1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 Jeni Hurrle, as Guardian of and next kin of No. CV-23-02372-PHX-DGC L.A.H., a minor, and as Special 11 ORDER Administrator of the Estate of Valerie
12 “Elise” Hurrle, deceased, 13 Plaintiff, v. 14 Taurus International Manufacturing, Inc.; 15 and Taurus Holdings, Inc., 16 Defendants. 17 18 19 Plaintiff Jeni Hurrle, on behalf of the estate of her deceased sister, Valerie Elise 20 Hurrle (“Elise”), and Elise’s minor child, L.A.H., has filed a complaint against 21 Defendants Taurus International Manufacturing, Inc. (“TIMI”) and Taurus Holdings, Inc. 22 (“Holdings”). Doc. 1. Pursuant to Federal Rule of Civil Procedure 12(b)(6), TIMI has 23 filed a motion to dismiss certain counts for failure to state a claim for relief. Doc. 12. 24 Pursuant to Rule 12(b)(2) and (6), Holdings has filed a motion to dismiss for lack of 25 personal jurisdiction and for failure to state a claim for relief. Doc. 14. The motions are 26 fully briefed and no party requests oral argument. For reasons stated below, the Court 27 will grant in part and deny in part TIMI’s motion and grant Holdings’ motion with 28 respect to the lack of personal jurisdiction. 1 I. Background. 2 Plaintiff’s complaint contains the following allegations. Elise worked as a cashier 3 at a convenience store in Mesa, Arizona. Doc. 1 ¶ 17. She carried a Taurus GX4 pistol, 4 serial number 1GA67361 (“the pistol”), for personal protection. Id. ¶ 6, 16. Enrique 5 Jaramillo was the original purchaser of the pistol. Id. ¶ 7, 16. He bought the pistol new 6 from Sportsman’s Warehouse on or about February 1, 2022. Id. 7 During a work shift on April 7, 2023, Elise accidentally dropped the pistol, in its 8 holster, while attempting to attach the holster to her waistband. Id. ¶ 17. The pistol fired 9 when it hit the ground, and the bullet struck Elise in the neck, causing her death. Id. ¶¶ 6, 10 17-18. The pistol fired unintentionally due to a “drop-fire” safety defect in which the 11 trigger moves rearward when the pistol is dropped or subjected to an impact. Id. ¶¶ 6, 9. 12 The complaint alleges ten claims: negligence (count one); breach of express 13 warranty and implied warranty of merchantability (counts two and three); strict liability 14 manufacturing defect, design defect, and failure to warn (counts four, five, and six); 15 negligent misrepresentation (count seven); and vicarious liability under actual agency, 16 apparent agency, and joint venture theories (counts eight, nine, and ten). Id. ¶¶ 21-79. In 17 what appears to be an unnumbered count, the complaint alleges that TIMI and Holdings’ 18 conduct combined and concurred to cause Elise’s death. Id. at 22, ¶ 80. 19 II. TIMI’s Motion to Dismiss for Failure to State a Claim for Relief. 20 A. Rule 12(b)(6) Standard. 21 Rule 12(b)(6) allows a defendant to challenge the factual and legal sufficiency of a 22 claim before discovery. A complaint that pleads a cognizable legal theory will survive 23 Rule 12(b)(6) review if it contains “sufficient factual matter, accepted as true, to ‘state a 24 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 25 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). A claim has facial 26 plausibility when “the plaintiff pleads factual content that allows the court to draw the 27 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing 28 Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability 1 requirement,’ but it asks for more than a sheer possibility that a defendant has acted 2 unlawfully.” Id.; see Twombly, 550 U.S. at 555 (surviving a Rule 12(b)(6) motion 3 “requires more than labels and conclusions, and a formulaic recitation of the elements of 4 a cause of action will not do.”). 5 B. Discussion. 6 TIMI moves to dismiss the breach of express and implied warranty claims in 7 counts two and three, the negligent misrepresentation claim in count seven, the vicarious 8 liability claims in counts eight, nine, and ten, and the unnumbered count for “combining 9 and concurring conduct.” Doc. 12. 10 1. Breach of Warranty (Counts Two and Three). 11 TIMI contends that the breach of warranty claims should be dismissed for lack of 12 privity and by the terms of the limited warranty. Id. at 6-7. Specifically, TIMI argues 13 that the warranty claims fail because there is no contractual privity between TIMI and 14 Mr. Jaramillo, who purchased the pistol from Sportsman’s Warehouse, or TIMI and 15 Elise, who obtained the pistol secondhand from Mr. Jaramillo. Id. (citing Flory v. 16 Silvercrest Indus., Inc., 633 P.2d 383, 387 (Ariz. 1981) (holding that lack of privity in the 17 chain of distribution precluded recovery on breach of express and implied warranty 18 claims); Yee v. Nat’l Gypsum Co., No. CV-09-8189-PHX-DGC, 2010 WL 2572976, at *2 19 (D. Ariz. June 22, 2010) (dismissing implied warranty claim against a manufacturer 20 where the consumer purchased the product from an independent retailer)). TIMI further 21 argues that the express warranty claim fails because the warranty is limited by its terms to 22 the original purchaser. Id. at 7 (citing Chaurasia v. Gen. Motors Corp., 126 P.3d 165, 23 169 (Ariz. Ct. App. 2006) (holding that there is no cause of action for breach of a limited 24 warranty unless the consumer shows that the manufacturer did not comply with the 25 warranty’s express terms)). 26 Plaintiff consents to the dismissal of the breach of express warranty claim because 27 the warranty is limited to original purchasers and Elise was not the original purchaser of 28 the pistol. Doc. 17 at 9. Plaintiff also consents to the dismissal of the breach of implied 1 warranty claim, noting that such claims have merged into the doctrine of strict liability 2 under Arizona law. Id. (citing Amaya v. Future Motion Inc., No. CV-21-08243-PCT- 3 MTL, 2022 WL 17976319, at *2 (D. Ariz. Dec. 28, 2022) (“Arizona law provides that 4 ‘the theory of liability under implied warranty has been merged into the doctrine of strict 5 liability.’”) (citation omitted); see also Flory, 633 P.2d at 388 (“In Arizona[,] we have 6 recognized that an action styled as ‘breach of implied warranty’ to recover damages for 7 physical injury to person or property is in essence an action based on strict liability in 8 tort[.]”) (citations omitted). 9 The Court will dismiss the breach of warranty claims asserted in counts two and 10 three. Doc. 1 ¶¶ 27-35. 11 2. Negligent Misrepresentation (Count Seven). 12 Arizona recognizes the tort of negligent misrepresentation, which is defined by 13 Restatement (Second) of Torts § 552: 14 § 552. Information Negligently Supplied for the Guidance of Others 15 (1) One who, in the course of his business, profession or employment, or in 16 any other transaction in which he has a pecuniary interest, supplies false 17 information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable 18 reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. 19 20 (2) [T]he liability stated in Subsection (1) is limited to loss suffered 21 (a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the 22 recipient intends to supply it; and 23 (b) through reliance upon it in a transaction that he intends the 24 information to influence or knows that the recipient so intends or in a substantially similar transaction. 25 26 St. Joseph’s Hosp. & Med. Ctr. v. Reserve Life Ins. Co., 742 P.2d 808, 813 (Ariz. 1987) 27 (quoting Restatement § 552). “Liability for negligent misrepresentation is narrow in 28 scope because it is premised on the reasonable expectations of a foreseeable user of 1 information supplied in connection with commercial transactions.” Id. at 813-14 (citing 2 Restatement § 552 cmt. a). 3 To assert a viable negligent misrepresentation claim, Plaintiff must allege that: 4 (1) Defendants provided Elise with false or incorrect information or failed to disclose 5 material information; (2) Defendants intended, or could reasonably foresee, that Elise 6 would rely on the information and provided it for that purpose; (3) Defendants failed to 7 exercise reasonable care in obtaining or communicating the information; (4) Elise relied 8 on the information; (5) her reliance was justified; and (6) damage resulted. See id.; 9 Richardson v. Wright Med. Tech. Inc., No. CV-21-00594-PHX-SMB, 2021 WL 5998517, 10 at *2 (D. Ariz. Dec. 17, 2021) (citing KB Home Tucson, Inc. v. Charter Oak Fire Ins. 11 Co., 340 P.3d 405, 412 n. 7 (Ariz. Ct. App. 2014)); RAJI (CIVIL) 7th Commercial Torts 12 23 (setting forth the elements of a negligent misrepresentation claim). 13 The parties agree that the negligent misrepresentation claim must meet the 14 heightened pleading standard of Rule 9(b). Docs. 12 at 4, 17 at 4-5; see Richardson, 15 2021 WL 5998517, at *2 (“A claim for negligent misrepresentation must meet the 16 particularity requirements of Rule 9(b).”); Sweeney v. Darricarrere, No. 2:09-CV-00266- 17 JWS, 2009 WL 2132696, at *12 (D. Ariz. July 14, 2009) (“Both fraud and negligent 18 misrepresentation must meet the heightened pleading standard of Rule 9(b).”); Zanelli v. 19 Medtronic, Inc., No. SACV 23-02356-CJC (ADSx), 2024 WL 1841671, at *4 (C.D. Cal. 20 Apr. 19, 2024) (“It is well-established in the Ninth Circuit that both claims for fraud and 21 negligent misrepresentation must meet [Rule] 9(b)’s particularity requirements[.]”) 22 (citations omitted). The complaint therefore “must state the time, place, and specific 23 content of the false representations as well as the identities of the parties to the 24 misrepresentation.” Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 25 1401 (9th Cir. 1986). The complaint must specify “the who, what, when, where, and 26 how” of the alleged misconduct. Vess v. Ciba-Geigy Corp., 317 F.3d 1097, 1106 (9th 27 Cir. 2003). 28 1 TIMI argues that the negligent misrepresentation claim does not specify when or 2 how the alleged misrepresentations were made to Elise. Doc. 12 at 4-5. The Court 3 agrees. 4 The complaint identifies several alleged misrepresentations from the pistol’s 5 manual and limited warranty (see Doc. 1 ¶ 56), but does not allege when or how such 6 statements were made to Elise. Plaintiff asserts that, at a minimum, the statements were 7 made to Elise when Jaramillo “gave Elise her pistol, with the Taurus documentation, in 8 Mesa, Arizona on or about February 2022.” Doc. 17 at 6 (citing Doc. 1 ¶¶ 7, 16). But 9 this factual assertion is not found in the complaint. Paragraphs 7 and 16 concern 10 Jaramillo’s purchase of the pistol, but include no allegation that he gave the pistol and its 11 documentation to Elise. See Doc. 18 at 3. 12 In deciding TIMI’s motion to dismiss, the Court cannot “consider new allegations 13 raised in [Plaintiff’s] response that have no basis in the complaint.” Microsoft Corp. v. 14 Atmel Corp., No. C20-1216JLR, 2021 WL 535126, at *3 (W.D. Wash. Feb. 12, 2021); 15 see Hastings v. BAC Home Loans Servicing, No. CV 12-0051-TUC-JGZ, 2012 WL 16 13019522, at *3 (D. Ariz. June 15, 2012) (“[A] court may not consider contentions 17 alleged for the first time in a response to a motion to dismiss.”); Sobh v. Phoenix Graphix 18 Inc., No. CV-18-04073-PHX-DWL, 2019 WL 3973697, at *3 (D. Ariz. Aug. 22, 2019) 19 (“[I]t is axiomatic that the complaint may not be amended by the briefs in opposition to a 20 motion to dismiss.”) (citation omitted); Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 21 1197 n.1 (9th Cir. 1998) (“In determining the propriety of a Rule 12(b)(6) dismissal, a 22 court may not look beyond the complaint to a plaintiff’s moving papers, such as a 23 memorandum in opposition to a defendant’s motion to dismiss.”). 24 Plaintiff’s complaint “comes up short of what is required to plead a negligent 25 misrepresentation claim with particularity [because it] fails to allege the time, place, [and] 26 method of transmission [of] the misrepresentations.” Richardson, 2021 WL 5998517, at 27 *3; see Murrell v. Wyeth, Inc., No. CV-13-0290-PHX-DGC, 2013 WL 1882193, at *7 28 (D. Ariz. May 3, 2013) (“[I]it is not clear from the complaint which, if any, of the alleged 1 misrepresentations Mrs. Murrell or her doctors saw and relied on, or when and where 2 they did so. Such general allegations are insufficient to state a claim under Rule 9(b).”); 3 Mills v. Bristol-Myers Squibb Co., No. CV 11-00968-PHX-FJM, 2011 WL 4708850, at 4 *4 (D. Ariz. Oct. 7, 2011) (same). 5 The Court will dismiss the negligent misrepresentation claim in count seven. 6 Doc. 1 ¶¶ 56-61.1 7 3. Vicarious Liability (Counts Eight, Nine, and Ten). 8 Counts eight, nine, and ten allege that Holdings is vicariously liable for the 9 damages caused by TIMI’s alleged misconduct. Doc. 1 ¶¶ 62-79. They assert that 10 Holdings was the owner of TIMI with the right to exercise extensive and continuous 11 control over its operations. Id. ¶¶ 62, 62, 67, 75. They further allege that an actual or 12 apparent agency relationship existed between the two entities and that the entities 13 engaged in a joint venture to manufacture and sell firearms. Id. ¶¶ 62-63, 67-68, 76. 14 TIMI contends that these “veil-piercing” counts must be dismissed because they 15 are not independent causes of action. Doc. 12 at 8 (citing Perry v. Unum Life Ins. Co. of 16 Am., 353 F. Supp. 2d 1237, 1239 n.2 (N.D. Ga. 2005) (noting that “there is no 17 independent cause of action in Georgia for ‘engaging in a joint venture’ or ‘acting as an 18 alter ego’”); In re Elegant Custom Homes, Inc., No. CV06-2574-PHX-DGC, 2007 WL 19 1412456, at *5 (D. Ariz. May 14, 2007) (finding that “alter ego” and “veil piercing” are 20 not independent causes of action)). But TIMI cites no legal authority suggesting that veil 21 piercing cannot be pled in a separate count as a derivative claim tied to some other 22 substantive cause of action. See Specialty Cos. Grp., LLC v. Meritage Homes of Ariz., 23 Inc., 492 P.3d 308, 310 (Ariz. 2021) (explaining that veil piercing and alter ego claims 24 “are derivative of another cause of action”); Glamour Dolls Inc. v. Lisa Frank Inc., No. 25 CV-21-00228-TUC-SHR, 2022 WL 3098042, at *13 (D. Ariz. Aug. 4, 2022) (“Under 26
27 1 Given this ruling, the Court need not address TIMI’s alternative argument that negligent misrepresentation claims are economic torts not legally viable in personal 28 injury actions. Doc. 12 at 5-6. 1 Arizona law, alter ego is . . . a derivative claim tied to some other substantive cause of 2 action such as ones based on contract or tort.”); Farmers Ins. Co. of Ariz. v. DNS Auto 3 Glass Shop LLC, No. CV-21-01390-PHX-DGC, 2022 WL 845191, at *2 (D. Ariz. 4 Mar. 22, 2022) (explaining that where the “plaintiffs have brought substantive claims 5 upon which to base alter-ego liability, courts have allowed alter ego to be pled as a 6 separate count.”). 7 Here, the claims asserting Holdings’ vicarious liability are tied to the substantive 8 claims for negligence and strict liability. See Doc. 17 at 11. The Court will deny TIMI’s 9 motion with respect to counts eight, nine, and ten. See Wolf Designs LLC v. Five 18 10 Designs LLC, 635 F. Supp. 3d 787, 801 (D. Ariz. 2022) (“Plaintiff’s complaint includes 11 substantive claims for which alter ego may be an available theory to hold Defendant 12 Maxwell derivatively liable. The Court will interpret Count 5 (alter ego) as a theory of 13 liability rather than an independent cause of action, and will not dismiss the count merely 14 because it is pled separately.”).2 15 4. Combining and Concurring Conduct. 16 The complaint concludes by alleging that the conduct of Defendants “combined 17 and concurred” to cause Elise’s death. Doc. 1 ¶ 80. Plaintiff does not address this issue 18 in her response, arguing only that the vicarious liability claims asserted in counts eight, 19 nine, and ten survive dismissal. Doc. 17 at 10-11. The Court will grant TIMI’s motion 20 with respect to “combining and concurring conduct.” Docs. 12 at 8, 18 at 4. 21 III. Holdings’ Motion to Dismiss for Lack of Personal Jurisdiction. 22 A. Rule 12(b)(2) Standard. 23 When a defendant moves to dismiss for lack of personal jurisdiction under Rule 24 12(b)(2), “the plaintiff bears the burden of demonstrating that the court has jurisdiction
25 2 In its reply, TIMI contends that even if the veil-piercing counts can be construed 26 as theories of Holdings’ derivative liability, that cannot be a basis for a derivative claim against TIMI, the alleged tortfeasor. Doc. 18 at 4. But Plaintiff does not assert the 27 veil-piercing counts against TIMI. Rather, Plaintiff seeks to hold “Holdings vicariously liable for the death, damages, and losses that resulted from the . . . acts or omissions of 28 [TIMI].” Doc. 1 ¶¶ 66, 74, 79. 1 over the defendant.” Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006). 2 The plaintiff “need only make a prima facie showing of jurisdictional facts” when the 3 court’s determination is based on written materials rather than an evidentiary hearing. 4 Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008) (citation omitted). That is, 5 “the plaintiff need only demonstrate facts that if true would support jurisdiction over the 6 defendant.” Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995). 7 A court’s authority to exercise jurisdiction over a defendant consistent with due 8 process “depends on the defendant having such contacts with the forum State that ‘the 9 maintenance of the suit is reasonable . . . and does not offend traditional notions of fair 10 play and substantial justice.’” Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 592 U.S. 11 351, 358 (2021) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316-17 (1945) 12 (cleaned up)). This inquiry “has long focused on the nature and extent of ‘the 13 defendant’s relationship to the forum state.’” Id. (quoting Bristol-Myers Squibb Co. v. 14 Super. Ct. of Cal., S.F. Cnty., 582 U.S. 255, 262 (2017)). That relationship may permit 15 “two kinds of personal jurisdiction: general (sometimes called all-purpose) jurisdiction 16 and specific (sometimes called case-linked) jurisdiction.” Id. 17 General jurisdiction depends on the defendant’s relationship with the forum state. 18 For corporations, the question is whether the defendant is incorporated, headquartered, or 19 otherwise “at home” there. Id. 20 Specific jurisdiction depends on the relationship between “the defendant, the 21 forum, and the litigation.” Walden v. Fiore, 571 U.S. 277, 284 (2014). “[S]pecific 22 jurisdiction covers defendants that are less intimately connected with a state, but that 23 have sufficient minimum contacts with the state that are relevant to the lawsuit.” LNS 24 Enters. LLC v. Cont’l Motors, Inc., 22 F.4th 852, 858 (9th Cir. 2022). The Ninth Circuit 25 has “established a three-prong test for analyzing a claim of specific personal jurisdiction: 26 (1) The non-resident defendant must purposefully direct his activities or 27 consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege 28 of conducting activities in the forum, thereby invoking the benefits and 1 protections of its laws; 2 (2) the claim must be one which arises out of or relates to the defendant’s 3 forum-related activities; and 4 (3) the exercise of jurisdiction must comport with fair play and substantial 5 justice, i.e., it must be reasonable. 6 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). “The 7 plaintiff bears the burden of satisfying the first two prongs of the test.” Id. 8 B. Discussion. 9 1. The Complaint Does Not Allege Personal Jurisdiction. 10 The complaint properly asserts that the Court has subject matter jurisdiction under 11 28 U.S.C. § 1332(a) because Plaintiff is a citizen of Arizona, TIMI and Holdings are 12 Georgia corporations headquartered in Georgia, and the amount in controversy exceeds 13 $75,000. Doc. 1 ¶¶ 1-2, 4. But the complaint contains no allegations from which Court 14 can conclude that it has personal jurisdiction over Holdings. Plaintiff notes that the 15 complaint alleges that “Defendants are so intertwined contractually for each other’s 16 liabilities that they are essentially one entity” (Docs. 1 ¶ 3, 16 at 5), but this says nothing 17 about their contacts with Arizona, the forum state. 18 Holdings notes, correctly, that the complaint groups TIMI and Holdings together, 19 referring to these separate entities collectively as the “Taurus Defendants.” Doc. 14 at 4 20 (citing Doc. 1 ¶ 2). The law in this Circuit “is clear that allegations of ‘jurisdiction over 21 each defendant must be established individually.” Seldin v. HSN, Inc., No. 17-CV-2183- 22 AJB-MDD, 2018 WL 3570308, at *8 (S.D. Cal. July 25, 2018) (quoting Sher v. Johnson, 23 911 F.2d 1357, 1365 (9th Cir. 1990)); see In re Boon Glob. Ltd., 923 F.3d 643, 651 (9th 24 Cir. 2019) (explaining that “each party’s ‘contacts with the forum state must be assessed 25 individually”) (citation omitted). Thus, “Plaintiff’s grouping of the Defendants together 26 to establish personal jurisdiction . . . is inadequate.” Seldin, 2018 WL 3570308, at *8; see 27 Skurkis v. Montelongo, No. 16-CV-0972 YGR, 2016 WL 4719271, at *4 (N.D. Cal. Sept. 28 1 9, 2016) (explaining that personal jurisdiction must be determined “as to each defendant 2 based on each defendant’s own contacts with [the forum state],” and finding that the 3 plaintiffs failed to meet their burden where “the jurisdictional allegations of the 4 [complaint] group all defendants together”). 5 The complaint alleges that “many individuals who work on designing, 6 manufacturing, engineering, testing, inspecting, marketing, importing, distributing, 7 supplying, and/or selling Taurus pistols . . . are employees of both TIMI and . . . 8 Holdings.” Doc. 1 ¶ 3. But this allegation is not sufficient to show that TIMI and 9 Holdings had the requisite minimum contacts with Arizona. And Plaintiff offers no 10 evidence in support of the allegation. See Doc. 16 at 7. Holdings, by contrast, presents 11 uncontroverted testimony from its CEO, Bret Vorhees, that Holdings does not have a 12 federal firearms license and therefore “cannot and does not design, import, manufacture, 13 assemble, test, package, ship, label, advertise, promote, market, warrant, or repair 14 firearms in any way.” Doc. 14 at 19-20. 15 2. General Jurisdiction Does Not Exist. 16 Plaintiff concedes that general jurisdiction does not exist because TIMI and 17 Holdings are Georgia corporations with their principal place of business in Georgia. See 18 Docs. 12 at 5-6, 16 at 3 n.1. 19 3. Plaintiff Has Made No Showing of Specific Jurisdiction. 20 a. Purposeful Availment and Direction. 21 A plaintiff can prove the first prong of the specific jurisdiction test by showing 22 either “purposeful availment” or “purposeful direction.” Schwarzenegger, 374 F.3d at 23 802. “Although the Ninth Circuit typically applies purposeful direction analyses to 24 intentional tort claims and purposeful availment analyses to contract and unintentional 25 tort claims, there is no ‘rigid dividing line between these two types of claims.’” First 26 Way Transp. LLC v. Rebel Auction Co. Inc., No. CV-23-00393-TUC-SHR, 2024 WL 27 2863467, at *3 (D. Ariz. June 6, 2024) (quoting Davis v. Cranfield Aerospace Sols., Ltd., 28 71 F.4th 1154, 1162 (9th Cir. 2023)). Rather, “the first prong may be satisfied by 1 purposeful availment, by purposeful direction, or by some combination thereof.” Davis, 2 71 F.4th at 1162 (cleaned up). 3 Plaintiff has not shown that Holdings purposefully availed itself of the privilege of 4 doing business in Arizona or purposefully directed its activities at Arizona. Similar to the 5 complaint, Plaintiff makes no distinction between Holdings and TIMI in her response 6 brief, referring to them collectively as “Taurus.” See Doc. 16 at 2. Plaintiff asserts that 7 because “Taurus” cannot legally sell its products directly to consumers, it has established 8 a network of federally-licensed distributors, such as Lipsey’s Inc., an intermediary in the 9 alleged chain of distribution. Id. at 10. Citing the Vorhees declaration, Plaintiff asserts 10 that “Taurus” transferred the subject pistol to Lipsey’s on January 17, 2022, and Lipsey’s 11 subsequently transferred the pistol to the Sportsman’s Warehouse in Mesa, Arizona 12 where Jaramillo purchased it. Id. at 5, 10 (citing Doc. 14 at 20, ¶ 13). But the Vorhees 13 declaration does not make this assertion with respect to Holdings. It states that TIMI 14 alone sold the pistol to Lipsey’s, which is located in Louisiana, and presents a firearms 15 acquisition and disposition record reflecting the transaction. Doc. 14 at 19-20, 24. 16 Vorhees further declares that: (1) although owned by Holdings, TIMI is a separate, 17 distinct, and independent corporation; (2) TIMI and Holdings maintain separate and 18 independent boards of directors, by-laws, minutes, corporate records, financial records, 19 and bank accounts; (3) TIMI is adequately capitalized and TIMI and Holdings do not 20 treat the assets of one entity as the assets of the other; (4) Holdings does not direct the 21 day-to-day operations of TIMI; (5) TIMI, not Holdings, imports, manufactures, and 22 assembles Taurus branded firearms, including GX4 pistols, and sells the firearms from 23 Georgia to federally-licensed distributors; and (6) the limited warranties covering Taurus 24 branded firearms are offered and honored by TIMI. Id. at 19-21; see also Taurus, 25 Company, https://www.taurususa.com/company/about-us (“TIMI[] manufactures some 26 models of Taurus brand firearms in the US, and imports the remainder from Taurus 27 Armas. TIMI handles servicing for all Taurus branded firearms in the US either imported 28 or manufactured by TIMI.”) (last visited June 26, 2024). Other than noting that Vorhees 1 is the CEO of both Holdings and TIMI (Doc. 16 at 6), Plaintiff does not address his 2 declaration or present any controverting evidence. See Doc. 19 at 2, 4. 3 Plaintiff states that she “has simply alleged that [the Taurus Defendants] act 4 together to sell firearms[,]” and “[t]aking the allegations in the Complaint as true, which 5 we must, the contacts of each defendant with this forum are therefore the same.” Doc. 16 6 at 6. But in this Circuit only “uncontroverted allegations in the complaint must be taken 7 as true” for purposes of personal jurisdiction. Herbal Brands, Inc. v. Photoplaza, Inc., 72 8 F.4th 1085, 1090 (9th Cir. 2023) (emphasis added). The Court “cannot assume the truth 9 of allegations in a pleading which are contradicted by affidavit.” LNS Enters., 22 F.4th at 10 858 (citation omitted). Holdings has presented an uncontroverted declaration showing 11 that Holdings and TIMI do not act together to sell firearms. Docs. 14 at 19-20, 19 at 2. 12 Plaintiff notes that the Taurus website shows certain connections between 13 Holdings and TIMI: (1) TIMI and Holdings have the same address; (2) the website 14 content is copyrighted by TIMI but the website is maintained by Holdings; (3) notice of 15 copyright infringement claims are to be sent to Holdings; (4) TIMI and Holdings are 16 insureds on insurance policies covering claims in this case; and (5) Holdings owns some 17 of the most robust firearm brands, including TIMI. Doc. 16 at 6-7. But Plaintiff does not 18 explain how these connections show that the “Taurus Defendants share the same Arizona 19 contacts” or that Holdings “purposefully availed [itself] of the privilege of doing business 20 in Arizona and purposefully directed [its] activities at Arizona.” Id. at 5, 10.3 21 What is more, the first prong of specific jurisdiction “requires ‘something more’ 22 than the mere placement of a product into a stream of commerce” – even if the defendant 23 is aware that the stream will sweep the product into the forum state. LNS Enters., 22 24 F.4th at 860 (citations omitted). The “something more” may include “designing the 25 product for the market in the forum State, advertising in the forum State, establishing 26 channels for providing regular advice to customers in the forum State, or marketing the
27 3 Plaintiff presents a declaration from Jaramillo, but it merely confirms that he 28 purchased the pistol from Sportsman’s Warehouse in Mesa, Arizona. Doc. 16-1 at 2. 1 product through a distributor who has agreed to serve as the sales agent in the forum 2 State.” Id. at 861 (quoting Asahi Metal Indus. Co. v. Superior Ct., 480 U.S. 102, 111 3 (1987)). Plaintiff presents no evidence of the “something more” required to show that 4 Holdings expressly aimed activities at Arizona. 5 Plaintiff asserts that Lipsey’s has essentially agreed to serve as the “agent” for 6 “Taurus” so that its products can be marketed and sold in Arizona (Doc. 16 at 12), but 7 presents no supporting evidence. And contrary to Plaintiff’s assertion (id. at 10), 8 Lipsey’s does not sell products to consumers in Arizona. Instead, Lipsey’s sells products 9 to retail dealers, such as Sportsman’s Warehouse. See id. at 4-5; Lipsey’s, Home Page, 10 https://www.lipseys.com/ (advertising itself as the “Nation’s Leading Wholesale Firearms 11 Distributor selling to any Federally Licensed Dealer”); Taurus, Terms & Conditions, 12 https://www.taurususa.com/terms-conditions (“Taurus does not sell firearms to 13 individuals or even to federally licensed individuals or retail dealers. Rather, we sell 14 firearms directly to a small number of independent, federally licensed wholesale firearm 15 distributors, who in turn sell firearms to federally licensed retail dealers, who in turn sell 16 their firearms to legally authorized retail purchasers[.]) (last visited June 26, 2024).4 17 Plaintiff’s reliance on Herbal Brands is misplaced. See Doc. 16 at 7-13. That 18 case held that “the sales of physical products into a forum via an interactive website can 19 be sufficient to establish that a defendant expressly aimed its conduct at the forum” where 20 the defendant “exercise[d] some level of control over the ultimate distribution of its 21 products beyond simply placing its products into the stream of commerce.” 72 F.4th at 22 1094. The allegations in Herbal Brands met this standard because the defendants “used 23 their Amazon storefronts – their means of conducting regular business –to make product 24 sales to Arizona residents.” Id. Holdings has presented uncontroverted evidence that it 25 does not make, buy, sell, or market firearms. See Docs. 14 at 19-20, 19 at 5-6. 26
27 4 Plaintiff references Lipsey’s website, which states that it partners with major manufacturers to provide products to dealers (Doc. 16 at 12), but this does not show that 28 Lipsey’s serves as Holdings or TIMI’s sales agent in Arizona. 1 b. Arising Out Of or Relating to Forum-Related Activities. 2 The Supreme Court has made clear that “mere injury to a forum resident is not a 3 sufficient connection to the forum.” Walden v. Fiore, 571 U.S. 277, 290 (2014). 4 “Rather, it is the defendant’s conduct that must form the necessary connection with the 5 forum State that is the basis for its jurisdiction over him.” Id. at 285; see Yamashita v. 6 LG Chem, Ltd., 62 F.4th 496, 506 (9th Cir. 2023) (“Ford makes clear that ‘relate to’ 7 ‘does not mean anything goes.’ . . . . Ford suggest[s] that relatedness requires a close 8 connection between [forum] contacts and injury.”) (quoting Ford, 592 U.S. at 362); Shute 9 v. Carnival Cruise Lines, 897 F.2d 377, 385 (9th Cir. 1990), rev’d on other grounds, 499 10 U.S. 585 (1991) (explaining that the “but for” test for arising out of forum-related 11 activities “preserves the requirement that there be some nexus between the cause of 12 action and the defendant’s activities in the forum”). 13 Plaintiff asserts that the negligence and strict liability claims regarding the 14 defective GX4 pistol “relate directly to the design, manufacturing, marketing, and sale of 15 the Taurus Defendants’ products to Arizona residents.” Doc. 16 at 13. But Plaintiff 16 presents no evidence that Holdings designed or manufactured the pistol, or that it markets 17 and sells the pistol to Arizona residents. The undisputed evidence shows that TIMI sold 18 the subject GX4 pistol to Lipsey’s, a Louisiana distributor. Docs. 14 at 20, 16 at 4-5; see 19 Yamashita, 62 F.4th at 506 (“Ford found [relatedness] because Ford sold the relevant 20 models to consumers in the forum states, not because it shipped raw materials, or even 21 completed cars, through those states.”). Plaintiff has not shown that the negligence and 22 strict liability claims arise out of or relate to Holdings’ contacts with Arizona.5 23 Because Plaintiff has not met her burden of satisfying the first two prongs of the 24 specific jurisdiction test, see Schwarzenegger, 374 F.3d at 802, the Court will grant 25 Holdings’ motion to dismiss for lack of personal jurisdiction. See Doc. 14 at 4-13. 26
27 5 Holdings argues that Plaintiff cannot show that TIMI’s jurisdictional contacts with Arizona should be imputed to Holdings. Doc. 14 at 8-13. Plaintiff does not address 28 this argument in her response. See Doc. 19 at 6. 1 Given this ruling, the vicarious liability claims asserted against Holdings (counts eight, 2 nine, and ten) will be dismissed.6 3 4. Plaintiff’s Request for Jurisdictional Discovery. 4 Plaintiff requests leave to conduct jurisdictional discovery. Doc. 16 at 17. The 5 Court “may grant jurisdictional discovery if the request is based on more than a ‘hunch 6 that it might yield jurisdictionally relevant facts.’” Gamez v. Huffy Corp. Inc., No. CV- 7 21-00414-TUC-JCH, 2024 WL 98423, at *8 (D. Ariz. Jan. 9, 2024) (quoting Boschetto v. 8 Hansing, 539 F.3d 1011, 1020 (9th Cir. 2008)). “But the Court need not permit even 9 limited discovery where the claim of jurisdiction ‘appears to be both attenuated and based 10 on bare allegations in the face of specific denials.” Id. (quoting Pebble Beach, 453 F.3d 11 at 1160). 12 Plaintiff seeks jurisdictional discovery to “ascertain how the Taurus entities 13 interact and overlap” and to “discern where one entity begins and the other ends.” 14 Doc. 16 at 6, 16. Plaintiff’s request is general in nature and appears to be based on a 15 mere belief that Holdings has substantial contacts with Arizona. Given the analysis in the 16 immediately preceding sections of this order, the Court concludes that Plaintiff’s request 17 amounts to a mere “hunch that [discovery] might yield jurisdictionally relevant facts.” 18 Boschetto, 539 F.3d at 1020; see LNS Enters., 22 F.4th at 865 (affirming the denial of a 19 request for jurisdictional discovery where the defendants “had already specifically 20 rebutted [the plaintiffs’] unsupported jurisdictional allegations and arguments” and the 21 plaintiffs sought discovery “without providing any affidavit or evidence substantiating 22 their requests or describing with any precision how such discovery could be helpful to the 23 Court”). 24 Plaintiff also seeks jurisdictional discovery to ascertain “the exact number of 25 warranty repair claims in [Arizona].” Doc. 16 at 11. But the number of warranty claims 26
27 6 Holding’s alternative motion to dismiss for failure to state a claim for relief 28 (Doc. 14 at 13-15) will be denied as moot. has nothing to do with Holdings because “[t]he limited warranties covering Taurus- branded firearms are offered by and honored by TIMI.” Doc. 14 at 21, § 21. 3 Plaintiffs request for jurisdictional discovery is denied. 4 5. Plaintiff’s Request for Leave to Amend the Complaint. 5 Plaintiff requests an opportunity to amend her complaint for any claim that has not 6| been pled sufficiently. Doc. 16 at 17. As discussed, Plaintiff consents to the dismissal of 7 | the breach of warranty claims (counts two and three), and the vicarious liability claims 8 | against Holdings (counts eight, nine, and ten) will be dismissed given the Court’s lack of 9 | personal jurisdiction over Holdings. If Plaintiff has a good faith belief that she can cure the deficiencies in the negligent misrepresentation claim against TIMI (count seven), she 11 | may file a motion for leave to amend the complaint pursuant to Rule 15(a)(2) and Local 12} Rule 15.1(a). 13 IT IS ORDERED: 14 1. Defendant Taurus International Manufacturing, Inc.’s motion to dismiss for 15 | failure to state a claim for relief (Doc. 12) is granted in part and denied in part. The 16 | motion is granted with respect to the breach of warranty claims in counts two and three, the negligent misrepresentation claim in count seven, and the unnumbered count for 18 | “combining and concurring conduct.” Doc. 1 §] 27-35, 56-61, 80. The motion is denied 19 | in all other respects. 20 2. Plaintiff may file a motion for leave to amend the complaint with respect to 21 | count seven by July 12, 2024. 22 3. Defendant Taurus Holdings, Inc.’s motion to dismiss for lack of personal 23 | jurisdiction (Doc. 14 at 4-13) is granted and its alternative motion to dismiss for failure 24 | to state a claim for relief (Doc. 14 at 13-15) is denied as moot. 25 4. Plaintiff's request for jurisdictional discovery is denied. 26 5. The Court will set a case management conference by separate order. 27 Dated this 27th day of June, 2024. pated 6 Cat 28 David G. Campbell 7 Senior United States District Judge