Cardinale v. Thueringer

• Court: District Court, D. Arizona
• Decided: August 10, 2023
• Docket: 2:22-cv-01743
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Nickolas Cardinale, No. CV-22-01743-PHX-DJH

10 Plaintiff, ORDER

11 v.

12 Shea Thueringer, et al.,

13 Defendants. 14 15 Defendants Shea Theuringer (“Theuringer”), Selluxe Group (“Selluxe”), and Brian 16 Tollefson (“Tollefson”) (collectively, “Defendants”) have filed a Motion to Dismiss 17 Plaintiff Nickolas Cardinale’s (“Plaintiff”) Complaint (Doc. 7).1 Defendants seek to 18 dismiss this matter under Federal Rule of Civil Procedure 12(b)(2), arguing this Court lacks 19 specific personal jurisdiction over them. (Id.) Defendants further argue Plaintiff’s claims 20 should be dismissed under Rule 12(b)(6)2 because Plaintiff failed to plead sufficient factual 21 allegations for plausible claims. (Id.) 22 The Court must now decide whether Defendants have sufficient contacts with 23 Arizona to establish specific personal jurisdiction. They do not. The Court grants 24 Defendants’ Motion to Dismiss. 25 / / / 26 1 The Motion is fully briefed. (Docs. 16; 23). 27 2 Unless where otherwise noted, all Rule references are to the Federal Rules of Civil 28 Procedure. 1 I. Background3 2 The Court will recount the parties, the sale at issue, and the five Counts in Plaintiff’s 3 Complaint. 4 A. The Parties 5 Plaintiff is an Arizona resident. (Doc. 1-3 at ¶ 1). Thueringer is a Nevada resident. 6 (Id. at ¶ 2). Selluxe is a Florida limited liability company nationally recognized for 7 restoring classic cars. (Id. at ¶¶ 3, 15). Tollefson is a Florida resident who is the sole 8 member of Selluxe and manages the company. (Id. at ¶ 4). Tollefson assists customers 9 with selling classic cars for a fee. (Id. at ¶ 15). Defendant Raul Maribel (“Maribel”) is a 10 Nevada resident.4 (Id. at ¶ 5). 11 B. Sale of the Lincoln Continental 12 This case concerns the sale of Theuringer’s 1965 Lincoln Continental convertible 13 (“the Lincoln”). (Id. at ¶ 8-10). Theuringer asked his mechanic, Maribel, to market the 14 Lincoln for sale on Theuringer’s behalf. (Id. at ¶¶ 10, 33). 15 Maribel subsequently posted the Lincoln for sale on a social media site. (Id. at ¶ 16). 16 Tollefson saw the listing and contacted Maribel, suggesting that Maribel should sell the 17 Lincoln through Tollefson’s company, Sulluxe, because Sulluxe’s reputation would help 18 garner a higher sale price. (Id.) Maribel agreed to Tollefson’s proposal. (Id. at ¶ 17). 19 Tollefson then listed the Lincoln for sale by auction on eBay in mid-January 2022 using 20 Sulluxe’s eBay account. (Id. at ¶ 19). Theuringer knew and approved of Maribel selling 21 the Lincoln through Selluxe. (Id. at ¶ 20). 22 Plaintiff placed a bid on the Lincoln during the eBay auction, but he was not the 23 highest bidder. (Id. at ¶ 21). After the auction, Tollefson contacted Plaintiff to see if he 24 was still interested in the Lincoln, informing Plaintiff the higher bidder had backed out. 25 3 Unless otherwise noted, these facts are taken from Plaintiff’s Complaint (Doc. 1-3). The 26 Court will assume the Complaint’s factual allegations are true, as it must in evaluating a motion to dismiss. See Lee v. City of L.A., 250 F.3d 668, 679 (9th Cir. 2001). 27 4 Maribel has not filed an appearance in this action and the Clerk of Court entered default 28 under Rule 55(a) against him on December 15, 2022. (Doc. 22). 1 (Id.) Plaintiff indicated he was still interested and offered $100,000 for the Lincoln. (Id.) 2 Tollefson communicated Plaintiff’s offer to Maribel, who accepted it. (Id. at ¶ 22). 3 Plaintiff then wired the $100,000 to Maribel’s account. (Id. at ¶ 23). Plaintiff 4 arranged for a vehicle transportation carrier to pick up the Lincoln in Nevada, but Maribel 5 stopped responding. (Id. at ¶ 24). Maribel never delivered the Lincoln to Plaintiff. (Id. at 6 ¶ 24). Maribel also did not remit the payment to Theuringer. (Id. at ¶ 25). Theuringer also 7 did not deliver the Lincoln. (Id. at ¶ 26). 8 C. Plaintiff’s Complaint 9 Plaintiff filed a Complaint against Defendants alleging five counts: Count I for 10 Consumer Fraud under A.R.S. § 44-1522(A) (Id. at ¶¶ 27–31); Count II for negligence 11 (Id. at ¶¶ 32–46); Count III for vicarious liability (Id. at ¶¶ 37–40); Count IV for breach of 12 contract (Id. at ¶¶ 40–46); and Count V for negligent misrepresentation (Id. at ¶¶ 47–60). 13 Defendants seek to dismiss this matter under Rule 12(b)(2), arguing this Court lacks 14 specific personal jurisdiction over them. (Doc. 7). Defendants further argue Plaintiff’s 15 claims should be dismissed under Rule 12(b)(6) because Plaintiff failed to plead sufficient 16 factual allegations for plausible claims. 17 II. Legal Standard 18 A plaintiff bears the burden of establishing personal jurisdiction over all defendants. 19 Ziegler v. Indian River County, 64 F.3d 470, 473 (9th Cir. 1995) (citing Farmers Ins. Exch. 20 v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990)). A defendant may 21 move to dismiss a complaint for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). 22 When a defendant does so, “the plaintiff is obligated to come forward with facts, by 23 affidavit or otherwise, supporting personal jurisdiction.” Cummings v. W. Trial Lawyers 24 Assoc., 133 F. Supp. 2d. 1144, 1151 (D. Ariz. 2001). Where the motion is based on written 25 materials, “the plaintiff need only make a prima facie showing of jurisdictional facts.” Sher 26 v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990). In determining whether the plaintiff has 27 met this burden, “conflicts between the facts contained in the parties’ affidavits must be 28 resolved in [the plaintiff’s] favor for purposes of deciding whether a prima facie case for 1 personal jurisdiction exists.” AT&T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 2 (9th Cir. 1996). 3 “Where . . . there is no applicable federal statute governing personal jurisdiction, the 4 district court applies the law of the state in which the district court sits.” Dole Food Co. v. 5 Watts, 303 F.3d 1104, 1110 (9th Cir. 2002). Arizona exerts personal jurisdiction to the 6 “maximum extent permitted by the Arizona Constitution and the United States 7 Constitution.” Ariz. R. Civ. P. 4.2(a); see also A. Uberti and C. v. Leonardo, 892 P.2d 8 1354, 1358 (Ariz. 1995). Therefore, the analysis of personal jurisdiction under Arizona 9 law and federal law are the same. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 10 797, 800–01 (9th Cir. 2004). Under the Due Process Clause, “[a]lthough a nonresident’s 11 physical presence within the territorial jurisdiction of the court is not required, the 12 nonresident generally must have certain minimum contacts . . . such that the maintenance 13 of the suit does not offend traditional notions of fair play and substantial justice.” Walden 14 v. Fiore, 571 U.S. 277, 283 (2014) (internal citations omitted). 15 A court may assert general or specific jurisdiction over the nonresident defendant. 16 Cybersell v. Cybersell, 130 F.3d 414, 416 (9th Cir. 1997). General jurisdiction exists when 17 the defendant has “continuous and systematic” contacts with the forum state, whereas 18 specific jurisdiction exists when the controversy arises from or is related to the defendant’s 19 specific contact with the forum state. See Helicopteros Nacionales de Colombia v. Hall, 20 466 U.S. 408, 414 (1984). The “mere fact that [a defendant’s] conduct affected plaintiffs 21 with connections to the forum State does not suffice to authorize jurisdiction.” Walden, 22 571 U.S. at 291. Where neither general nor specific jurisdiction exists, the court must 23 dismiss the defendant under Rule 12(b)(2). 24 III. Discussion 25 The Court will first consider whether Plaintiff has made a prima facie showing that 26 this Court has specific jurisdiction over Defendants.5 27 / / / 28 5 The parties agree that general jurisdiction is not at issue. (Doc. 7 at 4; Doc. 16 at 5). 1 A. Specific Jurisdiction 2 Defendants Tollefson and Selluxe argue Plaintiff has not made a prima facie 3 showing that Defendants have availed themselves of the Arizona forum, arguing that they 4 performed one transaction via the internet to purchase a car from a person who lived in 5 Arizona. (Doc. 7 at 13). Plaintiff argues Defendants reached into Arizona to solicit 6 Plaintiff for the sale and targeted him via telephone calls and text messages. (Doc. 16 at 6). 7 Specific jurisdiction requires that courts ensure that the defendant has “minimum 8 contacts” with a forum to ensure that litigating in the jurisdiction “does not offend 9 ‘traditional notions of fair play and substantial justice.’” Axiom Foods, Inc. v. Acerchem 10 Int’l, Inc., 874 F.3d 1064, 1068 (9th Cir. 2017) (quoting Int’l Shoe Co. v. Washington, 326 11 U.S. 310, 316 (1945)). “The crux of the inquiry is the defendant’s contact with the forum 12 and not the defendant’s contacts with the plaintiff.” Walden, 571 U.S. at 284. To determine 13 whether specific personal jurisdiction has been established, courts in the Ninth Circuit 14 apply a three-prong “minimum contacts” test: 15 (1) the non-resident defendant must purposefully direct his activities or 16 consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of 17 conducting activities in the forum, thereby invoking the benefits and 18 protections of its laws; 19 (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and 20 21 (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. 22 23 Morrill v. Scott Fin. Corp., 873 F.3d 1136, 1142 (9th Cir. 2017). This test looks to the 24 defendant’s contacts with the forum state itself, not the defendant’s contacts with persons 25 who reside there. Burger King, 471 U.S. at 475. The “unilateral activity of another party 26 or a third person is not an appropriate consideration when determining whether a defendant 27 has sufficient contacts with a forum State to justify an assertion of jurisdiction.” 28 Helicopteros Nacionales, 466 U.S. at 417. The Court must “reject[] attempts to satisfy the 1 defendant-focused ‘minimum contacts’ inquiry by demonstrating contacts between the 2 plaintiff (or third parties) and the forum State.” Walden, 571 U.S. at 284. 3 A plaintiff must satisfy the first two prongs to establish personal jurisdiction. Id. 4 “If the plaintiff succeeds in satisfying both of the first two prongs, the burden then shifts to 5 the defendant to ‘present a compelling case’ that the exercise of jurisdiction would not be 6 reasonable.” Burger King, 471 U.S. at 476–78. If one of the first two prongs is not met, 7 the inquiry ends there, and the case must be dismissed. Id. 8 1. Prong one: Purposeful Availment and Direction 9 To determine the first prong of the minimum contacts test, the Ninth Circuit has 10 established separate inquiries depending on whether the nature of the claims at issue arise 11 from a contract or alleged tortious conduct. See Morrill, 873 F.3d at 1142. (“We generally 12 apply the purposeful availment test when the underlying claims arise from a contract, and 13 the purposeful direction test when they arise from alleged tortious conduct.”). The Court 14 will apply both tests because Plaintiff’s Complaint alleges contract and tortious conduct 15 claims. (Doc. 1-3). 16 a. Defendant Tollefson and Selluxe6 17 Plaintiff’s Complaint alleges a breach of contract claim against Selluxe for its failure 18 to deliver the Lincoln to Plaintiff in exchange for payment of the purchase price. (Doc. 1- 19 3 at ¶ 44). Plaintiff’s Complaint also alleges a negligent misrepresentation claim against 20 Tollefson because of his representation that he was acting on behalf of a “client.” (Doc. 1- 21 3 at ¶ 49). The Court will begin with the “purposeful availment” inquiry to determine 22 whether the first prong of the minimum contacts test is met. Id. The United States Supreme 23 Court has defined purposeful availment as: 24 where the defendant deliberately has engaged in significant activities within 25 a State, or has created continuing obligations between himself and residents of the forum, he manifestly has availed himself of the privilege of conducting 26 business there, and because his activities are shielded by the benefits and 27 protections of the forum’s laws it is presumptively not unreasonable to

28 6 The Court will analyze Defendant Tollefson and Sulluxe together because Tollefson owns Selluxe. (Doc. 1-3 at ¶¶ 3, 15). 1 require him to submit to the burdens of litigation in that forum as well. 2 Id. at 1149 (quoting Burger King Corp., 471 U.S. at 475–76). 3 The purposeful availment analysis in breach of contract cases requires a “qualitative 4 evaluation of the defendant’s contact with the forum state.” Harris Rutsky & Co. Ins. Servs. 5 v. Bell & Clements Ltd., 328 F.3d 1122, 1130 (9th Cir. 2003). “As the Supreme Court has 6 expressly cautioned, a contract alone does not automatically establish minimum contacts 7 in the plaintiff’s home forum.” Boschetto v. Hansing, 539 F.3d 1011, 1017 (9th Cir. 2008). 8 Rather, there must be “actions by the defendant himself that create a ‘substantial 9 connection’ with the forum State.” Picot v. Weston, 780 F.3d 1206, 1212 (9th Cir. 2015) 10 (quoting Burger King, 471 U.S. at 475). In other words, a nonresident defendant must have 11 “engaged in significant activities within a State” or “created continuing obligations” 12 between himself and residents of the forum. Burger King, 471 U.S. at 475. In determining 13 whether such contacts exist, courts are to consider “prior negotiations and contemplated 14 future consequences, along with the terms of the contract and the parties’ actual course of 15 dealing.” Id. “Merely random, fortuitous, or attenuated contacts are not sufficient.” Id. 16 (internal quotation marks omitted). 17 Plaintiff fails to meet the first prong of the specific jurisdiction test because “the 18 lone transaction for the sale of one item does not establish that the [d]efendants 19 purposefully availed themselves of the privilege of doing business in [Arizona].” 20 Boschetto v. Hansing, 539 F.3d 1011, 1017 (9th Cir. 2008) (holding that a single eBay sale 21 to a California resident did not give rise to personal jurisdiction). Plaintiff argues this case 22 is distinguishable from Boschetto because Tollefson targeted Plaintiff for the sale of the 23 Lincoln while the defendant in Boschetto was a random purchaser. (Doc. 16 at 9). It is 24 true that Tollefson contacted Plaintiff after the highest bidder pulled out of the sale. (Doc. 25 1-3 at ¶ 21). However, Tollefson’s phone call and text messages alone are insufficient to 26 show Tollefson was availing himself of the privileges of Arizona law. Indeed, the second 27 highest bidder could have been from anywhere in the United States. And the Ninth Circuit 28 has made clear that a “fleeting” business relationship with a “center of gravity lay[ing] 1 elsewhere,” is insufficient to confer specific personal jurisdiction. Glob. Commodities 2 Trading Grp., Inc. v. Beneficio de Arroz Choloma, S.A., 972 F.3d 1101, 1107 (9th Cir. 3 2020) (finding sufficient contacts existed to exercise personal jurisdiction where the 4 defendant had ongoing payment obligations in California, evincing a sustained 5 relationship) (emphasis added). Nothing indicates Tollefson had a sustained relationship 6 to Arizona or that Arizona was the “center of gravity” for this sale. Id. To the contrary, 7 Plaintiff wired his payment to Maribel’s account in Nevada. (Docs. 1-3 at ¶ 23; 16-1 at 3, 8 ¶ 8). Plaintiff arranged a vehicle transportation carrier to pick up the Lincoln in Nevada. 9 (Doc. 1-3 at ¶ 24). And Plaintiff offers no formal contract with ongoing obligations to 10 Arizona beyond Tollefson’s limited call and texts. 11 Plaintiff further argues that even a “single act” by the Defendants can support 12 jurisdiction.7 (Doc. 16 at 10, citing Burger King, 471 U.S. at 476 n.18 (quoting McGee v. 13 Int’l Life Ins. Co., 355 U.S. 220, 223 (1957))). While that proposition may be true, the 14 “single act” must create a “substantial connection” with the forum to be sufficient for 15 personal jurisdiction purposes. For example, in McGee, “the Court did not decide the 16 jurisdictional issue on a quantitative assessment of the number of contracts the defendant 17 had entered into in the forum state; rather, it looked to the content or qualitative nature of 18 the contract before it, and reasoned that the contract gave rise to ongoing obligations that 19 connected the defendant with the forum state.” Boschetto, 539 F.3d at 1017 n.3. Here, 20 there is no evidence that Tollefson traveled to Arizona or engaged in other transactions 21 with Arizona residents either through eBay or otherwise. Therefore, the contract did not 22 create any “substantial connection” between Plaintiff and Tollefson beyond the contract 23 itself. McGee, 355 U.S. at 223. 24 Plaintiff attempts to counter by noting that Tollefson sought a continuing parts- 25 supply relationship with Plaintiff when Tollefson texted, after the sale, “if for whatever

26 7 Plaintiff cites to out-of-circuit cases to support the proposition that a single act can create a substantial connection with the forum. (Doc. 16 at 10-12 citing Ricker v. Mercedes-Benz 27 of Georgetown, 191 N.E.3d 1179 (Ohio Ct. App. 2022); Advanced Sols. Life Scis., LLC v. BioBots, Inc., 2017 WL 2114969, at *6 (W.D. Ky.); see also KSTP-FM, LLC v. Specialized 28 Comm’n, Inc., 602 N.W.2d 919, 924 (Minn. Ct. App. 1999)). These cases are neither binding nor persuasive under these facts. 1 reason you need some odds and Lincoln parts, I got you covered[.]” (Doc. 16-1 at 10). 2 This text led to a separate transaction for a hood emblem. (Id. at 11). But Plaintiff’s 3 argument is misplaced. It is not the number of contracts, but rather the quality and nature 4 of Tollefson’s contacts in the forum state that determine whether personal jurisdiction 5 exists. See Thomas P. Gonzalez Corp. v. Consejo Nacional De Produccion De Costa Rica, 6 614 F.2d 1247, 1252 (9th Cir. 1980) (noting that “the number of transactions . . . and the 7 amount of money involved do not reflect the quality or nature of the contacts and, therefore, 8 should not be considered”). Rather, the Court must consider Tollefson’s contacts “with 9 the forum state itself, not the defendant’s contacts with persons who reside there.” Burger 10 King, 471 U.S. at 475. To that end, Tollefson does not reside in Arizona, maintain an office 11 or business in Arizona, or own any real property in Arizona. (Doc. 7 at ¶¶ 3–5). Nor does 12 Selluxe maintain a principal place of business in Arizona or have any employees or offices 13 in Arizona. (Id. at ¶¶ 7–9). 14 In sum, Tollefson’s phone call and text messages to Plaintiff about the sale of the 15 Lincoln do not constitute sufficient minimum contacts with Arizona such that Tollefson 16 could have reasonably anticipated being haled into court in Arizona. See Gray Co. v. 17 Firstenberg Mach. Co., 913 F.2d 758, 760 (9th Cir. 1990) (quoting Burger King, 471 U.S. 18 at 475–76) (“A defendant has purposely availed himself of the benefits of a forum if he has 19 deliberately ‘engaged in significant activities within a State or has created continuing 20 obligations between himself and the residents of the forum.’”). Plaintiff does not allege 21 Tollefson conducts regular sales in Arizona or allege any other obligations to the forum 22 state. The Court accordingly finds “this was a one-time for the sale of a good that involved 23 the forum state only because that is where the purchaser happened to reside, but otherwise 24 created no ‘substantial connection’ or ongoing obligations there.” Boschetto, 539 F.3d at 25 1019. 26 Plaintiff’s Complaint also alleges a negligent misrepresentation claim against 27 Tollefson because of his representation that he was acting on behalf of a “client.” (Doc. 1- 28 3 at ¶ 49). In intentional tort cases, “a forum State’s exercise of jurisdiction over an out- 1 of-state intentional tortfeasor must be based on intentional conduct by the defendant that 2 creates the necessary contacts with the forum.” Axiom Foods, 874 F.3d at 1068. The 3 purposeful direction test requires that a defendant: “(1) committed an intentional act, (2) 4 expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to 5 be suffered in the forum state.” Id. at 1069 (citation omitted). 6 Even assuming Tollefson’s phone call with Plaintiff satisfies the first element, 7 Plaintiff has not established the second element because Tollefson did not target Arizona 8 in any of his conduct. In other words, the Court cannot assume that Tollefson intentionally 9 targeted Arizona simply because Tollefson called the second highest bidder who happened 10 to reside in Arizona. See Schwarzenegger, 374 F.3d at 807 (holding that jurisdiction exists 11 where a defendant intentionally targets his harmful conduct—not necessarily where a 12 plaintiff resides); see also Burger King, 471 U.S. at 474 (holding that express aim requires 13 “reasonabl[e] anticipat[ion] [of] being haled into court” in that forum). Without targeting 14 the state of Arizona, Tollefson could not have foreseen litigation there based on a phone 15 call and some text messages with an Arizona resident. Plaintiff has therefore failed to make 16 a prima facie showing that Tollefson’s conduct was expressly aimed at Arizona, and he 17 fails to satisfy the second element of the purposeful direction test. 18 For these reasons, Plaintiff has failed to meet his burden under prong one of the 19 minimum contacts test and the Court must dismiss Tollefson and Selluxe from this case for 20 lack of personal jurisdiction. 21 b. Defendant Thueringer 22 Count Two and Three of Plaintiff’s Complaint allege a negligence claim and a 23 vicarious liability claim against Thueringer for his selection and subsequent failure to 24 supervise or otherwise control Maribel as his agent. (Doc. 1-3 at ¶ 32–40). Plaintiff argues 25 Thueringer is subject to personal jurisdiction in Arizona based on the conduct of his two 26 sales agents, Maribel and Selluxe. (Doc. 16 at 13–14). Thueringer argues neither Maribel 27 nor Selluxe were his agents because they did not have actual or apparent authority to 28 engage in business on his behalf. (Doc. 23 at 4). 1 Even if Maribel and Selluxe were acting as Thueringer’s agents, the record shows 2 Thueringer does not have sufficient minimum contacts to have created a “substantial 3 connection” with Arizona. Boschetto, 539 at 1017. This is because the “unilateral activity 4 of another party or a third person is not an appropriate consideration when determining 5 whether a defendant has sufficient contacts with a forum State to justify an assertion of 6 jurisdiction.” Helicopteros Nacionales, 466 U.S. at 417. 7 Apart from arguing Thueringer is subject to personal jurisdiction because of Maribel 8 and Selluxe’s conduct, Plaintiff raises no further arguments. (Doc. 16 at 13–14). And 9 there are no facts showing Thueringer engaged in “significant activities” within Arizona or 10 otherwise created “continuing obligations” with forum residents such that he invoked the 11 benefits and protections of the Arizona’s laws. Gray, 913 F.2d at 760. Indeed, Thueringer 12 neither resides nor conducts business in Arizona. (Doc. 7 at 21 ¶¶ 3, 4). His Lincoln was 13 also not registered or located in Arizona. (Id. at 6, 7). Even more, Plaintiff only identified 14 Thueringer as the true owner of the Lincoln after the sale took place and the Lincoln was 15 not delivered. (Doc. 16-1 at ¶ 9). Until that point, they had no contact. (Id.) Therefore, 16 Plaintiff has likewise failed to make a prima facie showing of purposeful availment or 17 purposeful direction on the part of Thueringer, and the Court must dismiss him from this 18 case for lack of personal jurisdiction. 19 c. Defendant Maribel 20 Although Maribel is not a moving party to Defendants’ Motion, the Court “has an 21 affirmative duty to look into its jurisdiction over both the subject matter and the parties.” 22 In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999) (internal citation omitted). Plaintiff’s 23 Complaint alleges a consumer fraud violation under A.R.S. § 44-1522(A) against Maribel 24 for his “deception of inducing [Plaintiff] to pay $100,000 for the Lincoln that would never 25 be delivered . . . .” (Doc. 1-3 at ¶ 29). 26 As discussed, in intentional tort cases, “a forum State’s exercise of jurisdiction over 27 an out-of-state intentional tortfeasor must be based on intentional conduct by the defendant 28 that creates the necessary contacts with the forum.” Axiom Foods, 874 F.3d at 1068. The 1 purposeful direction test requires that Maribel: “(1) committed an intentional act, (2) 2 expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to 3 be suffered in the forum state.” Id. at 1069 (citation omitted). Even assuming Maribel’s 4 acceptance of Plaintiff’s payment satisfies the first element, Plaintiff has not established 5 the second element because, like Tollefson, Maribel did not target Arizona in any of his 6 conduct. See Schwarzenegger, 374 F.3d at 807 (holding that jurisdiction exists where a 7 defendant intentionally targets his harmful conduct—not necessarily where a plaintiff 8 resides). Plaintiff’s Complaint alleges no interactions between Maribel and Plaintiff apart 9 from Plaintiff wiring his payment to him. (Doc. 1-3 at ¶ 23). Nor does Plaintiff allege 10 Maribel conducts regular sales in Arizona or allege any other obligations to the forum state. 11 Plaintiff has therefore failed to make a prima facie showing that Maribel’s conduct was 12 expressly aimed at Arizona, and he fails to satisfy the second element of the purposeful 13 direction test. 14 Accordingly, Plaintiff has failed to meet his burden under prong one of the 15 minimum contacts test and the Court must dismiss Maribel from this case for lack of 16 personal jurisdiction. 17 IV. Conclusion 18 Because Plaintiff has failed to carry his burden on the first prong, the Court need 19 not consider the remaining prongs. Burger King, 471 U.S. at 476–78. The Court finds that 20 it lacks personal jurisdiction over Defendants. 21 Accordingly, 22 IT IS HEREBY ORDERED that Defendant Shea Theuringer, Selluxe Group, and 23 Brian Tollefson’s Motion to Dismiss (Doc. 7) is granted. This matter shall be dismissed 24 and the recently filed Joint Motion to Amend Schdeduling Order (Doc. 28) denied as moot. 25 / / / 26 / / / 27 / / / 28 / / / 1 IT IS FURTHER ORDERED that the Clerk of the Court shall terminate this matter. 3 Dated this 10th day of August, 2023. 4 5 Do we □ 6 norable'Diang/4. Huretewa 7 United States District Fudge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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