Davis v. Metro Productions, Inc.

885 F.2d 515, 1989 WL 99778
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 31, 1989
DocketNos. 87-2739, 87-2741
StatusPublished
Cited by50 cases

This text of 885 F.2d 515 (Davis v. Metro Productions, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. Metro Productions, Inc., 885 F.2d 515, 1989 WL 99778 (9th Cir. 1989).

Opinion

GOODWIN, Chief Judge:

A disappointed purchaser of a tax shelter later held by the Internal Revenue Service to be defective sued for treble damages under the Arizona Racketeering Act, alleging fraud and unlawful securities transactions. The plaintiff, Dale C. Davis, had purchased the tax shelter from Metro Productions, Inc. (“Metro”), a California corporation. He sued Metro, but also sued Ralph Smith and Michael L. Miller, the sole stockholders of Metro, personally for their activities in the transaction. The trial court asserted long-arm jurisdiction over the corporation and the individual defendants, and, applying Arizona law, entered judgment against them. Defendant Metro does not appeal, but defendants Smith and Miller appeal, contending that the exercise of jurisdiction over them as individuals violated due process. We affirm.

I. FACTS

A. Metro Productions, Inc.

Appellants Smith and Miller were at all times the sole shareholders and officers of Metro, a California corporation incorporated in 1977. Neither appellant was nor is a resident of Arizona, nor has a place of business within Arizona.

From 1977 to 1978, Metro produced nearly 1,000 thirty-minute television episodes in several series. The series covered topics such as sewing, cooking, diet and health, religious singing, and game shows, and were said to be intended for distribution to [517]*517cable companies and the like. Each half-hour show was sold as a tax shelter through Producer’s Liaison Corporation (“Producer’s”), Metro’s wholly owned subsidiary and marketing arm, or by outside commissioned salesmen, to investors throughout the United States.

The shows were produced as videotapes. Metro edited each master videotape purchased by an investor and copyrighted it in the investor’s name. The master videotape was placed in storage in the investor’s name, and each investor paid an annual rental fee through the videotape distributor chosen by the investor to manage his show or shows.

B. Information Memorandum

Metro and its marketing agents used an information memorandum prepared by Metro in their solicitations of master videotape sales. The information memorandum contained background material regarding Metro and its producers, clippings showing the possible markets for videotapes, and schedules summarizing the tax savings opportunities alleged to be available from depreciation and investment tax credit, even if no income were to be realized from the investment. The package also contained a tax opinion letter written by Metro’s law firm. In the memorandum, Metro identified Investor’s Management Services, Inc. (“Investor’s”) as “a Management Services Group specializing in handling the placement and exploitation of video tape masters, which is accessible by telephone.”

C. Production Service Agreement

These so-called shows were sold pursuant to a contract entitled “Production Service Agreement” for a purchase price of $90,000,1 with a $7,000 down payment, and a promissory note for $83,000. The note called for 7% annual interest with full recourse against the purchaser. A minimum annual payment of $2,000, to be applied against interest only, was to be made for five years. At the end of that period, the investor could extend the five-year period, or, for a payment of an additional $1,000, convert the note to nonrecourse.

Other than the minimum annual payment, the only other mandatory payments of principal and the accrued, but unpaid, interest, were to be made out of the revenues derived from marketing the individual television segments by the investor.

In the Production Service Agreement, the buyer was informed that “it will be necessary for you to take the initiative to engage a Management Services Group, which will act as your Agent to obtain a Distributor to market your television video tapes.” The buyer was reminded that he “must engage in efforts to produce income from the programs ... to utilize certain possible tax incentives.”

D.Davis’s Involvement

During 1979, Dale C. Davis, D.D.S., an Arizona resident, introduced his accountant, James Allen, to Duane McCleary, who sold Metro’s Production Service Agreements on a commission basis. McCleary was not licensed as a securities salesman. Allen was invited to accompany McCleary and to travel from Arizona, where he was a resident, to Los Angeles, for the purpose of meeting with Smith, and Miller, the principals of Metro. During the meeting, Allen was advised that Investor’s was available to market the videotapes on behalf of purchasers of Production Service Agreements, and that McCleary would pay Allen a fee for each client of Allen’s who purchased a Production Service Agreement.

Shortly thereafter, Davis purchased from Metro, through Allen in Arizona, one epi-i sode of the “Sam Diego Show.” He entered into the Production Services Agreement and engaged Investor’s as his management agent. Thereafter, the Internal Revenue Service determined that the investment was an abusive tax shelter and disallowed the tax benefits.

II. PRIOR PROCEEDINGS

Davis first brought suit in Arizona Superior Court under the Arizona Racketeering [518]*518Act, Ariz.Rev.Stat.Ann. [hereinafter ARS] § 13-2301 et seq. (Supp.1988), against defendants Smith and Miller, appellants here, Metro, and Producer’s. He contended that defendants’ sale to him, as a tax shelter, of a master videotape constituted an investment contract and therefore a security. Because the alleged security concededly was not registered and was sold by unlicensed salesmen, he alleged defendants had committed a securities violation, a predicate act under the Arizona Racketeering Act. Id. § 13-2301(D)(4)(s). Davis also alleged that the defendants had committed securities fraud, which is another predicate act. Id. § 13-2301(D)(4)(s). Alternatively, Davis alleged that if the tax shelter investment was not a security, -then the Metro program constituted a scheme or artifice to defraud under A.R.S. § 13-2301(D)(4)(t). The suit was brought against the backdrop of three cases heard in the Arizona court system, involving the same scheme, and against the same defendants.2

Defendants removed the suit to United States District Court for the District of Arizona on the basis of diversity of citizenship. They made a Rule 12(b)(2), Fed.R.Civ.P., motion to dismiss based on lack of in personam jurisdiction. The denial of that motion presents the principal issue on appeal.

While the case was pending in the district court, the Arizona Court of Appeals handed down its decision in Wetzel v. Arizona State Real Estate Dep’t, 151 Ariz. 330, 727 P.2d 825 (App.1986), cert. denied, 482 U.S. 914, 107 S.Ct. 3186, 96 L.Ed.2d 674 (1987). That decision approved the offensive use of nonmutual collateral estoppel. Citing Wetzel, Davis moved for summary judgment, but his motion was denied.

The case was set for trial. The district judge informed the parties by letter that he considered the matter of personal jurisdiction to have been decided on the Rule 12(b)(2) motion, and that it would not be an issue at trial.

At the trial to the bench, Davis renewed his summary judgment motion.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

LeDoux v. Outliers Inc
W.D. Washington, 2025
Parker v. Cassin
D. Maryland, 2024
Parker v. Cartwright
D. Maryland, 2024
Rosemore v. Burns
D. Nevada, 2021
Serenium, Inc. v. Zhou
N.D. California, 2020
Neumont University, LLC v. Nickles
304 F.R.D. 594 (D. Nevada, 2015)
Defense Training Systems v. International Charter Inc.
30 F. Supp. 3d 867 (D. Alaska, 2014)
Nucal Foods, Inc. v. Quality Egg LLC
887 F. Supp. 2d 977 (E.D. California, 2012)
Consipio Holding, BV v. Carlberg
282 P.3d 751 (Nevada Supreme Court, 2012)
27001 Partnership v. Kohlberg Kravis Roberts & Co.
78 So. 3d 959 (Supreme Court of Alabama, 2011)
Marlyn Nutraceuticals, Inc. v. Improvita Health Products
663 F. Supp. 2d 841 (D. Arizona, 2009)
Allstar Marketing Group, LLC v. Your Store Online, LLC
666 F. Supp. 2d 1109 (C.D. California, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
885 F.2d 515, 1989 WL 99778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-metro-productions-inc-ca9-1989.