FILED NOT FOR PUBLICATION NOV 25 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VANTAGE MOBILITY No. 20-15781 INTERNATIONAL LLC, an Arizona limited liability company, D.C. No. 2:19-cv-04684-JJT
Plaintiff-Appellant, MEMORANDUM* v.
KERSEY MOBILITY LLC, a Washington limited liability company; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the District of Arizona John Joseph Tuchi, District Judge, Presiding
Argued and Submitted October 20, 2020 San Francisco, California
Before: CLIFTON, N.R. SMITH, and R. NELSON, Circuit Judges.
Vantage Mobility International LLC (“VMI”) appeals the district court’s
dismissal of The Braun Corporation (“Braun”) for lack of personal jurisdiction, the
denial of its request for a preliminary injunction against Kersey Mobility LLC
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. (“Kersey”), the denial of motions for reconsideration, and the denial of its request
to take expedited discovery. We affirm.
General personal jurisdiction is lacking because Braun is not incorporated in
Arizona and Arizona is not Braun’s principal place of business. See Daimler AG v.
Bauman, 571 U.S. 117, 215 (2014). This is not an “exceptional case.”1 See id. at
139 n.19. Braun’s contacts with Arizona are less than the forum-related contacts
of defendants in cases where the Supreme Court has held that there was a lack of
general jurisdiction. See, e.g., BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549, 1558
(2017); Daimler, 571 U.S. at 136–39.
Specific personal jurisdiction is lacking because VMI did not adequately
plead that its injuries arose from or related to Braun’s contacts in Arizona. See
Bristol-Myers Squibb Co. v. Super. Ct. of Cal., 137 S. Ct. 1773, 1781 (2017) (“In
order for a court to exercise specific jurisdiction over a claim, there must be an
affiliation between the forum and the underlying controversy, principally, an
activity or an occurrence that takes place in the forum State.”) (internal quotation
marks and citation omitted).
1 Contrary to Braun’s arguments, the district court’s analysis was sufficient for us to consider this argument and it was not waived. See Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir. 1992). 2 VMI forfeited its contractual consent argument. See Banister v. Davis, 140
S. Ct. 1698, 1703 (2020). Alternatively, it fails on the merits. See JTF Aviation
Holdings Inc v. CliftonLarsonAllen LLP, 472 P.3d 526, 531 (Ariz. 2020).
VMI’s timely filing of a motion for reconsideration of the district court’s
denial of its request for a preliminary injunction tolled the time to appeal the denial
of the preliminary injunction.2 Fed. R. App. P. 4(a)(4)(A)(iv); S.O.C., Inc. v.
County of Clark, 152 F.3d 1136, 1141 & n.4 (9th Cir. 1998), amended, 160 F.3d
541 (9th Cir. 1998).
The district court did not abuse its discretion in declining to issue a
preliminary injunction. VMI’s claims are unlikely to succeed on the merits. See
California v. Azar, 911 F.3d 558, 575 (9th Cir. 2018).
VMI’s breach of contract claim is unlikely to succeed because it did not
appear that there was a breach. See Graham v. Asbury, 540 P.2d 656, 657 (Ariz.
1975). The Location Policy was not implicated by the MPA because the MPA
only involved the purchase of membership interests and not assets. See Wash.
2 That VMI labeled its motion for reconsideration as brought under Rule 60 and the local rule is inconsequential because “nomenclature is not controlling.” Sea Ranch Ass’n v. Cal. Coastal Zone Conservation Comm’ns, 537 F.2d 1058, 1061 (9th Cir. 1976) (citation omitted). Motions for reconsideration, such as the one VMI brought, are construed as brought under Rule 59(e). See Shapiro ex rel. Shapiro v. Paradise Valley Unified Sch. Dist. No. 69, 374 F.3d 857, 863 (9th Cir. 2004). 3 Rev. Code § 25.15.246(1) (a member of a limited liability company has “no
interest in specific limited liability company property” by virtue of owning
membership interests); cf. Dole Food Co. v. Patrickson, 538 U.S. 468, 475 (2003)
(“A corporate parent which owns the shares of a subsidiary does not, for that
reason alone, own or have legal title to the assets of the subsidiary[.]”); 1 W.
Fletcher, Cyclopedia of the Law of Corporations § 20 (2020) (“A ‘membership
interest’ is an ownership interest in a limited liability company and is akin to an
interest in stock of a corporation.”). VMI’s arguments to the contrary are not
persuasive.
Assuming the Control Policy modified the ADA and did not propose a new
contract, Michael Kersey did not assent to the Control Policy. See Demasse v. ITT
Corp., 984 P.2d 1138, 1145 (Ariz. 1999) (en banc) (holding that an offeree “does
not manifest consent to an offer modifying an existing contract without taking
affirmative steps, beyond continued performance, to accept”). VMI’s arguments
primarily rely on Michael Kersey’s lack of objection to the Control Policy.
Arizona law has rejected that argument. See id. at 1146.
Regardless of whether Kersey’s managing representatives can be held liable
for tortiously interfering with Kersey’s own contracts, VMI is unlikely to succeed
on its tortious interference claim because a breach of a contract is a necessary
4 element of that claim. See Snow v. W. Sav. & Loan Ass’n, 730 P.2d 204, 211
(Ariz. 1986) (en banc).
VMI’s unfair competition claim is unlikely to succeed because VMI does
not adequately explain how commerce was constrained in Arizona, nor is its claim
of loss of sales in Arizona sufficient to sustain an unfair competition claim under
antitrust laws. See Ariz. Rev. Stat. §§ 44–1402 et seq.; Atl. Richfield Co. v. USA
Petroleum Co., 495 U.S. 328, 344 (1990).
VMI’s civil conspiracy claim requires an underlying tort, Wells Fargo Bank
v. Ariz. Laborers, Teamsters & Cement Masons Loc. No. 395 Pension Tr. Fund, 38
P.3d 12, 36–37 (Ariz. 2002), and because VMI’s claim for intentional interference
with contractual relations is not likely to succeed, its civil conspiracy claim is
unlikely to succeed as well.
VMI’s consumer fraud claim is likely to fail because it did not adequately
plead injury resulting from Kersey’s alleged misrepresentation. See Watts v.
Medicis Pharm. Corp.,
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FILED NOT FOR PUBLICATION NOV 25 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VANTAGE MOBILITY No. 20-15781 INTERNATIONAL LLC, an Arizona limited liability company, D.C. No. 2:19-cv-04684-JJT
Plaintiff-Appellant, MEMORANDUM* v.
KERSEY MOBILITY LLC, a Washington limited liability company; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the District of Arizona John Joseph Tuchi, District Judge, Presiding
Argued and Submitted October 20, 2020 San Francisco, California
Before: CLIFTON, N.R. SMITH, and R. NELSON, Circuit Judges.
Vantage Mobility International LLC (“VMI”) appeals the district court’s
dismissal of The Braun Corporation (“Braun”) for lack of personal jurisdiction, the
denial of its request for a preliminary injunction against Kersey Mobility LLC
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. (“Kersey”), the denial of motions for reconsideration, and the denial of its request
to take expedited discovery. We affirm.
General personal jurisdiction is lacking because Braun is not incorporated in
Arizona and Arizona is not Braun’s principal place of business. See Daimler AG v.
Bauman, 571 U.S. 117, 215 (2014). This is not an “exceptional case.”1 See id. at
139 n.19. Braun’s contacts with Arizona are less than the forum-related contacts
of defendants in cases where the Supreme Court has held that there was a lack of
general jurisdiction. See, e.g., BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549, 1558
(2017); Daimler, 571 U.S. at 136–39.
Specific personal jurisdiction is lacking because VMI did not adequately
plead that its injuries arose from or related to Braun’s contacts in Arizona. See
Bristol-Myers Squibb Co. v. Super. Ct. of Cal., 137 S. Ct. 1773, 1781 (2017) (“In
order for a court to exercise specific jurisdiction over a claim, there must be an
affiliation between the forum and the underlying controversy, principally, an
activity or an occurrence that takes place in the forum State.”) (internal quotation
marks and citation omitted).
1 Contrary to Braun’s arguments, the district court’s analysis was sufficient for us to consider this argument and it was not waived. See Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir. 1992). 2 VMI forfeited its contractual consent argument. See Banister v. Davis, 140
S. Ct. 1698, 1703 (2020). Alternatively, it fails on the merits. See JTF Aviation
Holdings Inc v. CliftonLarsonAllen LLP, 472 P.3d 526, 531 (Ariz. 2020).
VMI’s timely filing of a motion for reconsideration of the district court’s
denial of its request for a preliminary injunction tolled the time to appeal the denial
of the preliminary injunction.2 Fed. R. App. P. 4(a)(4)(A)(iv); S.O.C., Inc. v.
County of Clark, 152 F.3d 1136, 1141 & n.4 (9th Cir. 1998), amended, 160 F.3d
541 (9th Cir. 1998).
The district court did not abuse its discretion in declining to issue a
preliminary injunction. VMI’s claims are unlikely to succeed on the merits. See
California v. Azar, 911 F.3d 558, 575 (9th Cir. 2018).
VMI’s breach of contract claim is unlikely to succeed because it did not
appear that there was a breach. See Graham v. Asbury, 540 P.2d 656, 657 (Ariz.
1975). The Location Policy was not implicated by the MPA because the MPA
only involved the purchase of membership interests and not assets. See Wash.
2 That VMI labeled its motion for reconsideration as brought under Rule 60 and the local rule is inconsequential because “nomenclature is not controlling.” Sea Ranch Ass’n v. Cal. Coastal Zone Conservation Comm’ns, 537 F.2d 1058, 1061 (9th Cir. 1976) (citation omitted). Motions for reconsideration, such as the one VMI brought, are construed as brought under Rule 59(e). See Shapiro ex rel. Shapiro v. Paradise Valley Unified Sch. Dist. No. 69, 374 F.3d 857, 863 (9th Cir. 2004). 3 Rev. Code § 25.15.246(1) (a member of a limited liability company has “no
interest in specific limited liability company property” by virtue of owning
membership interests); cf. Dole Food Co. v. Patrickson, 538 U.S. 468, 475 (2003)
(“A corporate parent which owns the shares of a subsidiary does not, for that
reason alone, own or have legal title to the assets of the subsidiary[.]”); 1 W.
Fletcher, Cyclopedia of the Law of Corporations § 20 (2020) (“A ‘membership
interest’ is an ownership interest in a limited liability company and is akin to an
interest in stock of a corporation.”). VMI’s arguments to the contrary are not
persuasive.
Assuming the Control Policy modified the ADA and did not propose a new
contract, Michael Kersey did not assent to the Control Policy. See Demasse v. ITT
Corp., 984 P.2d 1138, 1145 (Ariz. 1999) (en banc) (holding that an offeree “does
not manifest consent to an offer modifying an existing contract without taking
affirmative steps, beyond continued performance, to accept”). VMI’s arguments
primarily rely on Michael Kersey’s lack of objection to the Control Policy.
Arizona law has rejected that argument. See id. at 1146.
Regardless of whether Kersey’s managing representatives can be held liable
for tortiously interfering with Kersey’s own contracts, VMI is unlikely to succeed
on its tortious interference claim because a breach of a contract is a necessary
4 element of that claim. See Snow v. W. Sav. & Loan Ass’n, 730 P.2d 204, 211
(Ariz. 1986) (en banc).
VMI’s unfair competition claim is unlikely to succeed because VMI does
not adequately explain how commerce was constrained in Arizona, nor is its claim
of loss of sales in Arizona sufficient to sustain an unfair competition claim under
antitrust laws. See Ariz. Rev. Stat. §§ 44–1402 et seq.; Atl. Richfield Co. v. USA
Petroleum Co., 495 U.S. 328, 344 (1990).
VMI’s civil conspiracy claim requires an underlying tort, Wells Fargo Bank
v. Ariz. Laborers, Teamsters & Cement Masons Loc. No. 395 Pension Tr. Fund, 38
P.3d 12, 36–37 (Ariz. 2002), and because VMI’s claim for intentional interference
with contractual relations is not likely to succeed, its civil conspiracy claim is
unlikely to succeed as well.
VMI’s consumer fraud claim is likely to fail because it did not adequately
plead injury resulting from Kersey’s alleged misrepresentation. See Watts v.
Medicis Pharm. Corp., 365 P.3d 944, 953 (Ariz. 2016); cf. Sutter Home Winery,
Inc. v. Vintage Selections, Ltd., 971 F.2d 401, 407 (9th Cir. 1992).
We have jurisdiction over VMI’s appeal of its expedited discovery request
because 28 U.S.C. § 1292(a)(1) extends jurisdiction not only to the injunction
itself, but to the issues that directly underlie the order. See Fentron Indus., Inc. v.
5 Nat’l Shopmen Pension Fund, 674 F.2d 1300, 1304 (9th Cir. 1982) (subsequent
history omitted).
Contrary to VMI’s arguments, nowhere in its request for expedited
discovery did it state that it was seeking jurisdictional discovery. To the contrary,
VMI continually stated its need for limited discovery specifically for the
preliminary injunction hearing. Indeed, VMI’s motion was titled “[Vantage’s]
Motion to Conduct Accelerated and Expedited Discovery Regarding Preliminary
Injunction.” Some of this discovery might have been relevant to the jurisdictional
question, but VMI never specified how so or inquired into Braun’s contacts with
Arizona or VMI.
The district court did not abuse its discretion in denying VMI’s request for
expedited discovery because VMI’s request was not narrowly tailored to the
preliminary injunction issues. VMI never delineated how any limitation on the
subject matter of the discovery it requested would be effectuated, but rather
requested the broad expedition of almost all discovery deadlines.
AFFIRMED.3
3 We grant VMI’s pending motions to file documents under seal. ECF Nos. 34 & 36. 6