Wild West Guns, LLC v. Superior Ammunition, Inc. et al, No. 3:2018cv00043 - Document 52 (D. Alaska 2019)
Court Description: ORDER granting 26 Motion to Dismiss for Lack of Jurisdiction. Defendant Barnett is dismissed from this case Signed by Judge John W. Sedwick on 2/23/19. (GMM, CHAMBERS STAFF)
Download PDF
<![CDATA[
Wild West Guns, LLC v. Superior Ammunition, Inc. et al Doc. 52 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF ALASKA 6 7 8 9 WILD WEST GUNS, LLC, and ALASKA NATIONAL INSURANCE COMPANY, 10 11 Plaintiffs, vs. 12 13 14 SUPERIOR AMMUNITION, INC. and LARRY BARNETT, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) 3:18-CV-00043 JWS ORDER AND OPINION [Re: Motion at docket 26] 15 16 I. MOTION PRESENTED 17 At docket 26 Defendant Larry Barnett (“Barnett”) moves to dismiss all claims 18 asserted against him under Rule 12(b)(2) for lack of personal jurisdiction and under 19 Rule 12(b)(6) for failure to state a claim. At docket 39, Plaintiff Wild West Guns, LLC 20 (“Wild West”) opposes the motion. Barnett replies at docket 45. Oral argument was not 21 requested and would not assist the court. 22 II. BACKGROUND 23 Wild West’s complaint alleges that Defendant Superior Ammunition, Inc. 24 (“Superior Ammunition”), a business corporation organized under the law of South 25 Dakota, sold defective ammunition to Anchorage resident Ernest Meinhardt 26 (“Meinhardt”). The complaint alleges that the ammunition was custom-made for 27 Meinhardt’s rifle. It alleges that the defective ammunition resulted in personal injury to 28 -1- Dockets.Justia.com 1 Mr. Brian Swanda (“Swanda”), an employee of Wild West, who had been test firing the 2 rifle, which was loaded with the custom ammunition, in conjunction with work Wild West 3 was doing on Meinhardt’s rifle. 4 The complaint alleges that Barnett either owned and/or operated Superior 5 Ammunition at the time the ammunition was sold. It alleges that Barnett, as the 6 representative and/or agent of Superior Ammunition, made various representations to 7 Meinhardt about the characteristics, quality, and safety of Superior Ammunition’s 8 custom ammunition and represented that it could manufacture ammunition suitable and 9 safe for use in Meinhardt’s rifle. It alleges that Superior Ammunition agreed to sell 10 Meinhardt custom-made ammunition for use in Meinhardt’s rifle and then manufactured 11 and shipped that ammunition to Meinhardt in Alaska. 12 After the incident with Swanda, Wild West paid Meinhardt for the firearm and 13 took an assignment of his claims related to the ammunition. Wild West then filed its 14 complaint against Superior Ammunition and Barnett in Alaska state court. Superior 15 Ammunition removed the case to federal court, and Barnett now moves to dismiss all 16 claims against him. 17 At docket 8, the court directed the parties to meet before filing a Rule 12(b) 18 motion. The purpose of such an order is to prompt the parties to consider whether an 19 amendment could cure any alleged pleading deficiencies and thereby avoid 20 unnecessary motion practice. Any Rule 12(b) motion had to be accompanied by a 21 certification that the parties met as directed or risk being stricken by the court. Barnett 22 failed to file the requisite certification with his motion and admitted that he did not confer 23 with Plaintiff as to whether the asserted defects could be cured by an amended 24 pleading. A meeting to consider Barnett’s Rule 12(b)(6) argument—that Plaintiff failed 25 to plead facts that state an independent claim against him or pierce the corporate 26 veil—could have served the purpose of the court’s directive and prompted the Plaintiff to 27 attempt to cure the alleged defect. However, Barnett’s Rule 12(b)(2) argument—that 28 the court cannot exercise personal jurisdiction over him—is not curable by amendment -2- 1 and a meeting between the parties would have been futile in saving the court and 2 parties time and effort. Therefore, the court will consider the motion at docket 26, but 3 only to the extent it challenges personal jurisdiction. 4 5 III. STANDARD OF REVIEW “Where a defendant moves to dismiss a complaint pursuant to Federal Rule of 6 Civil Procedure 12(b)(2), for lack of personal jurisdiction, the plaintiff bears the burden of 7 establishing that a court has personal jurisdiction over a defendant.”1 Where the motion 8 is based only upon written materials, rather than an evidentiary hearing, the plaintiff is 9 required only to make a prima facie showing of personal jurisdiction.2 Uncontroverted 10 allegations in the complaint are taken as true, and conflicts between parties over 11 statements contained in affidavits are resolved in favor of the plaintiff.3 12 “Where, as here, there is no applicable federal statute governing personal 13 jurisdiction, the district court applies the law of the state in which the district court sits.”4 14 Alaska’s long-arm statute authorizes the exercise of jurisdiction to the extent permitted 15 by federal due process requirements.5 Due process requires that the defendant “have 16 certain minimum contacts with [the forum] such that the maintenance of the suit does 17 not offend traditional notions of fair play and substantial justice.”6 18 IV. DISCUSSION 19 The parties agree that the court does not have general personal jurisdiction over 20 Barnett. Indeed, based on Barnett’s uncontroverted affidavit, he does not have 21 22 1 23 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). 2 24 25 Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1108 (9th Cir. 2002). 3 Brayton Purcell LLP v. Recordon & Recordon, 575 F.3d 981, 985 (9th Cir. 2009). 26 4 27 5 28 6 Fred Martin Motor Co., 374 F.3d at 800. Volkswagenwerk, A.G. v. Klippen, GmbH, 611 P.2d 498, 500 (Alaska 1980). Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotations omitted). -3- 1 “substantial, continuous, and systematic” contacts with the state of Alaska.7 The 2 parties’ dispute is focused on whether the court may exercise specific personal 3 jurisdiction over Barnett—that is, jurisdiction with respect to the claims at issue in this 4 case. Wild West’s basis for jurisdiction rests primarily on Alaska’s long-arm statute 5 AS 09.05.015, which provides several specific grounds for jurisdiction. Wild West 6 argues that AS 09.05.015(a)(4) is applicable here. That subsection gives the court 7 jurisdiction over a defendant in a personal injury lawsuit where the injury arose out of an 8 act or omission by the defendant out of state, as long as at the time of the injury the 9 defendant either engaged in solicitation or service activities in state or manufactured 10 products that were used in state in the ordinary course of trade. Wild West also argues 11 that AS 09.05.015(a)(5) is applicable here because it gives the court jurisdiction over a 12 defendant in an action that arises out of a promise made by the defendant to deliver 13 goods in state or an action that relates to goods received by the plaintiff in state from 14 the defendant. Wild West argues that its complaint alleges Barnett made 15 representations and provided advice to a resident of Alaska about Superior 16 Ammunition’s goods and that those goods were shipped to Alaska and received by 17 Meinhardt in Alaska and eventually caused injury due to their allegedly defective nature. 18 Wild West concludes “[s]ince the courts of the State of Alaska had personal jurisdiction 19 over . . . Barnett [under the state statute], the United States District Court for the District 20 of Alaska also has personal jurisdiction over . . . Barnett.”8 21 Wild West’s argument is misplaced. While AS 09.05.015 provides several 22 specific grounds for jurisdiction that fit the factual basis for this lawsuit, the court’s 23 exercise of jurisdiction over Barnett is nonetheless constrained by federal due process. 24 That is, the statute sets forth situations where the court has jurisdiction over an out-of- 25 26 27 28 7 Yahoo! Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, 433 F.3d 1199 1205 (9th Cir. 2006). 8 Doc. 39 at p. 17. -4- 1 state defendant, but only “to the maximum extent permitted by due process under the 2 federal constitution.”9 “Thus, ‘the statutory and constitutional requirements merge into a 3 single due process test,’ such that an analysis of [Barnett’s] jurisdictional argument 4 under the federal Due Process Clause is dispositive.”10 5 6 7 8 9 10 The Ninth Circuit uses a three-part test to determine whether a defendant has sufficient contacts to be subject to specific personal jurisdiction: (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and 11 12 (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e., it must be reasonable.11 13 “The plaintiff bears the burden of satisfying the first two prongs of the test. If the plaintiff 14 fails to satisfy either of these prongs, personal jurisdiction is not established in the forum 15 state.”12 If the plaintiff succeeds, the burden shifts to the defendant to make a 16 compelling case that exercising jurisdiction over him would be unreasonable.13 17 Under the first prong of the test, the court engages in either a “purposeful 18 availment” analysis for contract and negligence cases or a “purposeful direction” 19 analysis for intentional tort cases.14 Here, Barnett is not alleged to have engaged in any 20 21 22 9 Harper v. BioLife Energy Systems, Inc., 426 P.3d 1067, 1071 (internal quotation marks omitted). 10 23 Samson Tug & Barge Co., Inc. v. Koziol, 869 F. Supp. 2d 1001, 1008 (D. Alaska 2012) (quoting Ins. Co. of N. Am. v. Marina Salina Cruz, 649 F.2d 1266, 1269 (9th Cir. 1981)). 24 11 25 12 26 27 28 Morrill v. Scott Fin. Corp., 873 F.3d 1136, 1142 (9th Cir. 2017) (quotation omitted). Id. (quotation omitted). 13 Id. 14 See Holland Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 460 (9th Cir. 2007) (rejecting the plaintiff’s request to apply the purposeful direction analysis–referred to as the -5- 1 intentional tortious conduct. Wild West’s complaint alleges negligence claims, a 2 contract-based claim, and a UTPA claim. Accordingly, the court must apply the 3 “purposeful availment” analysis.15 4 The purposeful availment analysis requires the court to look at whether the non- 5 resident defendant “performed some type of affirmative conduct which allows or 6 promotes the transaction of business within the forum state.”16 Typically, this requires 7 evidence of a defendant’s actions that occurred in the forum state, such as executing or 8 performing a contract there.17 The focus must be on the “actions by the defendant 9 himself that create a substantial connection with the forum State.”18 The defendant’s 10 actions in and connections with the forum State must be of a nature that “he should 11 reasonably anticipate being haled into court there.”19 12 Barnett’s connections to Alaska are minimal. He came to the state twice for 13 recreational purposes. He did not engage in business activities while here. The only 14 business contacts alleged are telephone conversations between Barnett and Meinhardt 15 while Barnett was in South Dakota and Meinhardt was in Alaska. The complaint alleges 16 Meinhardt talked to Barnett in his role as representative or agent of Superior 17 Ammunition about an ammunition order. Barnett acknowledges that in his capacity as a 18 representative of Superior Ammunition he took phone calls and processed orders over 19 the phone. He acknowledges that Meinhardt called Superior Ammunition and placed an 20 21 22 Calder effects test– “because it is well established that the Calder test applies only to intentional torts, not to the breach of contract and negligence claims presented here.”). 15 23 The court agrees with and adopts Barnett’s further reasoning as to why the purposeful availment analysis applies over the purposeful direction analysis. Doc. 26 at p. 12, n.6. 24 16 25 17 26 Boschetto v. Hansing, 539 F.3d 1011,1016 (9th Cir. 2008) (quotation omitted). Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). 18 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (internal quotation marks 27 omitted). 28 19 World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). -6- 1 order for ammunition that is the subject of the litigation. He acknowledges that he may 2 have been the representative who took the phone call and communicated with 3 Meinhardt about the order. Telephone conversations, even those involving business 4 negotiations, “simply do not qualify as purposeful activity invoking the benefits and 5 protection of the [forum] state.”20 Moreover, Barnett states that any communications 6 would have originally been initiated by Meinhardt. Wild West does not contradict this 7 assertion. 8 As noted above, the Court can only consider the contact that Barnett himself 9 created with the forum. That is, Superior Ammunition’s contacts with Alaska cannot be 10 attributed or imputed to Barnett.21 Barnett avers that he did not execute a contract with 11 Meinhardt, manufacture the ammunition, or ship the ammunition.22 Wild West does not 12 contend otherwise. Nor does Wild West contend that Barnett himself made any 13 solicitations or initiated any contact with Meinhardt. Barnett’s contacts are simply 14 insufficient to constitute purposeful availment, and consequently the court’s exercise of 15 jurisdiction over Barnett would deprive him of due process of law.23 16 17 Even if Wild West had somehow been able to show purposeful availment and the proper connection between Barnett’s forum-related activities and the claims, the court 18 19 20 21 22 23 24 25 26 27 28 20 Peterson v. Kennedy, 771 F.2d 1244, 1262 (9th Cir. 1985); see also Hunt v. Erie Ins. Grp., 728 F.2d 1244 (9th Cir. 1984) (“The mere fact that [defendant] communicated with [plaintiff] in the state, and may have committed a tort in the exchange of correspondence, does not show that [defendant] purposefully availed itself of the privilege of conducting business in California.”); Green Country Crude, Inc. v. Avant Petroleum, Inc., 648 F. Supp. 1443, 1451 (D. Kan. 1986) (“The mere negotiation of a sales transaction, or placement of an order for goods, over the telephone with person residing in [the forum state] does not invoke the benefits and projections of the law of [the] state.”). 21 Calder v. Jones, 465 U.S. 783, 790 (1984) (stating that for individuals who acted in a corporate setting, each defendant’s contacts with the state must be assessed individually). 22 The declaration asserts that at the request of Meinhardt, Superior Ammunition shipped the subject ammunition to an address in the State of Washington. Doc. 27 at p. 3 at para. 16. 23 Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1155 (9th Cir. 2006) (noting that if the plaintiff fails to show the first prong of the test, the court need not address the other prongs). -7- 1 agrees with Barnett’s assessment that the court’s exercise of specific jurisdiction here 2 would be unreasonable.24 3 Wild West alternatively asks the court to deny Barnett’s motion because he 4 voluntarily submitted to jurisdiction in the state or waived his ability to challenge 5 personal jurisdiction. Wild West relies on In re Estate of Fields 25 for the proposition that 6 Barnett consented to the court’s jurisdiction when he filed an entry of appearance that 7 was not limited. For the reasons articulated in Barnett’s reply at docket 45, which the 8 court adopts herein, In re Estate of Fields is inapposite. Unlike that case, the party 9 challenging jurisdiction is the defendant, and he did not appear without challenging 10 11 jurisdiction. Wild West argues that Barnett waived any challenge to personal jurisdiction by 12 participating in the litigation—issuing a subpoena, giving and receiving mandatory initial 13 disclosures, and giving and receiving preliminary witness lists. A defendant abandons a 14 personal jurisdiction defense when he fails to raise the issue in either a responsive 15 pleading or a Rule 12 motion.26 Barnett raised the defense in his answer. However, 16 even if a defendant preserves the defense by reciting it in an answer, it may 17 nonetheless be forfeited if the defendant thereafter substantially participates in the 18 litigation without actively pursing his Rule 12(b)(2) defense.27 While the court notes that 19 Barnett did not indicate his intent to file a motion challenging jurisdiction in the 20 scheduling and planning order and filed the motion more than six months after the case 21 was removed , it nonetheless finds that Barnett may pursue his constitutional defense 22 given that the case has not proceeded to the merits. 23 24 24 25 25 26 27 28 See doc. 26 at pp. 17-18. 219 P.3d 995 (Alaska 2009). 26 Fed. R. Civ. P. 12(h)(1) 27 See Enters. Int’l, Inc. v. Pasaban, S.A., 2012 WL 2576359, at * 3(W.D. Wash. July 3, 2012); 5C Wright & Miller, Federal Practice & Procedure, § 1391 (3d ed.). -8- 1 2 3 4 V. CONCLUSION Based on the preceding discussion, Barnett’s motion at docket 26 is GRANTED. Barnett is dismissed from this case. DATED this 23rd day of February 2019. 5 6 /s/ JOHN W. SEDWICK SENIOR JUDGE, UNITED STATES DISTRICT COURT 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9-
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
