Mower v. Nibley , 382 P.3d 614 ( 2016 )

2016 UT App 174THE UTAH COURT OF APPEALS
THOMAS MOWER,
Appellant,
v.
RICHARD MCBRIDE NIBLEY,
Appellee.
Memorandum Decision
No. 20150410-CA
Filed August 18, 2016
Fourth District Court, Provo Department
The Honorable Claudia Laycock
No. 120401924
Douglas B. Thayer and Jordan K. Cameron,
Attorneys for Appellant
Mark F. James and Mitchell A. Stephens, Attorneys
for Appellee
JUDGE KATE A. TOOMEY authored this Memorandum Decision, in
which JUDGE J. FREDERIC VOROS JR. and SENIOR JUDGE PAMELA T.
GREENWOOD concurred.1
TOOMEY, Judge:
¶1 Thomas Mower appeals the district court’s dismissal of
his suit against Richard McBride Nibley, a resident of Japan, for
lack of general personal jurisdiction. Mower sought
compensatory and punitive damages for the destruction of
thousands of copies of a self-published book, titled ‚Straight
Talk from an American Cowboy: How to Achieve Business
1. Senior Judge Pamela T. Greenwood sat by special assignment
as authorized by law. See generally Utah R. Jud. Admin. 11-
201(6).
Mower v. Nibley
Success in MLM,‛ committed to Nibley’s possession. On appeal,
we must determine whether Nibley waived his right to object to
personal jurisdiction and whether Nibley is subject to general
personal jurisdiction as a result of his contacts with the state. As
to the first question, we conclude that he did not. And because
he is not domiciled in Utah and lacks sufficient contacts with the
state, we conclude Utah cannot exercise general personal
jurisdiction over Nibley. We therefore affirm.
BACKGROUND
¶2 In 2006, Mower wrote and self-published his book.2 He
then paid for its translation into Japanese and entrusted Nibley
with tens of thousands of copies to sell in Japan on Mower’s
behalf. At that time Nibley was employed by SISEL
International, LLC, a Utah company Mower owned, but at some
point before Mower began this action, Nibley’s employment was
terminated.
¶3 Shortly after Mower arranged for Nibley to sell his book,
Mower was sentenced to serve a thirty-three-month sentence in
federal prison for tax fraud. See United States v. Thompson, 518
F.3d 832, 838–49 (10th Cir. 2008). During his prison term, Mower
did not communicate with Nibley regarding the books. Nibley
continued selling the books, purportedly using the revenue to
fund the operating costs of selling them. As a favor, one of
Nibley’s friends in Japan agreed to store the books free of
charge. But by 2009, the proceeds from book sales were no
2. ‚‘When determining whether the trial court correctly granted
a motion to dismiss, we accept the factual allegations in the
complaint as true and consider them, and all reasonable
inferences to be drawn from them, in the light most favorable to
the nonmoving party.’‛ Hunsaker v. American HealthCare Capital,
2014 UT App 275, ¶ 9, 340 P.3d 788 (quoting Fenn v. Mleads
Enters., Inc., 2006 UT 8, ¶ 2, 137 P.3d 706).
20150410-CA 2 2016 UT App 174Mower v. Nibley
longer enough to support operations, and the next year sales had
slowed to a trickle, if not to a complete stop. Nibley’s friend then
informed Nibley that he could no longer store the books without
charge, and Nibley allowed the warehouse owner to destroy the
remaining books in March 2010.
¶4 Nibley has lived in Japan for more than thirty years, and
has visited Utah only twice in the past ten years: once in 2008 for
his father’s funeral and again in 2011 for the birth of his
granddaughter. He had no direct personal contact with Mower
during either visit, but SISEL International served process on
Nibley for an unrelated legal action while he was in Utah for his
father’s funeral.
¶5 As relevant to Mower’s arguments, Nibley owned a
partial interest in a rental property in Utah until it was sold at a
sheriff’s sale shortly after Mower filed his complaint in 2013.
Nibley’s wife retains her own partial interest in the property.
According to Nibley’s wife, ‚*T+here is no formal written
agreement‛ regarding rent, and the renters pay a portion of the
‚rent money into *Nibley’s+ bank account on a monthly basis.‛
¶6 In January 2013, Mower served Nibley in Japan, through a
process server operating under the auspices of the United States
Consulate, suing under theories of conversion, unjust
enrichment, accounting, and constructive trust. Specifically, he
alleged that Nibley profited and continues to profit from the sale
of Mower’s books and demanded that Nibley return any books
still in his possession. Nibley did not respond or appear to
defend himself, and the court clerk entered default. See Utah R.
Civ. P. 55(a). Nearly twenty months later, Mower filed a motion
to enter judgment for the amount of $629,200, with post-
judgment interest.
¶7 In November 2014, Nibley responded with a pro se fill-in-
the-blank opposition form, in which he laid out his inability to
sell the books and the events leading up to their destruction. He
denied any wrongdoing and any responsibility for the
20150410-CA 3 2016 UT App 174Mower v. Nibley
destruction of the books. He did not raise a personal jurisdiction
objection, but did ask the court to deny Mower’s motion to enter
judgment and asked to dismiss the case.
¶8 Before a scheduled hearing on Mower’s motion to enter
judgment, Nibley filed two documents through counsel. In one,
he moved the court to set aside entry of default and to dismiss
Mower’s action for lack of personal jurisdiction. In the other, he
explained that his counsel’s appearance was limited to
challenging jurisdiction in order to void the entry of default, and
was not a general appearance.
¶9 At the hearing on the motions, Mower argued Nibley had
waived his right to challenge personal jurisdiction by
‚participating in this case‛ and by failing to raise the defense in
his initial response. The court determined that Nibley’s filing of
his pro se opposition and sending emails to Mower’s counsel
and court clerks did not amount to the degree and type of
participation sufficient to waive Nibley’s right to challenge
personal jurisdiction. Mower conceded that Utah could not
exercise specific personal jurisdiction over Nibley, and the court
rejected Mower’s claim that Nibley’s contacts with Utah were
sufficient to establish general personal jurisdiction. Accordingly,
the court granted Nibley’s motion to set aside entry of default
and dismissed Mower’s complaint for lack of personal
jurisdiction. Mower appeals.
ISSUES AND STANDARDS OF REVIEW
¶10 On appeal, Mower argues the district court erred in
dismissing his suit for lack of general personal jurisdiction. We
first address his argument that Nibley waived the right to
challenge personal jurisdiction. If Nibley did not, we must then
decide whether Nibley’s contacts with Utah are sufficient to
establish general personal jurisdiction.
20150410-CA 4 2016 UT App 174Mower v. Nibley
¶11 Waiver presents a mixed question of law and fact. Pledger
v. Gillespie, 1999 UT 54, ¶ 16, 982 P.2d 572. ‚*W+hether the trial
court employed the proper standard of waiver presents a legal
question which is reviewed for correctness, but the actions or
events allegedly supporting waiver are factual in nature and
should be reviewed as factual determinations, to which we give
a district court deference.‛ Id.¶12 ‚‘*A+n appeal from a pretrial jurisdictional decision made
only on documentary evidence presents legal questions which
we review for correctness.’‛ Hunsaker v. American HealthCare
Capital, 2014 UT App 275, ¶ 9, 340 P.3d 788 (quoting Fenn v.
Mleads Enters., Inc., 2006 UT 8, ¶ 7, 137 P.3d 706). Further, ‚if the
trial court proceeds on documentary evidence alone to
determine whether personal jurisdiction is proper, ‘the plaintiff
is only required to make a prima facie showing of personal
jurisdiction.’‛ Id. (quoting Neways, Inc. v. McCausland, 950 P.2d
420, 422 (Utah 1997)).
ANALYSIS
I. Waiver
¶13 Mower contends Nibley’s chance to challenge jurisdiction
ended when Nibley began participating in the suit by filing the
November 2014 opposition to Mower’s motion to enter
judgment without objecting to the court’s jurisdiction.3
3. On appeal, Nibley contends Mower’s waiver argument is
unpreserved. We disagree. ‚An issue is preserved for appeal
when it has been presented to the district court in such a way
that the court has an opportunity to rule on *it+.‛ Patterson v.
Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828 (alteration in original)
(citation and internal quotation marks omitted). Here, although
Mower did not raise the issue in his written opposition to
(continued<)
20150410-CA 5 2016 UT App 174Mower v. Nibley
¶14 Parties can waive an objection to jurisdiction by expressly
waiving or by participating in the litigation without timely
raising an objection or defense in a responsive pleading, such as
an answer or reply. See Utah R. Civ. P. 12(b)(2), (h). But the Utah
Supreme Court has held that in some circumstances a
defendant’s pro se response does not equate to a responsive
pleading. See, e.g., Parry v. Ernst Home Center Corp., 779 P.2d 659,
661 (Utah 1989) (determining that the defendant ‚did not waive
its jurisdictional claim through its pro se response‛ because it
had not asked for affirmative relief from the court); Fibreboard
Paper Products Corp. v. Dietrich, 475 P.2d 1005, 1005–06 (Utah
1970) (concluding that the defendant’s pro se letter denying
responsibility for the bill sued upon did not constitute an answer
or a general appearance). Indeed, even when the defendant
captions his pro se response ‚answer,‛ if the defendant merely
denies responsibility for the injury or fails to ask for affirmative
relief, the court has ruled that such a response cannot be
construed as an answer or general appearance. See Parry, 779
P.2d at 661; cf. Trembly v. Mrs. Fields Cookies, 884 P.2d 1306, 1310
n.2 (Utah Ct. App. 1994) (‚*T+he substance, not caption, of a
motion is dispositive in determining the character of the
motion.‛). Thus, if the defendant’s only participation in the
litigation before objecting to personal jurisdiction is a pro se
response that does not amount to a pleading or answer, the
defendant has not waived a jurisdiction objection. See id.¶15 Here, for nearly two years after Mower filed this action,
Nibley did not respond or communicate with the court. Between
January and June of 2014, Nibley exchanged emails with
Mower’s counsel and corresponded with court clerks. But the
only document he filed with the court was his pro se
opposition—a typewritten boilerplate opposition form. In his
(id.20150410-CA 6 2016 UT App 174Mower v. Nibley
opposition, Nibley denied responsibility for the destruction of
the books and emphasized that all activities regarding the book
occurred in Japan. He did not request a hearing. Rather, in one
line, he merely asked the court to deny Mower’s motion for
entry of judgment. Furthermore, Nibley never made an
appearance with the court. Thus, we conclude that the district
court did not err when it found that Nibley’s pro se opposition
did not constitute a responsive pleading under rule 12 of the
Utah Rules of Civil Procedure, and that Nibley did not waive his
personal jurisdiction objection.
II. Personal Jurisdiction
¶16 Mower argues that ‚*w+hen taken together, *Nibley’s+
foregoing contact with Utah has been, and continues to be,
systematic and continuous, even though he is physically located
in Japan.‛
¶17 ‚The Due Process Clause of the Fourteenth Amendment
constrains a State’s authority to bind a nonresident defendant to
a judgment of its court.‛ Walden v. Fiore, 134 S. Ct. 1115, 1121
(2014). ‚Although a nonresident’s physical presence within the
territorial jurisdiction of the court is not required, the
nonresident generally must have ‘certain minimum contacts . . .
such that the maintenance of the suit does not offend the
traditional notions of fair play and substantial justice.’‛ Id.(omission in original) (quoting International Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945)).
¶18 ‚The authority of the state to hale a nonresident into a
state court hinges on the ability to establish personal
jurisdiction.‛ Pohl, Inc. of Am. v. Webelhuth, 2008 UT 89, ¶ 9, 201
P.3d 944. ‚There are two categories of personal jurisdiction:
specific and general jurisdiction.‛ Id. In Abbott G.M. Diesel, Inc. v.
Piper Aircraft Corp., the Utah Supreme Court clarified the
distinction between specific jurisdiction and general personal
jurisdiction. 578 P.2d 850, 853 n.6 (Utah 1978). It explained that
the most significant difference between general personal
20150410-CA 7 2016 UT App 174Mower v. Nibley
jurisdiction and specific personal jurisdiction is the degree of the
defendant’s relationship with the forum state. See id. The court
noted that specific personal jurisdiction ‚is the concept
applicable to a long-arm statute, which requires only minimum
local contacts.‛ Id. ‚Where the defendant has only minimum
contacts with the forum, personal jurisdiction may be asserted
only on claims arising out of the defendant’s forum-state
activity.‛ Id. By contrast, general personal jurisdiction requires
something much more than minimum contacts; it requires
‚substantial and continuous local activity.‛ Id. ‚Once that is
shown, defendant is subject to litigation related or unrelated to
that business, as he is a ‘pseudo resident.’‛ Roskelley & Co. v.
Lerco, Inc., 610 P.2d 1307, 1311 (Utah 1980). Thus, whether the
forum state can assert personal jurisdiction over the defendant
‚will vary with the quality and nature of the defendant’s
activity, but it is essential in each case that there be some act by
which the defendant purposefully avails itself of the privilege of
conducting activities within the forum State, thus invoking the
benefits and protections of its laws.‛ Abbott, 578 P.2d at 853 n.10
(citing Hanson v. Denckla, 357 U.S. 235, 253 (1958)).
¶19 Because Mower conceded that Utah cannot exercise
specific personal jurisdiction over Nibley, this case focuses on
the court’s ability to exercise general personal jurisdiction. The
United States Supreme Court has explained that, for purposes of
determining general personal jurisdiction, ‚[a] person may
submit to a State’s authority in a number of ways.‛ J. McIntyre
Mach., Ltd. v. Nicastro, 564 U.S. 873, 880–81 (2011). For example, a
person’s ‚explicit consent‛ or physical ‚[p]resence within a State
at the time suit commences through service of process‛ can
support the exercise of general personal jurisdiction. Id. at 880.
Additionally, ‚[c]itizenship or domicile—or, by analogy,
incorporation or principal place of business for corporations—
also indicates general submission to a State’s powers.‛ Id. at 881.
In Daimler AG v. Bauman, 134 S. Ct. 746 (2014) and Goodyear
Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011), the
Court reiterated this proposition; ‚‘For an individual, the
paradigm forum for the exercise of general jurisdiction is the
20150410-CA 8 2016 UT App 174Mower v. Nibley
individual’s domicile; for a corporation, it is an equivalent place,
one in which the corporation is fairly regarded as at home.’‛
Daimler, 134 S. Ct. at 760 (quoting Goodyear, 564 U.S. at 924). ‚By
treating general jurisdiction over corporations based on
continuous and systematic contacts as analogous to jurisdiction
at an individual’s domicile, the Court may be signaling that such
contacts will not separately establish a basis for general
jurisdiction over an individual outside the individual’s domicile
or residence.‛ Michael H. Hoffheimer, General Personal
Jurisdiction After Goodyear Dunlop Tires Operations, S.A. v.
Brown, 60 U. Kan. L. Rev. 549, 601 (2012).4
4. We note the United States Supreme Court has decided few
cases, and Utah appellate courts even fewer, that have discussed
the sufficiency of a defendant’s contacts with the state to
establish general personal jurisdiction. See Daimler AG v. Bauman,
134 S. Ct. 746, 755–56 (2014) (explaining that there are few ‚post-
International Shoe opinions on general jurisdiction‛); Goodyear
Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 925 (2011)
(explaining that only a handful of decisions have considered
‚whether an out-of-state corporate defendant’s in-state contacts
were sufficiently ‘continuous and systematic’ to justify the
exercise of general jurisdiction over claims unrelated to those
contacts‛).
Indeed, since International Shoe Co. v. Washington, 326 U.S.
310 (1945), the United States Supreme Court’s ‚decisions have
elaborated primarily on circumstances that warrant the exercise
of specific jurisdiction,‛ Goodyear, 564 U.S. at 924, and the
Supreme Court’s decisions have largely involved corporate
defendants, rather than individual defendants. See 4 Charles
Alan Wright et al., Federal Practice & Procedure § 1069.5 (3d ed.
1998) (‚By and large the preponderance of cases in the federal
courts raising jurisdictional questions during the past several
decades have involved corporations.‛); Mary Twitchell, The
Myth of General Jurisdiction, 101 Harv. L. Rev. 610, 633 (1988)
(‚Courts routinely exercise jurisdiction over individual
(continued<)
20150410-CA 9 2016 UT App 174Mower v. Nibley
¶20 If an individual defendant has neither consented to a
state’s exercise of general personal jurisdiction nor has been
personally served in the state, for purposes of determining
whether a state may exercise general personal jurisdiction over
him, we must therefore look to the individual’s domicile. See
Daimler, 134 S. Ct. at 760–61; Goodyear, 564 U.S. at 924. Under
federal jurisprudence, ‚an individual has only one domicile,‛
Martinez v. Bynum, 461 U.S. 321, 340 (1983), which ‚usually
requires bodily presence plus an intention to make the place
one’s home,‛ Lilly v. Lilly, 2011 UT App 53, ¶ 13, 250 P.3d 994(citation and internal quotation marks omitted). See also
Restatement (Second) of Conflict of Laws § 11 (Am. Law Inst.
2016) (‚Every person has a domicil[e] at all times and, at least for
the same purpose, no person has more than one domicil[e] at a
time.‛); Domicile, Black’s Law Dictionary (9th ed. 2009) (defining
‚domicile‛ as ‚*t+he place at which a person has been physically
present and that the person regards as home; a person’s true,
fixed, principal, and permanent home‛).
(564 U.S.
915 (holding that North Carolina’s courts could not exercise
general personal jurisdiction over a corporate defendant);
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408(1984) (determining that Texas courts could not exercise general
personal jurisdiction over a nonresident corporate defendant);
Perkins v. Benguet Consol. Mining Co., 342 U.S. 437 (1952) (holding
that Ohio courts could exercise general personal jurisdiction
over a foreign corporation without offending due process); Ho v.
Jim’s Enters., Inc., 2001 UT 63, 29 P.3d 633 (considering whether
Utah could exercise general personal jurisdiction over a
corporate defendant).
20150410-CA 10 2016 UT App 174Mower v. Nibley
¶21 Here, it cannot be disputed that Nibley’s domicile is in
Japan—his home is in Japan and he has made clear that he
intends to stay there. Nibley has lived in Japan for thirty years,
his wife is in Japan, he no longer owns property in Utah, and he
has only visited Utah twice in the last ten years. Thus, under the
recent string of cases from the United States Supreme Court,
Utah may not exercise general personal jurisdiction over Nibley
because he is not domiciled here. We therefore conclude the
district court did not err in granting Nibley’s motion to dismiss
for lack of personal jurisdiction.
¶22 Even if we accept Mower’s argument and assume that the
analysis applicable to whether a state may exercise general
personal jurisdiction over a corporate defendant applies to
individual defendants, we cannot conclude that Utah has the
authority to bind Nibley to judgment in its courts.
¶23 In the context of corporate defendants, the Utah Supreme
Court recently explained that for a state to exercise general
personal jurisdiction, a corporation’s affiliations with the state
must be more than just continuous and systematic. Rather, the
defendant’s contacts must be ‚‘so ‚continuous and systematic‛
as to render [them] essentially at home in the forum State.’‛
ClearOne, Inc. v. Revolabs, Inc., 2016 UT 16, ¶ 37, 369 P.3d 1269(quoting Daimler, 134 S. Ct. at 761). The court emphasized ‚that a
defendant’s contacts with the state must be so extensive as to be
‘comparable to a domestic enterprise in that State.’‛ Id. (quoting
Daimler, 134 S. Ct. at 758 n.11).
¶24 There is no bright-line rule to determine which types of
contacts are sufficient to render a defendant ‚essentially at
home‛ in a forum state. A jurisdictional determination must
therefore be based on a realistic evaluation of the quality of the
relationship among the defendant, the controversy, and the
forum. See Ho v. Jim’s Enters., Inc., 2001 UT 63, ¶ 8, 29 P.3d 633.
‚For a State to exercise jurisdiction consistent with due process,
that relationship must arise out of contacts that the ‘defendant
himself’ creates with the forum, and must be analyzed with
20150410-CA 11 2016 UT App 174Mower v. Nibley
regard to the defendant’s contacts with the forum itself, not with
persons residing there.‛ Walden v. Fiore, 134 S. Ct. 1115, 1118
(2014) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475
(1985)); see also id. at 1122–23. Thus, ‚the plaintiff cannot be the
only link between the defendant and the forum.‛ Id. at 1122–23.
¶25 In his complaint, the only fact Mower asserted to
demonstrate Nibley had sufficient contacts with Utah to exercise
personal jurisdiction over him was that Nibley used to work for
SISEL International, a Utah-based international company. In
opposition to Nibley’s motion to dismiss for lack of personal
jurisdiction, Mower asserted that Nibley has had to appear and
defend ‚in at least two other litigation matters in Utah.‛ He
further argued that Utah could maintain general personal
jurisdiction over Nibley because, at the time Nibley was served
in this suit, Nibley ‚was the record owner of property located [in
Utah].‛ Nibley ‚continues to collect rental payments for
property in Utah and deposits the money collected into his bank
account,‛ which Mower argued ‚constitut*es+ ‘substantial and
continuous local activity.’‛ Finally, Mower argued that their
business interactions regarding the book sales equated to Nibley
transacting business within Utah because Mower is a resident of
Utah.
¶26 When viewed in the light of the high standard for general
personal jurisdiction set by the United States Supreme Court, we
cannot conclude that Mower demonstrated that Nibley has
sufficient contacts with Utah to render him ‚essentially at home‛
here. First, Mower’s arguments rely on Nibley’s dealings with
Mower and SISEL International, not the state. But Nibley’s
contacts with Mower, especially those regarding this suit, cannot
drive the jurisdictional analysis. See ClearOne, 2016 UT 16, ¶ 26
(citing Walden, 134 S. Ct. at 1122 to explain that due process
requires that ‚the relationship [between the defendant, the
litigation, and forum+‛ state must arise ‚out of contacts the
defendant himself creates‛ (alteration in original) (citation and
internal quotation marks omitted)); accord Abbott G.M. Diesel, Inc.
v. Piper Aircraft Corp., 578 P.2d 850, 853 n.10 (Utah 1978). At the
20150410-CA 12 2016 UT App 174Mower v. Nibley
evidentiary hearing, the parties agreed that all activities
regarding the books occurred in Japan. Indeed, Mower even
conceded that Utah could not exercise specific personal
jurisdiction over Nibley. Nibley also demonstrated that he was
not employed by SISEL International when Mower initiated this
suit. Thus, Nibley’s relationship with SISEL International and
Mower have little to no bearing on our jurisdictional analysis.
¶27 Second, Nibley’s ownership of property in Utah alone
cannot support a sufficient relationship with the state to
establish general personal jurisdiction. Moreover, a realistic
evaluation of the quality of Nibley’s relationship with the forum
shows that the majority of Nibley’s contacts with Utah are
merely secondary to his property ownership.
¶28 Although Utah courts have not addressed this issue
directly, the United States Supreme Court has explained that
the presence of property in a State may bear on the
existence of jurisdiction by providing contacts
among the forum state, the defendant, and the
litigation. For example, when claims to the
property itself are the source of the underlying
controversy between the plaintiff and the
defendant, it would be unusual for the State where
the property is located not to have jurisdiction. In
such cases, the defendant’s claim to property
located in the State would normally indicate that
he expected to benefit from the State’s protection of
his interest.
Shaffer v. Heitner, 433 U.S. 186, 207–08 (1977) (footnotes omitted).
The Shaffer Court further explained that the ‚presence of
property may also favor jurisdiction in cases such as in suits for
injury suffered on the land of an absentee owner, where the
defendant’s ownership of the property is conceded but the cause
20150410-CA 13 2016 UT App 174Mower v. Nibley
of action is otherwise related to rights and duties growing out of
that ownership.‛ Id. at 208.
¶29 But the existence of property in the forum state does not
automatically confer jurisdiction over the defendant. See id. at
211–12. The Shaffer Court emphasized that while ‚jurisdiction
based solely on the presence of property satisfies the demands of
due process, . . . it is not decisive.‛ Id. Thus, a defendant’s
ownership of property in the forum state is not dispositive—the
ownership only increases the likelihood of a defendant having
more significant contacts with the state. See id. Therefore, a court
must still consider the relationship among the defendant, the
litigation, and the state to make a fair determination of whether
jurisdiction exists.
¶30 Mower argues that the requisite level of contacts is
reached because Nibley not only owned property in Utah, but
also pays taxes in Utah and collects monthly rents. Any such
contacts are merely incidental to his ownership of property
within the forum state, however, and Mower has offered no
evidence that Nibley actually pays taxes on the property. Indeed,
from the record, the only continuous or systematic contact
Nibley seems to have with Utah is a monthly deposit of rental
income in his bank account. Mower has not provided any
evidence demonstrating otherwise.
¶31 As the Utah Supreme Court recently clarified, ‚The
limited number of Supreme Court cases on this point clearly
require something more than just some revenue or contracts
to qualify the *defendant+ as ‘at home’ in that state.‛
ClearOne, Inc. v. Revolabs, Inc., 2016 UT 16, ¶ 40, 369 P.3d 1269.
‚Indeed, as a matter of common sense, there are likely
many companies that have no official operations in Utah that
still derive some revenue from Utah consumers. It would strain
the Supreme Court’s standard of general jurisdiction beyond
recognition‛ to conclude that an individual domiciled in Japan
can fairly be said to be ‚essentially at home‛ in Utah merely
because he once owned a rental property and continues to
20150410-CA 14 2016 UT App 174Mower v. Nibley
perform the necessary secondary obligations associated with his
wife’s ownership of the property, such as receiving rent and
paying taxes. See id. ¶ 41.
¶32 Of course, the presence of property in a state may have an
impact on the personal jurisdiction inquiry. Indeed, ‚when
claims to the property itself are the source of the underlying
controversy between the plaintiff and the defendant, it would be
unusual for the State where the property is located not to have
jurisdiction.‛ Shaffer, 433 U.S. at 207. Yet, when the property that
serves as the basis for jurisdiction is completely unrelated to the
plaintiff’s cause of action, jurisdiction is not reasonable. See id. at
207–08. The fact that renters deposit monthly rent for a single
property that Nibley used to own in Utah is not contact ‚so
extensive as to be ‘comparable to a domestic enterprise’‛ in
Utah. See ClearOne, 2016 UT 16, ¶ 37 (quoting Daimler AG v.
Bauman, 134 S. Ct. 746, 758 n.11 (2014)). We therefore conclude
that the district court did not err in dismissing Mower’s
complaint for lack of personal jurisdiction.
CONCLUSION
¶33 In sum, because Nibley’s pro se opposition was not a
responsive pleading, we conclude the district court did not err
when it found that Nibley had not waived his personal
jurisdiction objection. Moreover, because Nibley—a resident of
Japan—is not domiciled in Utah, we conclude that Utah courts
cannot maintain general personal jurisdiction over him. And
even if we assume that the analysis applicable to corporate
defendants applied here, as Mower urges, Nibley’s few
attenuated contacts with Utah, including his former relationship
with Mower, SISEL International, and property ownership, are
not ‚so continuous and systematic as to render him essentially at
home‛ in the state. See ClearOne, 2016 UT 16, ¶ 37. Consequently,
we conclude that the court did not err when it dismissed this
case for lack of personal jurisdiction. We affirm.
20150410-CA 15 2016 UT App 174