUMMA, Presiding Judge
CONCURRING: ________________
MICHAEL J. BROWN, Judge
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DIANE M. JOHNSEN, Judge