Applied Underwriters, Inc.; Applied Risk Services, Inc. v. Combined Management, Inc.

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable James V. Selna, United States District Judge for the
Central District of California, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
APPLIED UNDERWRITERS, INC.;
APPLIED RISK SERVICES, INC.,
Plaintiffs - Appellants,
v.
COMBINED MANAGEMENT, INC.,
Defendant - Appellee.
No. 08-15014
D.C. No. CV07-05129-BZ
MEMORANDUM *
Appeal from the United States District Court
for the Northern District of California
Bernard Zimmerman, Magistrate Judge, Presiding
Argued and Submitted March 9, 2010
San Francisco, California
Before: REINHARDT and BYBEE, Circuit Judges, and SELNA, ** District Judge.
Plaintiffs-Appellants Applied Underwriters, Inc. and Applied Risk Services,
Inc. (collectively, “Applied”) brought a breach of contract action in California
against Defendant-Appellee Combined Management, Inc. (“Combined”). The
FILED
MAR 24 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

2
district court granted Combined’s motion to dismiss for lack of personal
jurisdiction. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review a dismissal for lack of personal jurisdiction de novo. Pebble
Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006). If the district court
decides the motion without an evidentiary hearing, as it did here, then the plaintiff
need only make a prima facie showing of jurisdictional facts. See id.
Combined is a Maine corporation that does not regularly conduct business
outside of Maine. The Applied entities are Nebraska corporations, but they are
licensed to do business in California and their “home office” is in San Francisco,
California. The contract at issue is a workers compensation insurance policy that
was negotiated exclusively via telephone and mail between Applied employees in
California and Combined employees in Maine. Activities related to the
administration of the policy were conducted at Applied’s office in Nebraska.
Since California’s long-arm statute is coextensive with federal due process,
the jurisdictional analysis is the same under both state law and federal due process.
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800-01 (9th Cir. 2004);
Cal. Civ. Proc. Code § 410.10. Due process requires that a nonresident defendant
“have certain minimum contacts with [the forum] such that the maintenance of the
suit does not offend ‘traditional notions of fair play and substantial justice.’” Int’l

-- 2 of 4 --

3
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311
U.S. 457, 463 (1940)). Applied concedes that Combined’s contacts with California
are insufficient to establish general jurisdiction.
This circuit employs a three-part test to determine whether specific
jurisdiction exists. See Pebble Beach, 453 F.3d at 1155. Here, the first prong of
the test, purposeful availment, is not met. “To have purposefully availed itself of
the privilege of doing business in the forum, a defendant must have ‘performed
some type of affirmative conduct which allows or promotes the transaction of
business within the forum state.’” Boschetto v. Hansing, 539 F.3d 1011, 1016 (9th
Cir. 2008) (quoting Sher v. Johnson, 911 F.2d 1357, 1362 (9th Cir. 1990)).
Applied argues that purposeful availment is established because Combined
negotiated the contract via telephone and mail with Applied’s employees in
California and because Combined initially reached out to it in California when
Combined’s broker sent an email to an Applied employee based in California.
Combined disputes that it contacted Applied first. Even if Combined initiated the
transaction through its broker, that initial contact and the subsequent negotiations
are insufficient on their own to establish purposeful availment because “ordinarily
‘use of the mails, telephone, or other international communication simply do not
qualify as purposeful activity invoking the benefits and protection of the [forum]

-- 3 of 4 --

4
state.’” Roth v. Garcia Marquez, 942 F.2d 617, 622 (9th Cir. 1991) (quoting
Peterson v. Kennedy, 771 F.2d 1244, 1262 (9th Cir. 1985)).
Applied also argues that the contract envisioned continuing and wide-
reaching contacts with California. See id. (“The Burger King Court, in finding
jurisdiction, emphasized that the Michigan franchisee defendant had entered into a
relationship that ‘envisioned continuing and wide-reaching contacts with Burger
King in [the forum].’” (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462,
480 (1985))). However, there is no evidence in the record that the contract
contemplated performance in California.
Finally, Applied argues that Combined should be judicially estopped from
asserting that it lacks minimum contacts with California because it previously took
the opposite position before a Nebraska district court. We find that Combined’s
positions before the two district courts were not clearly inconsistent and therefore
decline to apply judicial estoppel.
Because Applied has failed to make a prima facie showing of purposeful
availment, we affirm the dismissal for lack of personal jurisdiction. See Boschetto,
539 F.3d at 1016 (“[I]f the plaintiff fails at the first step, the jurisdictional inquiry
ends and the case must be dismissed.”).
AFFIRMED.

-- 4 of 4 --