Gina Fiore v. Anthony Walden ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GINA FIORE; KEITH GIPSON,  No. 08-17558
Plaintiffs-Appellants, D.C. No.
v. 2:07-cv-01674-
ANTHONY WALDEN; UNKNOWN  ECR-LRL
AGENTS OF THE FEDERAL ORDER AND
GOVERNMENT, AMENDED
Defendants-Appellees.
 OPINION
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Senior District Judge, Presiding
Argued and Submitted
February 12, 2010—San Francisco, California
Filed September 12, 2011
Amended August 8, 2012
Before: Alfred T. Goodwin, Marsha S. Berzon, and
Sandra S. Ikuta, Circuit Judges.
Order;
Dissent to Order by Judge O’Scannlain;
Dissent to Order by Judge McKeown;
Opinion by Judge Berzon;
Dissent by Judge Ikuta
8925
FIORE v. WALDEN 8929
COUNSEL
Robert A. Nersesian and Thea Marie Sankiewicz, Nersesian
& Sankiewicz, Las Vegas, Nevada, for the plaintiffs-
appellants.
Michael F. Hertz, Acting Assistant Attorney General, and
Barbara L. Herwig and Kelsi Brown Corkran, Attorneys,
Civil Division, Department of Justice, Washington, D.C., for
the defendants-appellees.
8930 FIORE v. WALDEN
ORDER
The opinion, filed on September 12, 2011, is withdrawn
and replaced by the amended opinion attached to this order.
With this amendment, the majority of the panel has voted
to deny appellee’s petition for rehearing. Judge Berzon has
voted to deny the petition for rehearing en banc and Judge
Goodwin so recommends. Judge Ikuta has voted to grant the
petition for rehearing and petition for rehearing en banc.
The full court has been advised of the petition for rehearing
en banc. A judge of the court requested a vote on en banc
rehearing. The majority of the active judges have voted to
deny rehearing the matter en banc. Fed. R. App. P. 35(f).
The petition for rehearing and the petition for rehearing en
banc are DENIED. Judge O’Scannlain’s and Judge McK-
eown’s dissents from denial of en banc rehearing are filed
concurrently herewith.
O’SCANNLAIN, Circuit Judge, joined by TALLMAN,
CALLAHAN, BEA, and IKUTA, Circuit Judges, dissenting
from the order denying rehearing en banc:
Due process allows a court to exercise personal jurisdiction
over a defendant only if “the defendant’s conduct and connec-
tion with the forum State are such that he should reasonably
anticipate being haled into court there.” Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 474 (1985) (emphasis added; inter-
nal quotation marks omitted). To meet this requirement in a
tort case, a plaintiff generally must show that the defendant
“expressly aimed” his tortious conduct at the forum state. Cal-
der v. Jones, 465 U.S. 783, 789 (1984).
In this case, the panel majority disregarded that fundamen-
tal requirement of due process. It held that a Nevada court
FIORE v. WALDEN 8931
could exercise personal jurisdiction over a defendant for his
allegedly tortious conduct in Georgia even though: (1) all of
the actions forming the basis of the plaintiffs’ sole legal claim
were taken in and directed at Georgia, and (2) when the
defendant took those actions he did not know that the plain-
tiffs had any relevant connection to Nevada.
This ruling clashes with Supreme Court case law, exacer-
bates a conflict in our circuit law, begets a second intra-circuit
conflict, and creates or deepens two lopsided conflicts with
other circuits. The panel majority embraced the wrong side of
each conflict. As Judge Ikuta recognized in dissent, the
panel’s holding “threatens a substantial expansion of the
scope of personal jurisdiction.” 657 F.3d 838, 864. We should
have reheard this matter en banc to restore our circuit law and
to harmonize it with that of the Supreme Court. I respectfully
dissent from the regrettable failure to rehear this case en banc.
I
A gambling trip in San Juan, Puerto Rico, left Gina Fiore
and Keith Gipson with some $97,000 in cash. In August 2006
they took their cash to the San Juan airport to fly to Atlanta
and then to Las Vegas. 657 F.3d at 842-43.
At the San Juan airport, TSA agents searched Fiore, Gip-
son, and their carry-on bags. After discovering their $97,000,
the TSA agents summoned three DEA agents. Fiore told DEA
agent Michael Cuento that she and Gipson had been gambling
in San Juan. Fiore and Gipson showed Cuento their California
driver’s licenses, told Cuento that they had California and
Nevada residences, and said that they were returning to the
Nevada residences. Cuento let them board the plane but told
them they might be questioned later in their trip. 657 F.3d at
843.
When Fiore and Gipson arrived in Atlanta and headed to
their connecting gate to Las Vegas, DEA agent Anthony Wal-
8932 FIORE v. WALDEN
den approached them. Fiore and Gipson said they were going
to Las Vegas and showed him California driver’s licenses.
After a drug-detection dog alerted at Gipson’s bag, Walden
seized all of Fiore and Gipson’s cash because he suspected
that it was connected to illicit drug activity. Walden told them
that their money would be returned if they could show that
they had obtained it legitimately. 657 F.3d at 843, 850.
Fiore and Gipson then flew to Las Vegas. They forwarded
to Walden documents substantiating that their money was
legitimately obtained. They allege that, despite this documen-
tation, Walden helped prepare a false probable cause affidavit
to facilitate an action to forfeit their cash to the government.
Walden allegedly submitted the affidavit to the U.S. Attorney
for the Northern District of Georgia. 657 F.3d at 843-44.
The Assistant U.S. Attorney in charge of the case ulti-
mately concluded that the government lacked probable cause
to forfeit Fiore and Gipson’s cash. The cash was returned
about seven months after Walden seized it. 657 F.3d at 844.
II
A
Fiore and Gipson sued Walden in Nevada under Bivens,
alleging that Walden violated their Fourth Amendment rights
when he seized their cash in Georgia. Fiore and Gipson did
not allege that Walden knew that they had relevant Nevada
connections or that Walden directed his conduct at Nevada
when he seized the money. They did not allege, for example,
that they told Walden that they had Las Vegas residences, that
Cuento spoke with Walden, that Cuento told Walden of Fiore
and Gipson’s connection to Las Vegas, that Fiore and Gipson
showed Walden any Nevada-issued identification, or even
that Walden later learned of their Nevada residences. See 657
F.3d at 861 (Ikuta, J., dissenting). Because Walden’s search-
and-seizure conduct was “expressly aimed” at Georgia—and
FIORE v. WALDEN 8933
Walden thus had no contacts with Nevada that are relevant to
Fiore and Gipson’s one claim—the district court dismissed
the complaint for lack of personal jurisdiction.
B
A divided panel of our court reversed. The panel majority
accepted that Walden’s seizure of the cash was “expressly
aimed” at Georgia and thus could not independently support
personal jurisdiction over him in Nevada. 657 F.3d at 849.
But the majority believed that “the false probable cause affi-
davit aspect of the case” supported jurisdiction in Nevada. Id.(emphasis added). When Walden prepared the allegedly false
affidavit, the majority contended, he knew that Fiore and Gip-
son had “significant connections” to Nevada. Id. at 851. The
majority hypothesized that Walden by then knew of these
“significant connections” because the plaintiffs told him that
they were going to Las Vegas, the plaintiffs’ funds were
allegedly identifiable as originating from and returning to Las
Vegas, Walden or someone else ran background checks on the
plaintiffs after they returned to Nevada, and Fiore and Gipson
sent Walden documents from Nevada. Id. at 850-51.
Based on these connections, the majority concluded that
Walden “expressly aimed” his conduct at Nevada when he
prepared the affidavit. 657 F.3d at 854; see id. at 850-51.
Although this affidavit-related conduct did not form the basis
of Fiore and Gipson’s one and only claim—a Fourth Amend-
ment claim based on the seizure at the Atlanta airport—the
majority held that such conduct could support the exercise of
pendent personal jurisdiction in Nevada over that claim. Id. at
858. The panel remanded to the district court to decide
whether to exercise pendent jurisdiction over the seizure
claim. Id.Judge Ikuta dissented. “As a matter of simple logic,” she
explained, “a defendant cannot ‘expressly aim’ an intentional
act at a victim’s home state if the defendant committing the
8934 FIORE v. WALDEN
action does not even know that the victim has any connection
with that state.” 657 F.3d at 862. Because Walden did not
know of the plaintiffs’ ties to Nevada when he seized their
cash—and because the seizure forms the basis for the plain-
tiffs’ only claim—he could not have expressly aimed his rele-
vant conduct at Nevada. Id. at 862-63.
Noting that this should have been “the end of the matter,”
Judge Ikuta faulted the majority for allowing jurisdiction
based on the false affidavit “aspect” of the case. 657 F.3d at
862, 863. The false affidavit was not used to seize the plain-
tiffs’ cash; it was prepared after the seizure, to facilitate a for-
feiture action. See id. at 861, 863. Thus, Judge Ikuta
explained, any affidavit conduct could not support the exer-
cise of personal jurisdiction over the seizure claim because
the court could not say, as required by due process, that the
seizure claim arose out of or related to Walden’s later conduct
in preparing the affidavit. Id. at 864.
III
The panel decision conflicts with Supreme Court case law,
with decisions of other circuits, and with decisions of our
court. We should have taken this case en banc to eliminate
those conflicts.
A
The panel decision conflicts with Calder v. Jones, which
holds that a court may exercise personal jurisdiction over a
tort defendant only if the defendant “expressly aimed” his tor-
tious conduct at the forum state. 465 U.S. at 789.
For a court to have specific personal jurisdiction over a
non-resident tort defendant, (1) the defendant must have pur-
posefully directed specific activities toward the state forum,
(2) the plaintiff ’s claim must arise out of or relate to those
specific forum-related activities, and (3) the exercise of juris-
FIORE v. WALDEN 8935
diction must be reasonable. Schwarzenegger v. Fred Martin
Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). In this case, for
example, Fiore and Gipson would have needed to establish
“that Walden purposefully directed the actions that form the
basis of [their] claim to Nevada.” 657 F.3d at 862 (Ikuta, J.,
dissenting). To establish such “purposeful direction,” a plain-
tiff must show that the defendant committed an intentional
act, expressly aimed that act at the forum state, and thereby
caused harm that the defendant knew would likely be suffered
in the forum state. See Calder, 465 U.S. at 788-90.
The panel decision stumbles in addressing Calder’s
express-aiming requirement. In Calder the defendants wrote
and edited an article that allegedly libeled actress Shirley
Jones, who lived and worked in California. Though the article
was largely prepared in Florida (where the defendants
resided), it was circulated broadly in California. In holding
that a California court had personal jurisdiction over the
defendants, the Supreme Court emphasized that the defen-
dants had “expressly aimed” their allegedly tortious conduct
“at California.” 465 U.S. at 789. The defendants had done so
by making California “the focal point both of the story and of
the harm suffered”: the defendants’ article “was drawn from
California sources” and “impugned the professionalism of an
entertainer whose television career was centered in Califor-
nia.” Id. at 788-89. The defendants’ conduct was, in short,
“calculated to cause injury to [Jones] in California.” Id. at
791.
Fiore disregards Calder’s express-aiming requirement,
holding that a Nevada court could exercise personal jurisdic-
tion over Walden even though Nevada is not “the focal point”
of the plaintiffs’ only tort claim. Indeed, the majority took
matters a step further, allowing personal jurisdiction even
though Walden did not know of Fiore and Gipson’s connec-
tions to Nevada when he seized their cash. “[W]hen Walden
seized the cash, he knew only that the plaintiffs had California
driver’s licenses and were headed to Las Vegas.” 657 F.3d at8936 FIORE v. WALDEN
862 (Ikuta, J., dissenting). Walden did not learn of Fiore and
Gipson’s ties to Nevada until after the seizure was complete.
Id. Walden simply could not have “expressly aimed” his rele-
vant conduct—the seizure conduct that forms the basis of
Fiore and Gipson’s one claim—at Nevada. His “conduct and
connection with the forum State” are therefore not “such that
he should reasonably anticipate being haled into court there.”
Burger King Corp., 471 U.S. at 474 (internal quotation marks
omitted).1
B
The panel decision also conflicts with cases in other cir-
cuits over how to interpret and to apply Calder’s express-
aiming requirement. The majority of circuits have held that,
under Calder, a defendant must expressly aim the conduct
forming the basis of the claim at the forum state—not just at
a known forum resident—before the courts of that state may
exercise jurisdiction over the defendant. The Third and Fourth
Circuits, for example, have held that a defendant “must ‘man-
ifest behavior intentionally targeted at and focused on’ the
forum for Calder to be satisfied.” IMO Indus., Inc. v. Kiekert
AG, 155 F.3d 254, 265 (3d Cir. 1998) (quoting ESAB Group,
Inc. v. Centricut, Inc., 126 F.3d 617, 625 (4th Cir. 1997)). The
Tenth Circuit has aligned itself with the Third Circuit in con-
cluding that Calder requires “that the forum state itself”—not
just “a known forum resident”—“must be the focal point of
the tort.” Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514
F.3d 1063, 1074 n.9 (10th Cir. 2008) (internal quotation
marks omitted). The Seventh Circuit has agreed with these
courts, noting that Calder “made clear” that a defendant must
1
Judge Ikuta has explained, in a compact and cogent way, that the panel
decision “threatens a substantial expansion of the scope of personal juris-
diction” and departs from still other Supreme Court decisions affirming
that personal jurisdiction “remains a vital part of due process and fair
play.” See 657 F.3d at 864 (Ikuta, J., dissenting). I endorse her analysis
without attempting to replicate it.
FIORE v. WALDEN 8937
“expressly aim[ ] its actions at the state with the knowledge
that they would cause harm to the plaintiff there.” Mobile
Anesthesiologists Chicago, LLC v. Anesthesia Assocs. of
Houston Metroplex, P.A., 623 F.3d 440, 445 (7th Cir. 2010).
The law of other circuits is in accord. See, e.g., Johnson v.
Arden, 614 F.3d 785, 796 (8th Cir. 2010); Stroman Realty,
Inc. v. Wercinski, 513 F.3d 476, 485-86 (5th Cir. 2008); Noo-
nan v. Winston Co., 135 F.3d 85, 90 (1st Cir. 1998); United
States v. Ferrara, 54 F.3d 825, 830 (D.C. Cir. 1995); see also
Reynolds v. Int’l Amateur Athletic Fed’n, 23 F.3d 1110, 1120
(6th Cir. 1994).
The panel majority divided our circuit from these courts by
deeming the express-aiming requirement satisfied when (1)
all of the defendant’s relevant conduct was aimed at Georgia,
and (2) the defendant had no knowledge of the Nevada-based
effects of his relevant conduct. The panel made the require-
ments of due process mean something wholly different in our
circuit than they do in other circuits. We should have cor-
rected this by taking this case en banc.
C
The panel decision also deepens a conflict in our own cir-
cuit over how to interpret and to apply Calder’s express-
aiming requirement.
Even before the panel decision here, our circuit had not
always been precise when developing our jurisprudence under
Calder. Some of our decisions have emphasized that under
Calder a defendant must expressly aim his conduct at the
forum, not just at a forum resident. See, e.g., Pebble Beach
Co. v. Caddy, 453 F.3d 1151, 1158 (9th Cir. 2006) (defen-
dant’s conduct must be “directed at” forum state); Schwar-
zenegger v. Fred Martin Motor Co., 374 F.3d 797, 807 (9th
Cir. 2004) (personal jurisdiction lacking in California because
Ohio defendant’s “express aim was local,” not at California).
But other decisions have suggested that a defendant may sat-
8938 FIORE v. WALDEN
isfy the express-aiming requirement just by targeting a known
forum resident. See, e.g., Myers v. Bennett Law Offices, 238
F.3d 1068, 1073 (9th Cir. 2001) (personal jurisdiction in
Nevada proper because defendant’s allegedly tortious conduct
“individually targeted” plaintiffs, who defendant “knew were
Nevada residents” (internal quotation marks omitted)); Ban-
croft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082,
1087 (9th Cir. 2000) (express-aiming requirement satisfied
when “the defendant is alleged to have engaged in wrongful
conduct targeted at a plaintiff whom the defendant knows to
be a resident of the forum state”).
This tension in our circuit law was cemented into a square
conflict in Brayton Purcell LLP v. Recordon & Recordon, 606
F.3d 1124 (9th Cir. 2010), which upheld the exercise of per-
sonal jurisdiction because the defendant’s allegedly tortious
conduct individually targeted the plaintiff (a resident of the
forum), even though the defendant did not expressly aim his
conduct at the forum. See id. at 1129-30. This holding
prompted a dissent calling out the majority for “disregard[ing]
controlling circuit authority” requiring “conduct directly tar-
geting the actual forum in question.” Id. at 1132, 1133 (Rein-
hardt, J., dissenting) (internal quotation marks omitted). As
the dissent explained, “Pebble Beach and Schwarzenegger
establish that knowledge of the plaintiff ’s residence and a
foreseeable harm to the plaintiff are, standing alone, insuffi-
cient to establish express aiming.” Id. at 1134.
In this case the panel majority went even further than did
the panel majority in Brayton Purcell. Until now, our cases at
least recognized that a defendant must know about the plain-
tiff ’s forum connections when he took the actions forming
the basis of the plaintiff ’s claims. See, e.g., Myers, 238 F.3d
at 1073 (defendant “knew [the plaintiffs] were Nevada resi-
dents”); Bancroft & Masters, Inc., 223 F.3d at 1087-88. This
was still clear after Brayton Purcell, where the defendant’s
sole forum connection was his knowledge of the plaintiff’s
residence. 606 F.3d at 1135 (Reinhardt, J., dissenting).
FIORE v. WALDEN 8939
But the panel majority here abandoned even this require-
ment. By allowing personal jurisdiction when a defendant did
not even know that the plaintiff was connected to the forum,
the panel took circuit law even further from Supreme Court
case law than it was before. This should have been corrected
en banc.
IV
The panel majority seemed to recognize that if it just
applied Calder, it would have had to affirm. Instead it waded
into pendent personal jurisdiction law, with regrettable
results.
Under the doctrine of pendent personal jurisdiction, a
defendant may be required to defend against “a claim for
which there is no independent basis of personal jurisdiction so
long as it arises out of a common nucleus of operative facts
with a claim in the same suit over which the court does have
personal jurisdiction.” Action Embroidery Corp. v. Atl.
Embroidery, Inc., 368 F.3d 1174, 1180 (9th Cir. 2004). The
doctrine rests on considerations of “judicial economy, avoid-
ance of piecemeal litigation, and overall convenience of the
parties.” Id. at 1181.
But the doctrine does not jettison the requirements of due
process. To exercise the doctrine, a court must actually pos-
sess jurisdiction over at least one claim. This requirement sat-
isfies the fundamental fairness concerns that counsel against
haling a defendant into court in a foreign forum. Once that
connection to the forum is made and “a defendant must
appear in a forum to defend against one claim, it is often rea-
sonable to compel that defendant to answer other claims in the
same suit arising out of a common nucleus of operative facts.”
Action Embroidery, 368 F.3d at 1181. But it is not reasonable
—it violates due process—to make a defendant answer to a
“pendent” claim when the court does not have jurisdiction
over a single claim at all. We have therefore authorized appli-
8940 FIORE v. WALDEN
cation of this doctrine only when the district court has per-
sonal jurisdiction over at least one claim. See CollegeSource,
Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1076 (9th Cir.
2011); CE Distrib., LLC v. New Sensor Corp., 380 F.3d 1107,
1113 (9th Cir. 2004); Action Embroidery, 368 F.3d at 1181.
Fiore breaks from this authority and creates a conflict in our
circuit law.
Because personal jurisdiction is analyzed by claim, other
circuits have authorized pendent personal jurisdiction when
the plaintiff has alleged at least one actual claim giving rise
to personal jurisdiction. By failing to respect those bounds of
pendent personal jurisdiction—and relying instead on a non-
claim “aspect” of the case—the panel’s ruling divides us from
at least seven other circuits. See United States v. Botefuhr,
309 F.3d 1263, 1272 (10th Cir. 2002) (“Pendent personal
jurisdiction . . . exists when a court possesses personal juris-
diction over a defendant for one claim, lacks an independent
basis for personal jurisdiction over the defendant for another
claim that arises out of the same nucleus of operative fact, and
then, because it possesses personal jurisdiction over the first
claim, asserts personal jurisdiction over the second claim.”);
Inamed Corp. v. Kuzmak, 249 F.3d 1356, 1362 (Fed. Cir.
2001); Robinson Eng’g Co. Ltd. Pension Plan & Trust v.
George, 223 F.3d 445, 449 (7th Cir. 2000); ESAB Group, Inc.
v. Centricut, Inc., 126 F.3d 617, 628-29 (4th Cir. 1997); IUE
AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1056-57
(2d Cir. 1993); Oetiker v. Jurid Werke, G. m. b. H., 556 F.2d
1, 4-5 & n.10 (D.C. Cir. 1977); Robinson v. Penn Cent. Co.,
484 F.2d 553, 555-56 (3d Cir. 1973).
We should have reheard this case en banc to restore our cir-
cuit law on pendent personal jurisdiction and to bring it back
in line with the decisions of other circuits.
V
It is rare that a panel of this court departs as substantially
from controlling law and generates as many conflicts as the
FIORE v. WALDEN 8941
panel did in this case. The panel’s holding breaks from bind-
ing authority, substantially broadens personal jurisdiction, and
creates needless uncertainty in cases involving conduct that
may have effects in places that defendants cannot reasonably
predict. We should have set the law right.
I respectfully dissent.
McKEOWN, Circuit Judge, with whom Judges GOULD,
TALLMAN, CALLAHAN, BEA, IKUTA, and N.R. SMITH
join, dissenting from the order denying rehearing en banc:
With the stroke of a pen, our circuit returns to a discredited
era of specific personal jurisdiction, where foreseeability
reigns supreme and purposeful direction is irrelevant. That
approach was, of course, rejected in Burger King Corp. v.
Rudzewicz; the Supreme Court was unequivocal that “fore-
seeability is not a sufficient benchmark for exercising per-
sonal jurisdiction.” 471 U.S. 462, 474 (1985). Instead, the
Due Process Clause requires that before a distant state exer-
cises specific jurisdiction over a defendant, the defendant
must purposefully direct activities at forum residents resulting
in injuries arising out of or relating to those activities. Under
the majority’s construct, mere knowledge of the potential out-
of-state plaintiff ’s residence, along with a wrongful act, con-
fers specific personal jurisdiction. This virtually limitless
expansion of personal jurisdiction runs afoul of both due pro-
cess guarantees and Supreme Court precedent.
A bare recitation of the facts reveals just how tenuous the
forum (Nevada) connection is—individuals traveling to
Nevada with California drivers’ licenses had their Puerto Rico
gambling winnings seized while in transit in Georgia. Drug
Enforcement Administration agent Anthony Walden confis-
cated $97,000 in gambling winnings from Gina Fiore and
Keith Gipson at the Atlanta airport. Walden told them that the
8942 FIORE v. WALDEN
money would be returned if they could demonstrate it was
legitimately obtained. Upon arriving in Nevada, Fiore and
Gipson provided Walden with evidence that the money con-
stituted legitimate gambling winnings. The Assistant United
States Attorney ultimately agreed, and the money was
returned seven months after it was seized. Fiore v. Walden,
657 F.3d 838, 843-44 (9th Cir. 2011).
In their complaint, Fiore and Gipson claim that Walden
provided a false probable cause affidavit to the Assistant
United States Attorney to support forfeiture proceedings. Id.They do not allege that Walden knew of their Nevada resi-
dence at the time of the seizure, a difficult claim to make
since they presented California drivers’ licenses. A close
reading of the complaint shows they do not allege Walden
knew of their Nevada residence even after the seizure.
Because the allegations actually in the complaint are hardly
sufficient to show express aiming, the panel opinion refers to
“strong” indications that Walden came to know of Fiore and
Gipson’s Nevada residence after the initial taking, but before
he prepared the allegedly misleading affidavit. Id. at 850. But
even in their brief on rehearing, Fiore and Gipson equivocate,
saying that “all indications” showed they “were not Georgia
residents, and likely residents of Nevada or California”
(emphases added).
A divided panel of our court held that Walden’s preparation
of the affidavit for the Assistant United States Attorney, with
knowledge of Fiore and Gipson’s residence, was sufficient
purposeful direction at Nevada to sustain specific personal
jurisdiction over Walden. Id. at 860. Dissenting, Judge Ikuta
correctly recognized that purposeful direction requires more
than simply alleging that “the defendant knew [plaintiff ’s]
home state and subsequently engaged in some wrongful act.”
Id. at 864 (Ikuta, J., dissenting).
The purposeful direction requirement “ensures that a defen-
dant will not be haled into a jurisdiction solely as a result of
FIORE v. WALDEN 8943
random, fortuitous, or attenuated contacts.” Burger King, 471
U.S. at 475 (internal quotation marks omitted). Therefore,
“‘single or occasional acts’ related to the forum may not be
sufficient to establish jurisdiction if ‘their nature and quality
and the circumstances of their commission’ create only an
‘attenuated’ affiliation with the forum.” Id. n.18 (quoting Int’l
Shoe Co. v. Washington, 326 U.S. 310, 318 (1945); World-
Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 299
(1980)).
Disregarding these constitutional limitations, the panel
majority seizes upon a single act—Walden’s affidavit, which
ironically is not part of the district court or appellate record.
For Nevada to constitutionally exercise jurisdiction over Wal-
den based on the affidavit, he would need to be a “primary
participant[ ] in an alleged wrongdoing intentionally directed
at a [Nevada] resident.” Calder v. Jones, 465 U.S. 783, 790
(1984). According to the complaint, Walden submitted a
probable cause affidavit to a United States Attorney in Geor-
gia regarding Puerto Rico gambling winnings seized in
Atlanta. The affidavit was ostensibly aimed at continued
retention of confiscated funds that Fiore and Gipson simply
requested be returned to Nevada. Nevada was neither a “focal
point” nor relevant to the affidavit. Id. at 789. Since Fiore and
Gipson’s state of residence was both irrelevant and unknown
during the initial taking, later knowledge of the potential
forum state did not somehow alter the express aim of Wal-
den’s affidavit; the affidavit remained related to retention of
funds seized in Georgia. Fiore and Gipson’s state of residence
remained irrelevant.
Asserting personal jurisdiction over Walden broadens the
specific jurisdiction test from one requiring targeted “express
aiming” to one where any attenuated foreign act with foresee-
able effects upon a forum resident confers specific jurisdic-
tion. To reach this result under controlling case law, the panel
majority sidesteps Walden’s contacts with Nevada, conclud-
ing instead that “Walden expressly aimed his actions at peo-
8944 FIORE v. WALDEN
ple and property he knew from the outset were not local.”
Fiore, 657 F.3d at 850. The leap from knowing someone is
“not local” to expressly aiming at Nevada is hard to divine.
This approach turns jurisdictional principles inside out.
Under the touchstone “minimum contacts” requirement, even
though “it has been argued that foreseeability of causing
injury in another State should be sufficient to establish such
contacts . . . the Court has consistently held that this kind of
foreseeability is not a sufficient benchmark for exercising per-
sonal jurisdiction.” Burger King, 471 U.S. at 474 (internal
quotation marks omitted); Bancroft & Masters, Inc. v.
Augusta Nat’l Inc., 223 F.3d 1082, 1087 (9th Cir. 2000)
(rejecting “the broad proposition that a foreign act with fore-
seeable effects in the forum state always gives rise to specific
jurisdiction.”).
Notably missing in the majority’s expansive new standard
is a limiting principle. Only a wholesale expansion of the per-
sonal jurisdiction doctrine to mimic pre-Palsgraf tort stan-
dards would allow Nevada jurisdiction over Walden. See
Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y. 1928)
(limiting foreseeability doctrine in tort). Walden could not
have known or even reasonably foreseen that airing his views
to a Georgia prosecutor regarding proceeds seized in Atlanta
from a transient airport passenger were somehow expressly
aimed at the voyager’s home state. Yet, what is not even fore-
seeable in modern-day tort is now “purposeful direction” in
our circuit.
Reasonableness is the foundation of personal jurisdiction.
Burger King, 471 U.S. at 477-78. For a defendant to “reason-
ably anticipate” out-of-state litigation, it is “essential in each
case that there be some act by which the defendant purpose-
fully avails [him]self of the privilege of conducting activities
within the forum State, thus invoking the benefits and protec-
tions of its laws.” Hanson v. Denckla, 357 U.S. 235, 253
(1958) (citing Int’l Shoe, 326 U.S. at 319). If due process lim-
FIORE v. WALDEN 8945
itations on personal jurisdiction are to retain any guiding
force, purposeful direction may not be collapsed into a diluted
version of foreseeability. Because nothing is reasonable about
returning to the unhinged, freeform foreseeability standard
rejected by Burger King and Calder, I respectfully dissent
from the order denying rehearing en banc.
OPINION
BERZON, Circuit Judge:
Federal law enforcement officers seized funds from passen-
gers who were temporarily in the Atlanta airport changing
planes. The travelers, Gina Fiore and Keith Gipson, explained
that the funds were legal gambling proceeds, not evidence of
drug transactions. Their story turned out to be true. Fiore and
Gipson claim the seizure and later efforts to institute forfei-
ture proceedings were unconstitutional. They sued in Las
Vegas, where they were heading, lived at least part time, and
suffered the inconvenience of arriving with absolutely no
money, as well as other financial injuries. The district court
dismissed this Bivens1 action against the federal officers for
lack of personal jurisdiction. We reverse and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
In July and August of 2006, Fiore and Gipson, professional
gamblers, traveled from Las Vegas, Nevada, where both
maintained residences, to casinos in Atlantic City, New Jer-
sey, and San Juan, Puerto Rico, before returning to Las Vegas.2
1
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971).
2
The facts are taken from Fiore and Gipson’s first amended complaint
and from a declaration by the defendant. Of course, at this preliminary
stage, we do not know whether any of the facts alleged in the complaint
are true, but simply assume that they are. See Brayton Purcell LLP v.
Recordon & Recordon, 606 F.3d 1124, 1127 (9th Cir. 2010); Pebble
Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006).
8946 FIORE v. WALDEN
On their return trip on August 8, 2006, they left from San
Juan, boarded a connecting flight in Atlanta, Georgia, and
then flew to Las Vegas, their final destination.
In San Juan, an agricultural x-ray inspection and other addi-
tional screening showed no contraband in Fiore’s or Gipson’s
luggage. At a Transportation Security Administration (TSA)
checkpoint, Fiore and Gipson were subjected to heightened
security procedures because they were traveling on one-way
tickets. They were screened for minute traces of illegal drugs;
none was found. Search of their carry-on bags revealed
approximately $48,000 in Gipson’s carry-on bag and $34,000
in Fiore’s carry-on bag, all carried openly. Gipson also had
approximately $15,000 on his person. These funds, totaling
approximately $97,000 in United States currency, included
approximately $30,000 in seed money for gambling — their
“traveling bank” — brought with them from Las Vegas.3
After this cash was discovered, San Juan Drug Enforce-
ment Administration (DEA) Agent Michael Cuento and two
other agents arrived and questioned Fiore. Gipson was not
questioned directly, but stood by and participated in the con-
versation. Fiore explained that she and Gipson had been stay-
ing and gambling at the El San Juan Casino property. When
asked for identification, Fiore and Gipson showed their Cali-
fornia drivers’ licenses and stated that they had California res-
idences, as well as residences in Las Vegas.4 They further
informed the DEA agents “that Las Vegas was the final desti-
nation of most if not all of the funds in their possession” and
that they were returning to their Las Vegas residences. Agent
Cuento escorted Gipson and Fiore to their plane and told them
that they might be questioned further in Las Vegas. The two
3
The first amended complaint notes that “Las Vegas [w]as the ordinary
static place where [the ‘traveling bank’ was] situated.”
4
According to the complaint, Fiore’s and Gipson’s residences in Las
Vegas are now their permanent residences.
FIORE v. WALDEN 8947
therefore called their attorneys in Las Vegas and arranged to
meet them at the airport.
When they arrived at the Atlanta Hartsfield-Jackson Inter-
national Airport for their connecting flight to Las Vegas, nei-
ther Gipson nor Fiore left the transit area near the departure
gates. At their gate, DEA Agent Anthony Walden and another
DEA agent approached Fiore and began questioning her.
Fiore said again that she was not carrying contraband, weap-
ons, or drugs. She explained that she and Gipson were profes-
sional advantage gamblers5 and that the money in their
possession was their gambling bank and winnings. In addi-
tion, Fiore showed Walden her trip record,6 which dated back
to July 10, 2006, and listed casinos and gaming results. Gip-
son, sequestered from Fiore for questioning, explained that
the documents evidencing that his trip was for gambling were
in his checked bag.
After about ten minutes of questioning, another DEA agent
arrived in the boarding area with a drug-detecting dog. The
dog did not react to Fiore’s carry-on bag but pawed Gipson’s
bag once. The agents informed Fiore and Gipson that the
dog’s reaction sufficiently signaled contraband to indicate that
their money was involved in drug transactions and then seized
all the funds that Fiore and Gipson had in their possession.
Although Fiore and Gipson asked to be allowed at least taxi
fare for their arrival in Las Vegas, the agents denied the
request. Walden told Fiore and Gipson that if they later pro-
duced receipts showing the legitimacy of the funds, their
money would be returned. With this understanding, Fiore and
Gipson boarded their flight to Las Vegas. When they arrived
5
Fiore and Gipson’s complaint states that they play “advantage gam-
bling,” meaning that they limit their play to legal games, such as poker,
in which they have a statistical edge over the casino or other competitors
because of their skill.
6
The complaint explains that “[s]uch logs are kept by professional gam-
blers as support for tax purposes.”
8948 FIORE v. WALDEN
in Las Vegas, Fiore and Gipson learned that their checked
luggage also had been searched in Atlanta.
On August 30, 2006, and September 15, 2006, Fiore and
Gipson sent Walden, from Las Vegas, various documents
showing the legitimacy of their funds, including federal tax
returns demonstrating that they were professional gamblers;
the itinerary, hotel records, and receipts from their trip, which
showed the legitimacy of their seized money; and a win
record on El San Juan Casino letterhead stationery stating that
Gipson left the hotel with over $30,000 in winnings immedi-
ately before leaving for Las Vegas via Atlanta. Fiore and Gip-
son asked that their money be returned to them as Walden had
promised.
The funds, however, were not returned to Fiore and Gipson.
Instead, the matter was forwarded to DEA headquarters in
Virginia for additional investigation.7 According to the com-
plaint, the DEA’s background searches on Fiore and Gipson
showed them to be “squeaky clean.” Nonetheless, according
to the complaint, Walden and another DEA agent provided a
false probable cause affidavit to the United States Attorney in
the Northern District of Georgia, to assist in bringing a forfei-
ture action. Specifically, Fiore and Gipson allege in the com-
plaint that this probable cause affidavit falsely stated that
Gipson had been uncooperative and had refused to respond to
questions; that Fiore and Gipson had given inconsistent
answers during questioning; and that there was sufficient evi-
dence for probable cause to forfeit the funds as drug proceeds.
Also, according to the complaint, Walden left out exculpatory
evidence he knew about when he submitted the affidavit: that
Fiore and Gipson had no history of unlawful drug use or
7
In his declaration, Walden states that after he seized the cash, he “im-
mediately transferred [it] to a secure location designated to store seized
cash” and that “[w]ithin approximately one hour of the seizure, [he] was
no longer in possession of the seized cash . . . [and] did not possess the
authority to return the cash” to Fiore and Gipson.
FIORE v. WALDEN 8949
trade; that they had documentation showing them to be advan-
tage gamblers; that their bags had passed through an agricul-
tural x-ray and other inspections used for contraband
detection without incident; that Fiore and Gipson had pro-
vided actual receipts for most of the funds that they carried;
and that the $30,000 Gipson was carrying could be traced
directly to a legal source, his winnings at El San Juan Casino.
The case was referred to Assistant United States Attorney
(AUSA) Dahil Goss. After determining that Walden had in
fact omitted information, with the result that the probable
cause affidavit he provided was misleading, Goss concluded
that there was no probable cause for the forfeiture of the
funds. Goss contacted Fiore and Gipson and offered to return
their funds in exchange for a release, presumably of any pos-
sible legal claims, but they refused to execute one. Nonethe-
less, Goss directed the DEA to return Fiore and Gipson’s
money. The $97,000 was returned to them in Las Vegas on
March 1, 2007, nearly seven months after the seizure at the
Atlanta airport and six months after Fiore and Gipson had
provided Walden with the requested documentation showing
the legal source of their funds.
Fiore and Gipson brought a Bivens action in the District of
Nevada against Walden and three other, unnamed DEA
agents or attorneys8 in their individual capacities, alleging that
Walden and the other agents had violated their Fourth
Amendment rights by: (1) seizing their money without proba-
ble cause; (2) continuing to hold the funds for nearly six
months after receiving information conclusively demonstrat-
ing the legal source of the cash; (3) knowingly compiling a
false and misleading probable case affidavit to support a for-
feiture action; and (4) referring the matter to the United States
Attorney for prosecution on the basis of deficient and/or falsi-
8
The unnamed DEA agents or attorneys were never served and are not
appellants here.
8950 FIORE v. WALDEN
fied information, while willfully withholding known exculpa-
tory information.
Walden moved to dismiss for lack of personal jurisdiction,
under Fed. R. Civ. P. 12(b)(2), and for improper venue, under
Fed. R. Civ. P. 12(b)(3). The district court determined that
Walden’s search of Fiore’s and Gipson’s bags and initial sei-
zure of their funds occurred in, and was expressly aimed at,
Georgia. Therefore, the district court concluded, there was not
personal jurisdiction over Walden in Nevada.9 The district
court did not separately consider whether Walden’s actions
regarding the allegedly false probable cause affidavit justified
personal jurisdiction.
On appeal, Fiore and Gipson challenge dismissal of their
case for lack of personal jurisdiction over Walden, the only
defendant-appellee. They also argue that Nevada is the appro-
priate venue. We review de novo a district court’s rulings on
personal jurisdiction and improper venue. Brayton Purcell,
606 F.3d at 1127.
II. DISCUSSION
A. Personal Jurisdiction
[1] “‘When subject matter jurisdiction is premised on a
federal question, a court may exercise specific jurisdiction
over a defendant if a rule or statute authorizes it to do so and
the exercise of jurisdiction comports with the constitutional
requirement of due process.’ ” Myers v. Bennett Law Offices,
238 F.3d 1068, 1072 (9th Cir. 2001) (quoting AT&T Co. v.
Compagnie Bruxelles Lambert, 94 F.3d 586, 589 (9th Cir.
1996)). Where, as here, there is no applicable federal statute
governing personal jurisdiction, we look to the law of the
state in which the district court sits. See Fed. R. Civ. P.
4(k)(1)(A).
9
The district court did not address venue.
FIORE v. WALDEN 8951
[2] Nevada’s long-arm statute permits personal jurisdiction
over a defendant unless the exercise of jurisdiction would vio-
late due process. Myers, 238 F.3d at 1072; Trump v. Eighth
Judicial Dist. Court, 857 P.2d 740, 747 (Nev. 1993); Nev.
Rev. Stat. 14.065(1). Our analysis therefore focuses exclu-
sively on due process considerations. The due process analy-
sis, in turn, centers on whether Walden has “certain minimum
contacts” with Nevada, such that the exercise of jurisdiction
“does not offend ‘traditional notions of fair play and substan-
tial justice.’ ” Int’l Shoe Co. v. Wash., 326 U.S. 310, 316
(1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).
Our court uses a three-part test (the Schwarzenegger test)
for determining specific personal jurisdiction — that is, per-
sonal jurisdiction premised on the particular circumstances
underlying the lawsuit sought to be litigated:10
(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
(3) the exercise of jurisdiction must comport with
fair play and substantial justice, i.e. it must be rea-
sonable.
10
There is no general jurisdiction over Walden, as he had no “continu-
ous and systematic . . . contacts” with Nevada. Helicopteros Nacionales
de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984); see also Schwar-
zenegger v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir. 2004).
8952 FIORE v. WALDEN
Schwarzenegger, 374 F.3d at 802 (citation and internal quota-
tion marks omitted) (emphases added).
B. Operative Facts
In response to Fiore and Gipson’s first amended complaint,
Walden moved to dismiss for lack of personal jurisdiction and
improper venue. His motion included a declaration stating
that he was a police officer for the City of Covington, Geor-
gia, and was deputized as a federal narcotics investigator
assigned to the DEA Task Force Group 1 at the Atlanta air-
port. The purpose of the task force was to interdict illegal
drugs, seize the drugs and any proceeds found, and prosecute
individuals transporting illegal drugs or drug proceeds. Wal-
den also stated that (1) he is a Georgia resident who had never
resided, owned property, conducted business, or even been in
Nevada; (2) he intercepted Fiore and Gipson at the Atlanta
airport after he was informed by San Juan law enforcement
officers that Fiore and Gipson had boarded a plane to Atlanta
en route to their final destination, Las Vegas, Nevada; (3)
when he asked plaintiffs for identification, they presented
drivers’ licenses that “were not issued by the State of
Nevada”; (4) after the seizure, Walden and the other DEA
agents “immediately transferred the seized cash to a secure
location” for storage; (5) “[w]ithin approximately one hour of
the seizure, [Walden] was no longer in possession of the
seized cash”; and (6) Walden “did not possess the authority
to return the cash to [Fiore and Gipson] once it was seized.”11
Walden stated that he seized the funds because of concern that
Fiore and Gipson had approximately $97,000 in their posses-
11
Federal regulations confirm that Walden did not have legal authority
to return the money seized from Fiore and Gipson. See 21 C.F.R.
§§ 1316.72-1316.73 (detailing requirements for storage of property “sub-
ject to seizure” and specifying Special Agents-in-Charge — not deputized
local police such as Walden — as the officials “designated . . . to receive
and maintain” seized property); see 21 C.F.R. § 1316.71(e) (defining
“Special Agents-in-Charge” as DEA Special or Resident Agents-in-
Charge and Federal Bureau of Investigation Special Agents-in-Charge).
FIORE v. WALDEN 8953
sion and lacked sufficient documentation to substantiate the
legitimacy of the funds. He further declared that he did not
contact Fiore and Gipson’s attorney or anyone else in Nevada
to verify their explanations about the sources of the funds.
The district court did not conduct an evidentiary hearing
regarding personal jurisdiction.12 Consequently, “the plaintiff
need only make ‘a prima facie showing of jurisdictional facts
to withstand the motion to dismiss.’ ”13 Brayton Purcell, 606
F.3d at 1127 (quoting Pebble Beach, 453 F.3d at 1154).
“ ‘[U]ncontroverted allegations in plaintiff’s complaint must
be taken as true,’ ” id. (quoting Rio Props., Inc. v. Rio Int’l
Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002)) (alteration
omitted), and, in deciding whether a prima facie showing has
been made, “the court resolves all disputed facts in favor of
the plaintiff.” Pebble Beach, 453 F.3d at 1154. Nonetheless,
“mere ‘bare bones’ assertions of minimum contacts with the
forum or legal conclusions unsupported by specific factual
allegations will not satisfy a plaintiff’s pleading burden.”
Swartz v. KPMG LLP, 476 F.3d 756, 766 (9th Cir. 2007).
[3] In determining whether there is personal jurisdiction,
we have drawn inferences from the facts alleged in the com-
plaint, but have not expressly addressed the standard for doing
so.14 Other circuits have been more explicit than we have
12
As far as appears in the record, Walden did not request an evidentiary
hearing.
13
“If the plaintiff succeeds in meeting that prima facie burden, then the
district court may still order an evidentiary hearing or the matter may be
brought up again at trial.” Metropolitan Life Ins. Co. v. Neaves, 912 F.2d
1062, 1064 n.1 (9th Cir. 1990).
14
See CE Distrib., LLC v. New Sensor Corp., 380 F.3d 1107, 1111 (9th
Cir. 2004) (holding that it is “reasonable to infer” that the defendant knew
its actions “would resonate in Arizona” because it knew that plaintiff was
based in Arizona); Peterson v. Highland Music, Inc., 140 F.3d 1313, 1320
(9th Cir. 1998) (holding that licensing agreements and other documents
with California companies “g[a]ve rise to a strong inference” that defen-
dants conducted negotiations with California companies, possibly in Cali-
fornia).
8954 FIORE v. WALDEN
about the authority to draw reasonable inferences in favor of
the plaintiff in determining whether the plaintiff has made a
prima facie showing of personal jurisdiction over the defen-
dant.15 At the same time, the federal courts of appeal do not
draw unreasonable or far-fetched inferences in favor of the
plaintiff.16
15
See Noonan v. Winston Co., 135 F.3d 85, 89 (1st Cir. 1998) (“Because
the district court dismissed plaintiffs’ claims without holding an evidenti-
ary hearing, we review the rulings de novo, . . . construing all inferences
in the plaintiffs’ favor.”); New Wellington v. Flagship Resort Dev., 416
F.3d 290, 294 (4th Cir. 2005) (“[C]ourts ‘must construe all relevant plead-
ing allegations in the light most favorable to the plaintiff, assume credibil-
ity, and draw the most favorable inferences for the existence of
jurisdiction.’ ” (quoting Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.
1989))); GCIU-Emp’r Ret. Fund v. Goldfarb Corp., 535 F.3d 1018, 1020
n.1 (7th Cir. 2009) (“In reciting the facts, we read the complaint liberally
with every inference drawn in favor of plaintiff and resolve all factual dis-
putes in favor of plaintiff.”) ; Steinbuch v. Cutler, 518 F.3d 580, 585 (8th
Cir. 2008) (“To survive a motion to dismiss, the plaintiff must state suffi-
cient facts in the complaint to support a reasonable inference that defen-
dants may be subjected to jurisdiction in the forum state.”); Fraser v.
Smith, 594 F.3d 842, 846 (11th Cir. 2010) (“We accept factual allegations
in the complaint as true to the extent that they are uncontested and, in
cases of conflict, construe all reasonable inferences in the plaintiffs’
favor.”); Pennington Seed, Inc. v. Produce Exch. No. 299, 457 F.3d 1334,
1338 (Fed. Cir. 2006) (“In reviewing the [personal jurisdiction] decision,
we accept a plaintiff’s well-pleaded factual allegations as true and draw
all reasonable inferences in its favor.”).
16
See Negron-Torres v. Verizon Commc’ns, Inc., 478 F.3d 19, 23 (1st
Cir. 2007) (“‘[W]e caution that . . . the law does not require us struthiously
to credit conclusory allegations or draw far-fetched inferences’ ” (quoting
Mass. Sch. of Law, Inc. v. Am. Bar Ass’n, 142 F.3d 26, 34 (1st Cir.
1998))); Robinson v. Overseas Military Sales Corp., 21 F.3d 502 (2d Cir.
1994) (“[W]e will not draw ‘argumentative inferences’ in the plaintiff’s
favor”); Autogenomics, Inc. v. Oxford Gene Tech. Ltd., 566 F.3d 1012,
1018 (Fed. Cir. 2009) (“Although we must resolve factual conflicts in
[plaintiff’s] favor, it is entitled to only those inferences that are reason-
able.”); Helmer v. Doletskaya, 393 F.3d 201, 209 (D.C. Cir. 2004)
(“While a district court must resolve all factual disputes in favor of the
plaintiff . . . ‘the court need not accept inferences drawn by plaintiffs if
such inferences are unsupported by the facts set out in the complaint.’ ”
(quoting Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir.
1984))).
FIORE v. WALDEN 8955
[4] We agree with these various circuits regarding the stan-
dard for drawing inferences from the complaint when address-
ing personal jurisdiction questions: We will draw reasonable
inferences from the complaint in favor of the plaintiff where
personal jurisdiction is at stake, and will assume credibility.
This approach is in line with the pleading standard set forth
by the Supreme Court in Ashcroft v. Iqbal, 129 S. Ct. 1937(2009). See id. at 1949 (“A claim has facial plausibility when
the pleaded factual content allows the court to draw the rea-
sonable inference that the defendant is liable for the miscon-
duct alleged.”).
[5] Here, the key facts in the complaint include Fiore and
Gipson’s statements that they are Nevada residents; that at the
time the funds were seized, they both maintained residences
in Las Vegas to which they were returning; and that Walden
knew, at least by the time he wrote the probable cause affida-
vit, that the funds they had on their persons and in their carry
on luggage while changing planes in Atlanta were legitimate
proceeds of their gambling trade.
C. Application of the Schwarzenegger Test
Throughout the ensuing discussion, we concentrate on the
false affidavit/forfeiture proceeding aspect of this case,
because, as we explain below, we ultimately remand with
respect to the initial search and seizure claim, for consider-
ation of the application of the doctrine of pendent personal
jurisdiction. See Action Embroidery Corp. v. Atlantic Embroi-
dery, Inc., 368 F.3d 1174, 1180 (9th Cir. 2004); pp. 8974-75,
infra.
1. Purposeful Direction
The first part of the Schwarzenegger test is subdivided into
purposeful direction, which most often applies in tort cases,
and purposeful availment, which most often applies in con-
tract cases. 374 F.3d at 802; see Pebble Beach, 453 F.3d at8956 FIORE v. WALDEN
1155. Fiore and Gipson have alleged a tort action,17 which
calls for purposeful direction analysis.
We analyze purposeful direction under the three-part test
derived from Calder v. Jones, 465 U.S. 783 (1984), com-
monly referred to as the Calder-effects test. See Brayton Pur-
cell, 606 F.3d at 1128; see also Calder, 465 U.S. at 788-91;
Schwarzenegger, 374 F.3d at 803. Under the Calder-effect
test, “ ‘the defendant allegedly must have [(a)] committed an
intentional act, [(b)] expressly aimed at the forum state, [(c)]
causing harm that the defendant knows is likely to be suffered
in the forum state.’ ” Brayton Purcell, 606 F.3d at 1128 (quot-
ing Yahoo! Inc. v. La Ligue Contre Le Racisme Et
L’Antisemitisme, 433 F.3d 1199, 1206 (9th Cir. 2006) (en
banc)).
[6] “[D]ue process permits the exercise of personal juris-
diction over a defendant who ‘purposefully directs’ his activi-
17
Bivens actions, like the one brought here by Fiore and Gipson, are
constitutional tort claims against individual government officials. See
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971); see also Van
Strum v. Lawn, 940 F.2d 406, 408-10 (9th Cir. 1991) (holding that state
personal injury statutes of limitations apply to constitutional tort claims
brought under Bivens); Arnold v. United States, 816 F.2d 1306, 1311 (9th
Cir. 1987) (holding that the plaintiff’s Bivens claim failed because she
alleged only state-law tort claims, not constitutional tort claims).
We do not, of course, decide in this personal jurisdiction appeal any
merits issues, including whether a Bivens action is available and whether
any immunities apply. “Whether the complaint states a cause of action on
which relief could be granted is a question of law and just as issues of fact
it must be decided after and not before the court has assumed jurisdiction
over the controversy.” Bell v. Hood, 327 U.S. 678, 682 (1946); see also
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (“[T]he
absence of a valid (as opposed to arguable) cause of action does not impli-
cate subject matter jurisdiction.”); Bollard v. California Province of the
Society of Jesus, 196 F.3d 940, 951 (9th Cir. 1999) (holding that if a com-
plaint’s allegations fail to sufficiently state a claim, such failure is not
jurisdictional, but rather cause for dismissal “on the merits under Rule
12(b)(6)”).
FIORE v. WALDEN 8957
ties at residents of a forum, even in the ‘absence of physical
contacts’ with the forum.” Schwarzenegger, 374 F.3d at 803(quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476
(1985) (alteration omitted)). Intentional torts, in particular,
can support personal jurisdiction over a nonresident defendant
who has no other forum contacts. Calder, 465 U.S. at 790; see
also McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. ___,
2011 WL 2518811 at *4-5 (Jun. 27, 2011) (plurality opinion).
a. Intentional Act
[7] The “intentional act” prong of the Calder-effects test is
satisfied in this case, as the district court recognized. “We
construe ‘intent’ in the context of the ‘intentional act’ test as
referring to an intent to perform an actual, physical act in the
real world, rather than an intent to accomplish a result or con-
sequence of that act.” Schwarzenegger, 374 F.3d at 806. Sub-
mitting a false and misleading probable cause affidavit and
referring the case for forfeiture proceedings in the absence of
probable cause were intentional acts. See, e.g., Bancroft &
Masters, Inc v. Augusta Nat’l Inc., 223 F.3d 1082, 1088 (9th
Cir. 2000) (sending a letter was an intentional act).
b. Express Aiming
The “express aiming” prong of the Calder-effects test pre-
sents a more difficult question. The district court reasoned
that “Walden’s intentional act — the search of Plaintiffs’ lug-
gage and seizure of their currency — was expressly aimed at
Georgia, not Nevada,” because Walden’s questioning of Fiore
and Gipson, his search of their luggage and his seizure of their
money all took place in Georgia. We may assume that is so.
But, the district court, as noted, did not consider the false
probable cause affidavit aspect of the case, as to which the
express aiming prong, we conclude, is satisfied.
[8] In general, where there was “individual targeting” of
forum residents — actions taken outside the forum state for
8958 FIORE v. WALDEN
the purpose of affecting a particular forum resident or a per-
son with strong forum connections — we have held the
express aiming requirement satisfied. See Brayton Purcell,
606 F.3d at 1129-31; Pebble Beach, 453 F.3d at 1157; Dole
Food Co., Inc. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002);
Bancroft & Masters, 223 F.3d at 1087.18 At the same time, the
express aiming requirement is not satisfied where it is merely
foreseeable that there will be an impact on individuals in the
forum. Pebble Beach, 453 F.3d at 1156; Bancroft & Masters,
223 F.3d at 1087; Schwarzenegger, 374 F.3d at 805.
In Bancroft & Masters, we explained that “[t]he presence
of individualized targeting is what separates these cases from
others in which we have found the effects test unsatisfied.”
223 F.3d at 1088. In other words, the difference between
those cases in which harm is merely foreseeable in the forum
and those in which conduct is “expressly aimed” at the forum
is often the difference between an intended impact that is
either local or undifferentiated, and an intended impact that is
18
Even before Bancroft & Masters, the case that made explicit the
express aiming prong of the Calder-effects test, see 223 F.3d at 1087, the
case law in this circuit focused on individual targeting of those with
known, significant connections to the forum. See Panavision Int’l, L.P. v.
Toeppen, 141 F.3d 1316, 1321 (9th Cir. 1998) (holding that personal juris-
diction existed where “[t]he brunt of the harm . . . was felt in California,”
and the defendant “knew Panavision would likely suffer harm there
because, although at all relevant times Panavision was a Delaware limited
partnership, its principal place of business was in California”); Gordy v.
Daily News, L.P., 95 F.3d 829, 833 (9th Cir. 1996) (finding personal juris-
diction where “[t]he prime targeting [arose] . . . from the fact that [plaintiff
was] an individual who live[d] in California”); Brainerd v. Governors of
the Univ. of Alberta, 873 F.2d 1257, 1259 (9th Cir. 1989) (holding that
there was personal jurisdiction over a defendant who “knew the injury and
harm stemming from his communications would occur in Arizona, where
[plaintiff] planned to live and work); Lake v. Lake, 817 F.2d 1416, 1423
(9th Cir. 1987) (holding that personal jurisdiction existed where defendant
“took . . . actions for the very purpose of having their consequences felt
in the forum state” and where those actions “amount[ed] to more than . . .
untargeted negligence”).
FIORE v. WALDEN 8959
targeted at a known individual who has a substantial, ongoing
connection to the forum.
For example, the maintenance of a passive website did not
satisfy the express aiming requirement, even though the web-
site was viewed by forum residents, because there was no “in-
dividualized targeting” involved in “merely registering and
operating a passive informational website.” Brayton Purcell,
606 F.3d at 1130. Similarly, there was no express aiming in
Schwarzenegger, which involved an Ohio car dealership’s
unauthorized use of Arnold Schwarzenegger’s photograph in
local advertisements, none of which were circulated in Cali-
fornia, the forum in which Schwarzenegger brought suit. 374
F.3d at 799-800. The “express aim was local,” as the defen-
dant intended the advertisement at issue to have only local
effects. Id. at 807. The fact that the advertisement may have
had forum effects, such as diminished compensation due to
the “over-saturation of [Schwarzenegger’s] image,” id. at 800,
was not sufficient to satisfy the express aiming prong. Id. at
807.
[9] With respect to the allegedly false affidavit and referral
for forfeiture proceedings, the indications that Walden was
expressly targeting Fiore and Gipson in Nevada are strong.
From the outset, Walden must have known and intended that
his actions would have impacts outside Atlanta. Walden con-
fronted Fiore and Gipson at their boarding gate for a plane to
Las Vegas, after learning from agents in San Juan that they
had just flown from there. So he knew that they were merely
changing planes in Atlanta, not staying there. When Walden
spoke to them, Fiore and Gipson evidenced no connections
whatever to Georgia; they said they were going to Las Vegas,
and showed California drivers’ licenses. Thus, Walden
expressly aimed his actions at people and property he knew
from the outset were not local.19 See id.19
The DEA agents in San Juan had been told about plaintiffs’ Nevada
connections. Fiore and Gipson’s complaint states that they
8960 FIORE v. WALDEN
Moreover, on the complaint’s allegations, Walden defi-
nitely knew, at some point after the seizure but before provid-
ing the alleged false probable cause affidavit, that Fiore and
Gipson had a significant connection to Nevada. First, Fiore
and Gipson’s complaint states that “the funds were readily
identifiable [as] originating and returning to Las Vegas as the
ordinary static place where they were situated as plaintiffs’
bank for gambling.” The complaint then goes on to state that
“Walden . . . told plaintiffs in no uncertain terms that if they
later produced legal receipts demonstrating the legitimacy of
the funds, the funds would be returned.” Attempting to so
demonstrate,
[u]pon returning to their homes in Las Vegas, plain-
tiffs marshaled records within Las Vegas to comply
with defendant’s request and representation . . . On
August 30, 2006, plaintiffs forwarded the following
to Walden from Las Vegas: i. Copies of federal tax
returns showing that each plaintiff made their living
through gaming; ii. Receipts for their trip; iii. Travel
itinerary for the trip; and iv. Hotel records showing
that they gambled at such a high level that the casi-
nos would provide them rooms on a complimentary
(free) basis.
(emphasis added). At this point, the complaint alleges, “Wal-
den necessarily recognized that in addition to a ‘bank’ held by
Gipson for his seed money in gaming and necessarily origi-
nating in Nevada, the seized funds included at least
volunteered that they had residences in Las Vegas (now their per-
manent residences) and California, truthfully provided [the DEA
agent] with the additional information concerning their Las
Vegas residences, and truthfully indicated that Las Vegas was the
final destination of most if not all of the funds in their possession,
the originating destination for a substantial part of the currency
in their possession, and that they were returning to their resi-
dences in Las Vegas.
FIORE v. WALDEN 8961
$30,000.00 in cash received from legal gaming win[nings] in
Puerto Rico.” The complaint also alleges that “[a]ll defen-
dants recognized at all times that the destination of the funds
at the time of the seizure was Las Vegas, Nevada, and that a
substantial amount of the currency had also originated at Las
Vegas, Nevada.”
[10] Finally, the complaint alleges that after Fiore and Gip-
son arrived in Las Vegas, “either Walden or Defendant C,
with Walden’s acquiessance [sic] and encouragement,
searched data bases for background on plaintiffs including
data bases compiled and maintained in Nevada,” and that
“[t]hese searches indicated that the plaintiffs were ‘squeaky
clean.’ ” Moreover,
[a]t the time that the probable cause affidavit was
drafted, Walden and defendant C recognized that the
funds were not subject to forfeiture and that they had
authority and duty to return or cause the return of the
seized . . . funds to plaintiffs in Las Vegas. . . [And]
any reasonable officer acting in like or similar cir-
cumstances would have returned the seized funds to
the plaintiffs in Las Vegas.
“Nevertheless, despite demand, despite knowledge of inno-
cence, and despite the duty to return the funds, the funds were
not returned to Las Vegas as required.” Finally, according to
the complaint, the funds ultimately were returned to Fiore and
Gipson in Las Vegas, by the prosecutor to whom the case had
been referred after Walden submitted the false affidavit.
Taken together, these allegations indicate that at the time the
assertedly false affidavit was composed and filed, Walden
recognized that the plaintiffs had significant connections to
Nevada, particularly with respect to the funds for which for-
feiture was being sought.
For the purposes of personal jurisdiction, it does not matter
whether Fiore and Gipson were legal residents of Nevada or
8962 FIORE v. WALDEN
whether they simply had a significant connection to the
forum, such that Walden’s actions were “ ‘performed with the
purpose of having’ its ‘consequences felt’ by someone in [Las
Vegas].” Ibrahim v. Dep’t Homeland Sec., 538 F.3d 1250,
1259 (9th Cir. 2008); see also Brainerd, 873 F.2d at 1259.
Ibrahim, for example, concerned a woman from Malaysia
who had studied at Stanford but was leaving, permanently, on
the day of the incident that gave rise to the lawsuit. 538 F.3d
at 1253. The defendant, a resident of Virginia who had no ties
to California, had from the Transportation Security Intelli-
gence Service’s office in Washington, D.C., instructed San
Francisco police to detain Ibrahim after her name appeared on
the federal government’s No-Fly List. Id. at 1253, 1258. We
held the purposeful impact on Ibrahim in San Francisco suffi-
cient to establish personal jurisdiction over the out-of-state
defendant, because it was apparent to the defendant that his
order’s consequences would be felt in San Francisco. Id. at
1258-59. This was so even though the defendant did not initi-
ate the phone call that resulted in him instructing the police
in San Francisco to detain Ibrahim. Id. at 1258. Whether Ibra-
him was a California resident at the time of her detention was
not discussed in the case, indicating that her residence did not
matter.
Similarly, in Brainerd, a defamation case, Brainerd, the
plaintiff had accepted a tenured position with the University
of Arizona, after which the defendant made defamatory state-
ments about him to his new employer. 873 F.2d at 1258.
Whether Brainerd was an Arizona resident at the time the
defamatory statements were made was not a factor in the
opinion’s analysis. Instead, Brainerd’s known connection to
Arizona was sufficient to establish personal jurisdiction in
Arizona over the defendant, a resident of Canada whose only
contacts with Arizona consisted of communications with the
University of Arizona regarding the plaintiff. Id. at 1258-59.
The defendant “knew the injury and harm stemming from his
communications would occur in Arizona, where Brainerd
planned to live and work.” Id. at 1259 (emphasis added).
FIORE v. WALDEN 8963
In this case, the allegations in the complaint, taken as true
for these purposes, establish that Walden necessarily recog-
nized, at least by the time he wrote the probable cause affida-
vit, that the plaintiffs had a connection to Nevada that was at
least as strong as in Ibrahim, in which the plaintiff left the
forum state the day after the incident giving rise to the suit,
never to return, 538 F.3d at 1253, or in Brainerd, where the
plaintiff only planned to live and work in the forum where the
injury occurred. 873 F.2d at 1259.
[11] Thus, whether Fiore and Gipson were residents of
Nevada at the time of the filing of the false probable cause
affidavit is not determinative of the question of personal juris-
diction over Walden. Moreover, as in Ibrahim and Brainerd,
it is not relevant who initiated the contacts with Nevada. See
Ibrahim, 538 F.3d at 1258-59; Brainerd, 873 F.2d at 1259.
Instead, the critical factor is whether Walden, knowing of
Fiore and Gipson’s significant connections to Nevada, should
be taken to have intended that the consequences of his actions
would be felt by them in that state.
As to that issue, our precedents regarding personal jurisdic-
tion in cases concerning fraud or similar causes of action are
informative. That case law firmly establishes that if a defen-
dant is alleged to have defrauded or similarly schemed against
someone with substantial ties to a forum, the “expressly
aimed” factor is met, even if all the defrauding activities
occur outside the forum.
In Bancroft & Masters, for example, the defendant, a com-
pany based in Georgia, sent a letter to the company in Vir-
ginia that is the sole registrar of domain names in the United
States, allegedly for the purpose of misappropriating a Cali-
fornia company’s domain name for its own use. 223 F.3d at
1087. This court held that the letter, sent from Georgia to Vir-
ginia, “was expressly aimed at California because it individu-
ally targeted [plaintiff], a California corporation doing
business almost exclusively in California” and “the effects of
8964 FIORE v. WALDEN
the letter were primarily felt, as [defendant] knew they would
be, in California.” Id. at 1088.
Similarly, Metropolitan Life, decided before this court
explicitly adopted the “express aiming” analysis, held that
personal jurisdiction existed in California over Geneva Gam-
brell, an Alabama resident who purposefully defrauded James
Neaves, a California resident, by sending a letter to an insur-
ance company representing that Gambrell was entitled to a
payment that she knew actually belonged to Neaves. Id. at
1064-65. Gambrell sent the letter to the insurance company in
California, rather than mailing it to the company’s headquar-
ters in New York, but the court explained that the location to
which the letter was mailed did not matter. Id. at 1065. What
mattered, instead, was that in “address[ing] the envelope to
Metropolitan, she was purposefully defrauding Neaves in Cal-
ifornia.” Id.
The situation here is similar to those in Bancroft & Masters
and Metropolitan Life. The complaint alleges that Walden
fraudulently executed a false and misleading probable cause
affidavit, used it to encourage the U.S. Attorney in Georgia to
prosecute a forfeiture action, and thereby sought to obtain the
funds for the Atlanta DEA.20 These allegations are analogous
to an allegation that Walden attempted to defraud Fiore and
Gipson of the seized funds. See Rivera v. Philip Morris, Inc.,
395 F.3d 1142, 1155 (9th Cir. 2005) (listing the elements of
fraud under Nevada law). According to the complaint, Wal-
den falsely and with misleading omissions represented in the
probable cause affidavit that the Atlanta DEA was entitled to
the funds he knew rightfully belonged to Fiore and Gipson,
whom he knew had a significant connection to Nevada. And
the fraudulent execution of the probable cause affidavit was
20
Had the forfeiture action been successful, the funds would have been
transferred “to any Federal agency or to any State or local law enforce-
ment agency which participated directly in the seizure or forfeiture of the
property.” 21 U.S.C. § 881(e)(1)(A).
FIORE v. WALDEN 8965
intended to assist in the retention and eventual forfeiture of
Fiore and Gipson’s funds, actions which, Walden knew,
would have their consequences felt in Las Vegas, see Ibra-
him, 538 F.3d at 1259, the location to which he knew the
funds should rightfully have been returned. Moreover, after
Fiore and Gipson forwarded all of their documentation, Wal-
den likely knew, if he did not know before, that Fiore and
Gipson were professional gamblers with significant ties to
Nevada and that seizing and attempting to keep their “bank”
and their earnings would disrupt their business activities in
Nevada. See Bancroft & Masters, 223 F.3d at 1087 (holding
that the express aiming requirement was satisfied when defen-
dant sent a letter to a company in Virginia with the alleged
intent and result of disrupting the plaintiff’s California busi-
ness).
In sum, with regard to the filing of the false probable cause
affidavit, Walden individually targeted Fiore and Gipson, as
he was aware of their significant connection to Nevada and of
the likely impact of his defrauding actions on their property
and business in Nevada. Under our case law, these facts sat-
isfy the express aiming prong of the Calder-effects test.
c. Foreseeable Harm
[12] The final prong of the Calder-effects test is the
requirement that the conduct at issue caused foreseeable harm
in the forum. We “do[ ] not require that the ‘brunt’ of the
harm be suffered in the forum.” Brayton Purcell, 606 F.3d at
1131 (quoting Yahoo!, 433 F.3d at 1207). Instead, the
foreseeable-harm “element is satisfied when defendant’s
intentional act has ‘foreseeable effects’ in the forum.” Id. “If
a jurisdictionally sufficient amount of harm is suffered in the
forum state, it does not matter that even more harm might
have been suffered in another state.” Yahoo!, 433 F.3d at
1207.
[13] The foreseeable harm factor, thus understood, is read-
ily satisfied here. During their initial encounter, Walden knew
8966 FIORE v. WALDEN
from their plane tickets, and from the San Juan DEA agent,
that Fiore and Gipson were heading to Las Vegas, along with
their $97,000. Moreover, Fiore and Gipson had explained at
the airport that they were professional gamblers, and Fiore
provided some documentation regarding her funds. After
arriving in Nevada, Fiore and Gipson provided additional
documentation of the legitimacy and sources of the funds.
Consequently, Walden knew, by the time he wrote the fraudu-
lent probable cause affidavit, that the money seized repre-
sented their professional earnings. The documentation also
demonstrated that he had seized their $30,000 “bank,” which
they needed to pursue their trade in Nevada. Although the
funds were eventually returned to Fiore and Gipson, it is a fair
inference from the complaint that the return was delayed
while the prosecutor considered whether to go forward with
a forfeiture action on the basis of the false probable cause
affidavit and sought, unsuccessfully, to forestall a lawsuit
such as this one through execution of a release. The delay in
returning the funds to Fiore and Gipson in Las Vegas caused
them foreseeable harm in Nevada.
***
[14] Taken as a whole, then, Fiore and Gipson’s complaint
satisfies the Calder-effects test. The complaint’s allegations
establish that, by falsifying the probable cause affidavit and
attempting to secure permanently for the Atlanta DEA the
seized funds, Walden committed (a) intentional acts that (b)
individually targeted Fiore and Gipson in Nevada, and thus
were expressly aimed at Nevada, and (c) caused foreseeable
harm in Nevada. “An individual injured in [Nevada] need not
go to [Georgia] to seek redress from persons who, though
remaining in [Georgia] knowingly cause[d] injury in
[Nevada].” Calder, 465 U.S. at 790. Accordingly, Fiore and
Gipson have made a prima facie showing of purposeful direc-
tion. See Brayton Purcell, 606 F.3d at 1128-31.
FIORE v. WALDEN 8967
2. Forum-Related Conduct
We turn to the second part of the Schwarzenegger test:
forum-related conduct. 374 F.3d at 802.
This circuit “follows the ‘but for’ test” to determine forum-
related conduct. Menken v. Emm, 503 F.3d 1050, 1058 (9th
Cir. 2007) (quoting Myers, 238 F.3d at 1075). Fiore and Gip-
son must show that they would not have suffered the alleged
injuries in Nevada “but for” Walden’s false probable cause
affidavit and attempt to facilitate a forfeiture prosecution. See
id. As in Menken, the standard is “easily met” here. Id. at
1059.
[15] Fiore and Gipson have alleged that they would not
have been deprived of their “bank” and the proceeds of their
gambling trip for nearly seven months but for the seizure of
all of their money in Atlanta, combined with Walden’s
actions that helped delay the return of the funds. Had Walden
not filed the false probable cause affidavit, one can infer, the
funds would have been returned considerably sooner. The
forum-related conduct factor is therefore present.
3. Reasonableness Determination
[16] As Fiore and Gipson have met their burden of satisfy-
ing the first two parts of the Schwarzenegger test for estab-
lishing personal jurisdiction in Nevada, the burden shifts to
Walden to satisfy the third part — “ ‘present[ing] a compel-
ling case’ that the exercise of jurisdiction would not be rea-
sonable” in Nevada. Menken, 503 F.3d at 1057 (quoting
Schwarzenegger, 374 F.3d at 802). To determine reasonable-
ness, we balance seven factors:
[(a)] the extent of the defendants’ purposeful inter-
jection into the forum state’s affairs; [(b)] the burden
on the defendant of defending in the forum; [(c)] the
extent of conflict with the sovereignty of the defen-
8968 FIORE v. WALDEN
dants’ state; [(d)] the forum state’s interest in adjudi-
cating the dispute; [(e)] the most efficient judicial
resolution of the controversy; [(f)] the importance of
the forum to the plaintiff’s interest in convenient and
effective relief; and [(g)] the existence of an alterna-
tive forum.
Id. at 1058 (quoting CE Distribution, LLC v. New Sensor
Corp., 380 F.3d 1107, 1112 (9th Cir. 2004)).
a. Extent of Purposeful Interjection into Affairs of
Forum State
Regarding the first factor, Walden argues that because the
initial search and seizure occurred in Georgia, his actions did
not inject him into the affairs of Nevada. We have recognized
that circumstances may exist where “the level of purposeful
injection into the forum supports a finding of purposeful
availment yet still weighs against the reasonableness of juris-
diction.” Dole Food, 303 F.3d at 1115. But that hypothetical
situation does not exist here.
When Walden sought out Fiore and Gipson at their board-
ing gate at the Atlanta airport, he knew that their presence in
Georgia was fleeting, and that they were going to Nevada.
Without probable cause, he seized all of Fiore and Gipson’s
money, approximately $97,000, which also was destined for
Nevada. Even if Walden did not know at the time he seized
the funds that Fiore and Gipson had ongoing, substantial con-
nections to Nevada, he necessarily learned of these connec-
tions at some point before providing the alleged false
probable cause affidavit and referring the case for forfeiture
proceedings.
[17] As it turned out, the impact of the intentional torts
alleged, which involved taking a large sum of money from
Fiore and Gipson, would necessarily have their primary
impact where the funds were meant to be kept and used,
FIORE v. WALDEN 8969
Nevada. As an airport law enforcement officer, Walden was
necessarily aware that his actions would often have their prin-
cipal impact outside of Georgia, as many of the people he
investigates are in Atlanta only on their way to somewhere else.21
In that sense, Walden’s job necessitates regularly interjecting
himself into affairs of other jurisdictions. By preventing the
$97,000 from reaching the intended destination, Nevada, Wal-
den prevented Fiore and Gipson from using their legitimate
earnings there, and deprived Nevada banking and the Nevada
tax base of the money for a considerable time. In short,
although he never stepped foot in Nevada, Walden’s “ ‘pur-
poseful interjection into [Nevada] was significant.’ ” Ibrahim,
538 F.3d at 1259 (quoting Ziegler v. Indian River County, 64
F.3d 470, 475 (9th Cir. 1995)).
b. Burden of Defending in the Forum
Concerning the second factor, Walden maintains that he
would be burdened because he has never resided, visited,
owned property, or conducted business in Nevada. Were Wal-
den a local small business person or an airport employee, his
argument might well have force. But in fact, Walden was
working as a federal law enforcement officer, which is the
only reason he could seize the funds or seek to facilitate their
forfeiture.
21
The Atlanta airport is a major transportation hub. A fact sheet pub-
lished by the airport states that, since 1998, the Atlanta airport has been
the busiest passenger airport in the world, with an average of more than
240,000 passengers a day. See Fact Sheet, Hartsfield-Jackson Atlanta Int’l
Airport (2011), available at http://www.atlanta-airport.com/Passenger/pdf/
Fact_Sheet_2011.pdf (last viewed Jul. 13, 2011). In August 2006, the
month Fiore and Gipson transferred planes in Atlanta, more than 3.6 mil-
lion passengers took flights arriving at the Atlanta airport, and approxi-
mately the same number boarded flights leaving the Atlanta airport. See
Monthly Airport Traffic Report, Dep’t of Aviation, Hartsfield-Jackson
Atlanta Int’l Airport (Aug. 2006), available at http://www.atlanta-
airport.com/docs/Traffic/200608.pdf (last viewed Jul. 13, 2011).
8970 FIORE v. WALDEN
When federal employees are sued under Bivens, the gov-
ernment, as a rule, provides for their defense, and, ultimately,
indemnifies them. See 28 C.F.R. § 50.15. As Fiore and Gip-
son pointed out in their brief to this court, Walden appeared
in Nevada “represented by the world’s largest law firm with
offices in all fifty states and providing defense free of charge
(The Office of the United States Attorney).” On appeal, Wal-
den is represented by the appellate staff of the Civil Division
of the Department of Justice in Washington, D.C., which
often appears in this court. Fiore and Gipson, in contrast, had
to retain counsel to seek redress for their alleged constitu-
tional injuries. Walden’s burden in defending this case is thus
small as compared to the likely burden on Fiore and Gipson
were the case brought in Georgia. This factor therefore does
not weigh in favor of Walden, although it would in all proba-
bility weigh in favor of many airport-connected defendants
not associated with the federal government.
c. Extent of Conflict with Sovereignty of
Defendant’s State
The third factor, the extent of conflict with the sovereignty
of Georgia, favors Fiore and Gipson. This is a federal action
that will be resolved in federal court. The federal government,
not Georgia, was the entity on whose behalf the funds were
seized and retained. And as Fiore and Gipson have no connec-
tion to Georgia, Goergia has no interest in protecting their
interests. Consequently, redress of Walden’s tortious conduct
that injured Nevada residents in Nevada will not “infringe on
the sovereignty of [Walden’s] home state of [Georgia].” Ibra-
him, 538 F.3d at 1259.
d. Interest of Forum State in Adjudicating the
Dispute
[18] Nevada has “ ‘a strong interest in providing an effec-
tive means of redress for its residents who are tortiously
injured.’ ” Id. (quoting Ziegler, 64 F.3d at 475). Fiore and
FIORE v. WALDEN 8971
Gipson are Nevada residents; a substantial portion of their
$97,000 that Walden seized originated in Nevada; the money
was en route to Nevada when seized; the seized money was
destined to enter Nevada’s economy and tax base; the money
eventually was returned to Fiore and Gipson in Las Vegas,
Nevada; and Fiore and Gipson have incurred considerable
attorneys’ fees in Nevada in securing the return of their
unlawfully seized, legitimate earnings and in filing this action
to redress the financial injuries they suffered in Nevada. For
all these reasons, Nevada has a considerable interest in adjudi-
cating this dispute. See id.e. Most Efficient Resolution of the Controversy
The fifth factor concerns efficiency of the forum, a consid-
eration that turns primarily on the location of witnesses and
evidence. See Menken, 503 F.3d at 1060-61. Fiore and Gipson
represent that their witnesses likely will include: three people
from San Juan, Puerto Rico; three from Atlanta, Georgia; one
from Quantico, Virginia; and at least Fiore and Gipson from
Las Vegas, Nevada. If Walden places at issue Fiore’s and
Gipson’s reputations as proficient, practicing gamblers, addi-
tional Nevada witnesses likely will be necessary.
Fiore and Gipson also emphasize that their documentation
was generated in and is located in Nevada. These documents,
including voluminous records sent to Walden from Nevada,
which evidence that Fiore and Gipson are professional gam-
blers and that the cash in their possession, unremarkable given
their trade, did not provide probable cause for Walden’s con-
tinued seizure and attempted forfeiture of their funds. More-
over, Fiore and Gipson argue that most of the documentation
relevant to Walden’s actions is located in the Department of
Justice in Washington, D.C., in the DEA headquarters in
Quantico, Virginia, or in Nevada, not in Georgia.
In contrast, Walden argues only that the witnesses in Geor-
gia are the most important, that the “operative versions” of
8972 FIORE v. WALDEN
Fiore and Gipson’s documents are “those received by DEA in
Georgia.”
Overall, this factor is fairly evenly balanced, weighing, if
at all, only slightly in favor of Fiore and Gipson.
f. Importance of Forum to Plaintiffs’ Convenient
and Effective Relief
The sixth factor, the importance of Nevada to Fiore and
Gipson’s convenient and effective relief, generally is not
given much weight in this circuit. See Dole Food, 303 F.3d
at 1116 (noting that “in this circuit, the plaintiff’s convenience
is not of paramount importance”). It does, however, weigh in
Fiore and Gipson’s favor. Fiore and Gipson are Nevada resi-
dents; the seizure of their gambling proceeds by Walden
occurred as they were changing planes in Georgia, a state to
which they appear to have had no other connection. All of
their financial injury was realized in Nevada, which is also the
location of their documentation. Fiore and Gipson also have
a continuing relationship with a Nevada law firm. For all
these reasons, Nevada is a convenient and effective forum for
them.
g. Existence of an Alternative Forum
For the reasons given in evaluating the preceding six fac-
tors, although Georgia is an available forum in the sense that
the suit against Walden could have been brought there, Geor-
gia is not a preferable alternative to Nevada. In addition, at
this preliminary stage of proceedings, the parties have not had
the benefit of discovery to identify the other DEA employee
who made relevant decisions regarding the false affidavit and
attempt to instigate forfeiture proceedings while retaining the
seized funds. According to the complaint, that individual
operated from Virginia. As to him or her, Georgia might not
be an available forum, but Nevada would be, for the same rea-
son it is a proper forum for suit against Walden.
FIORE v. WALDEN 8973
***
[19] Taken as a whole, the seven-factor reasonableness
analysis disfavors Georgia as a forum, and, overall, mildly
favors Nevada. Walden has not come close to making a “com-
pelling case” that exercise of jurisdiction over him in Nevada
would be unreasonable. See Schwarzenegger, 374 F.3d at 802.
4. Conclusion
Due process is met when there is “ ‘a degree of predictabil-
ity to the legal system that allows potential defendants to
structure their primary conduct with some minimum assur-
ance as to where that conduct will and will not render them
liable to suit.’ ” Burger King Corp v. Rudzewicz, 471 U.S.
462, 472 (1985) (quoting World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297 (1980)). The actions related to
the false probable cause affidavit satisfy the express aiming
prong, as well as the other requirements for personal jurisdic-
tion. Under Calder and Schwarzenegger, it is reasonable and
comports with traditional notions of fair play and substantial
justice for Fiore and Gipson to call Walden to answer in
Nevada for those deliberate actions.
That is not to say, and we are not holding, that intentional
tortious conduct aimed at a person where he or she is in transit
at an airport is sufficient, standing alone, to confer personal
jurisdiction over an airport-connected official or employee. In
this case, Walden did much more: He individually targeted
Fiore and Gipson in Nevada by creating a false and mislead-
ing probable cause affidavit and thus illegally seeking to fos-
ter the forfeiture of the funds to benefit the Atlanta DEA. His
conduct in doing so was expressly aimed at Nevada because
at that point, if not before, he knew that Fiore and Gipson had
ongoing and substantial connections to Nevada. If, as alleged,
he also knew that there was no legitimate reason to seek for-
feiture of the funds, his actions amounted to an attempt to
defraud Nevada residents. Moreover, the traditional weight
8974 FIORE v. WALDEN
given to a defendant’s inconvenience in having to litigate in
a forum in which he has few contacts does not apply in this
case, given that Walden can be represented just as easily by
the United States Attorney’s Office in Nevada as by the
Office in Georgia.
[20] Under these circumstances, the district court erred in
concluding that it lacked personal jurisdiction over Walden, at
least as to the portion of Fiore and Gipson’s complaint per-
taining to the false probable cause affidavit and resulting
delay in returning the funds.
C. Pendent Personal Jurisdiction
Under our case law, the district court may exercise pendant
personal jurisdiction over the remainder of Fiore and Gipson’s
claims even if there would not be personal jurisdiction over
them standing alone. Action Embroidery Corp. v. Atlantic
Embroidery, Inc., 368 F.3d 1174, 1181 (9th Cir. 2004). Action
Embroidery was the first case in this court adopting the doc-
trine of pendent personal jurisdiction, id. at 1181, under which
“a court may assert . . . jurisdiction over a defendant with
respect to a claim for which there is no independent basis of
personal jurisdiction so long as it arises out of a common
nucleus of operative facts with a claim in the same suit over
which the court does have personal jurisdiction.” Id. at 1180.
The facts underlying a particular claim need not exactly track
the facts underlying the claims for which there is personal
jurisdiction, so long as the core facts are the same. See CE
Distrib., 380 F.3d at 1113-14.22
Here, the core facts of all of Fiore and Gipson’s claims
22
In CE Distribution, this court approvingly cited a Seventh Circuit
opinion, Channell v. Citicorp Nat’l Svcs., Inc., 89 F.3d 379, 385 (7th Cir.
1996), which noted that only a “loose factual connection between the
claims” is necessary for the purposes of pendent jurisdiction. CE Distrib.,
380 F.3d at 1114.
FIORE v. WALDEN 8975
arise out of the same incident: Walden’s seizure of their funds
at the Atlanta airport. When he seized their funds, Walden
knew that Fiore and Gipson were traveling to Las Vegas and
that they had no connection to Georgia beyond their transit
through the airport. Walden first individually targeted Fiore
and Gipson when he confronted them at their gate as they
were about to board, and the funds then seized were the same
funds as to which forfeiture was sought through the submis-
sion of the false affidavit. Further, and critically, the false
affidavit was false — or not — in its description of the events
at the Atlanta airport surrounding the seizure. So the same
facts will have to be developed with regard to the search and
seizure and false affidavit claims. Consequently, even if those
facts are not sufficient independently to give rise to personal
jurisdiction over Walden for the initial seizure, they weigh
strongly in favor of the exercise of pendent personal jurisdic-
tion.
In Action Embroidery, this court accepted for purposes of
the appeal the defendant’s contention that there was no per-
sonal jurisdiction over state-law claims standing alone, but
held that the district court could exercise pendent personal
jurisdiction over them. 368 F.3d at 1180. We follow the same
course here and remand to the district court “to decide
whether to retain or dismiss the pendent [search and seizure]
claims.” Id. at 1181.
D. Venue
Although Walden raised the defense of improper venue in
the district court, the issue was not addressed once the court
determined that there was no personal jurisdiction over Wal-
den in Nevada. Because we have concluded otherwise, we
also consider his defense of improper venue, which he pur-
sues on appeal.
The controlling statute provides in relevant part: “A civil
action wherein jurisdiction is not founded solely on diversity
8976 FIORE v. WALDEN
of citizenship may, except as otherwise provided by law, be
brought only in . . . a judicial district in which a substantial
part of the events or omissions giving rise to the claim
occurred.” 28 U.S.C. § 1391(b)(2) (emphasis added). Walden
contends that Nevada is an improper venue for this action
because it has no relationship to the event about the seizure
of Fiore and Gipson’s $97,000 at the Atlanta airport.23
“[I]n a tort action, the locus of the injury [is] a relevant fac-
tor” in making this determination. Myers, 238 F.3d at 1076.
In Myers, the fact that “at least one of the ‘harms’ suffered by
23
Walden relies on Leroy v. Great W. United Corp., 443 U.S. 173(1979), and Sutain v. Shapiro & Lieberman, 678 F.2d 115 (9th Cir. 1982)
in arguing that Fiore and Gipson cannot establish venue under 28 U.S.C.
§ 1391(b)(2). Both of these cases, however, addressed § 1391(b) as it read
before amendments contained in the present version. Those amendments
changed language that had limited venue to districts “in which the claim
arose,” to provide that venue lies where “a substantial part of the events
or omissions giving rise to the claim occurred.” We have recognized this
distinction and noted that Leroy no longer can be used as Walden main-
tains. Newton v. Thomason, 22 F.3d 1455, 1464 & n.8 (9th Cir. 1994).
Moreover, in Sutain, the only event that occurred in the forum in question
was the appearance of a partner of the defendant accounting firm in Tax
Court, in response to a subpoena. 678 F.2d at 117. That such an event was
“not ‘substantial’ for the purposes of” establishing venue, id., does not
undermine our conclusions in this case.
Walden also urges us to rely on Stafford v. Briggs, 444 U.S. 527 (1980),
which held that 28 U.S.C. § 1391(e), addressing venue in civil actions
against officers of the United States acting in their official capacity, could
not be read to allow suits against individual officers for money damages
to go forward in any federal district in the country because to do so
“would place federal officers . . . in a very different posture in personal
damages suits from that of all other persons.” Id. at 544. Walden’s argu-
ment that finding venue proper in Nevada in this case would similarly
result in a precedent that allowed any law enforcement officer working in
a transportation hub to be sued in any forum in the country is contradicted
by our earlier analysis regarding personal jurisdiction. Moreover, Fiore
and Gipson do not maintain, and we are not holding, that law enforcement
officers who work at transportation hubs are subject to nationwide venue
because of their status. For venue to lie, the terms of § 1391(b)(2) must
be met, as they are in this case.
FIORE v. WALDEN 8977
Plaintiffs . . . was felt in Nevada” was sufficient to make
venue proper in Nevada. Id. Fiore and Gipson similarly suf-
fered harm in Nevada. All the economic injuries suffered by
Fiore and Gipson were realized in Nevada, including their
loss of use and interest on the funds for nearly seven months.
The facts concerning the origin and legitimacy of the $97,000
are also connected to Nevada: The $30,000 “bank” originated
in Nevada; Walden fabricated a fraudulent probable cause
affidavit to institute forfeiture proceedings against Fiore and
Gipson after they had returned to their residences in Nevada,
which affected them there; the documentation of the legiti-
macy of the money was sent from Nevada; and the funds
eventually were returned to Fiore and Gipson in Nevada, veri-
fying the lack of probable cause for forfeiture. The arrival of
the funds in Nevada was the event that caused Fiore and Gip-
son’s cause of action to mature, because their case was not
ripe until the government abandoned the forfeiture case
against them. See Albright v. Oliver, 510 U.S. 266, 280 (1994)
(Ginsburg, J., concurring). Taking all these events together, “a
substantial part of the events or omissions giving rise to the
claim occurred” in Nevada. 28 U.S.C. § 1391(b)(2). Venue is
proper in the District of Nevada.
III. CONCLUSION
[21] Walden seized all of the large amount of money Fiore
and Gipson were carrying with them as they travelled from
San Juan to Las Vegas via Atlanta. Although Fiore and Gip-
son sent Walden, from Nevada, documentation establishing
the legitimate sources of their funds, he persisted in seeking
forfeiture of their money. Walden’s intentional acts with
regard to the false probable cause affidavit and the consequent
delay in returning their money were expressly aimed at
Nevada and so satisfy the requirements for personal jurisdic-
tion. As to the search and seizure claim, we are remanding it
to the district court for the exercise of discretion with regard
to pendent personal jurisdiction. We also hold that venue is
proper in the District of Nevada.
8978 FIORE v. WALDEN
IV. POST-SCRIPT
A.
As the foregoing analysis makes clear, Judge O’Scannlain’s
dissent from the denial of rehearing en banc criticizes an opin-
ion we did not write. Fiore and Gipson’s complaint alleges
not only that Walden seized their funds in violation of the
Fourth Amendment—a claim we assume does not indepen-
dently support personal jurisdiction in Nevada, see supra page
8957—but also that among other things, by filing a false affi-
davit, he effected a continued seizure of these funds, also in
violation of the Fourth Amendment. Judge O’Scannlain
ignores these latter allegations, but they are clearly—indeed,
predominantly—pleaded in the complaint, which alleges:
102. It is clearly established law that any reason-
able police officer would recognize the defendants
undertook the following actions in violation of the
Fourth Amendment of the United States Constitu-
tion:
i. In initially seizing the funds at issue
despite a lack of probable cause that would
have been recognized by a reasonable offi-
cer in the employ of the United States;
ii. In retaining the funds despite an abil-
ity to return after actually reaching a con-
clusion that plaintiffs’ funds were not the
result of any drug related activity;
iii. In drafting and forwarding for prose-
cution a probable cause affidavit for the
continued seizure of plaintiffs’ funds while
knowing that the affidavit contained false
statements of fact to support the continued
retention, and without such false statements
FIORE v. WALDEN 8979
would have indicated a clear lack of proba-
ble cause; and
iv. In willfully seeking to prosecute the
funds while withholding exculpatory infor-
mation known to them.
v. In willfully and intentionally with-
holding the scope of the exculpatory infor-
mation to the Assistant United States
Attorney to whom the defendants for-
warded the matter for prosecution.
After that, the summarizing paragraph states:
110. Defendants’ actions constitute a violation of
U.S. Const. Amd. IV in the unreasonable seizure and
unreasonable continued seizure of the plaintiff’s
funds. (Emphasis added)
As we have explained, according to the complaint, Walden
was well aware of Fiore, Gipson, and the seized funds’ sub-
stantial connection to Nevada by the time he filed the false
affidavit, sought forfeiture of the funds, and withheld exculpa-
tory evidence. Under our caselaw and that of the Supreme
Court, these known connections are more than sufficient to
support personal jurisdiction. Moreover, far from holding that
the plaintiffs’ residence is determinative, as Judge
O’Scannlain suggests, we have expressly held that it is not.
See supra page 8961-62. Although the opinion Judge
O’Scannlain imagines we issued might well merit further
review, the one we actually wrote does not.
B.
We agree with Judge McKeown’s statement in her dissent
from the denial of rehearing en banc that for Nevada constitu-
tionally to exercise jurisdiction over Walden, he would need
8980 FIORE v. WALDEN
to be a “ ‘primary participant[ ] in an alleged wrongdoing
intentionally directed at’ ” Nevada. __ F.3d __, __ (9th Cir.
2012) (McKeown, J., dissenting from denial of rehearing en
banc) (quoting Calder, 465 U.S. at 790). We disagree, how-
ever, for reasons we have explained, with her contention that
this standard has not been met here.
In particular, contrary to Judge McKeown’s assertion that
“Nevada was neither a ‘focal point’ nor relevant to the affida-
vit,” the complaint alleges that the “funds were readily identi-
fiable [as] originating and returning to Las Vegas as the
ordinary static place where they were situated as plaintiffs’
bank for gambling” and that, when eventually returned, the
funds were returned to Nevada. Fiore and Gipson allege that,
by filing a false affidavit to support continued retention of
these funds, Walden wrongfully perpetuated a seizure of
funds he knew originated in and were returning to Nevada,
belonging to people he knew had substantial connections to
that state, all in an effort “to support the continued retention”
of the funds. That is, the complaint alleges that Walden was
a primary participant in a wrongdoing intentionally and
directly—not just foreseeably or derivatively— targeting
Nevada funds and persons.
Under our case law, these allegations unquestionably sup-
port personal jurisdiction in Nevada. Our cases hold that
where a defendant’s actions have only an indirect or unin-
tended impact on forum-resident plaintiffs, even where a
defendant knows of a plaintiff’s forum-residence and could
foresee such an impact, the express-aiming requirement is not
satisfied. See, e.g., Schwarzenegger v. Fred Martin Motor
Co., 374 F.3d 797 (9th Cir. 2004). In contrast, where —as in
this case —a defendant intentionally, individually, and
directly targets a person—or, as here, funds—known to have
strong connections with a forum, we have held the express-
aiming requirement satisfied. See Bancroft & Masters v.
Augusta Nat’l, 223 F.3d 1082, 1087 (9th Cir. 2000); see also
Dudnikov v. Chalk & Vermilion Fine Arts, 514 F.3d 1063,
FIORE v. WALDEN 8981
1076 (10th Cir. 2008) (citing approvingly Bancroft & Masters
and holding that express aiming was satisfied where the pur-
pose of defendant’s actions was to cause harm to forum-
resident plaintiffs).
The complaint alleges not that Walden inadvertently filed
a false affidavit, but rather that he intentionally filed an affi-
davit he knew was false, —allegations analogous to fraud.24
As this opinion discusses in detail, our caselaw firmly estab-
lishes that fraud directed at harming a particular person in a
forum meets the express aiming standard.
A straightforward application of circuit precedent to the
facts of this case leads easily to the conclusion that there is
indeed personal jurisdiction over Walden in Nevada: Walden
intentionally targeted persons and funds with substantial con-
nections to Nevada. He thus expressly aimed his conduct at
that state, providing a sufficient basis for personal jurisdic-
tion. There is nothing at all novel about this conclusion.
REVERSED and REMANDED.
IKUTA, Circuit Judge, dissenting:
Gambling, it is said, is a “sure way of getting nothing from
something.” Here, by contrast, two professional gamblers get
something from nothing. Although their complaint contains
nothing that would provide a basis for asserting personal
jurisdiction over the federal agent who allegedly violated their
Fourth Amendment rights, the majority finds “something” in
the complaint: specifically, the “false affidavit/forfeiture pro-
ceeding aspect” of their case. Maj. op. at 8955 (emphasis
24
Judge McKeown is concerned that the affidavit is not in the “record.”
Of course, that is because this case comes to us on a motion to dismiss.
At this juncture, the record is essentially limited to the complaint.
8982 FIORE v. WALDEN
added). This “aspect,” the majority determines, provides a
basis for personal jurisdiction over the federal agent, even
though it is neither a constitutional tort nor a state law claim,
and even though plaintiffs never argued that it was. And the
gamblers’ lucky streak does not end there: the majority then
reverses the district court for failing to discern this elusive
“aspect” and to apply the entirely discretionary (and rarely
invoked) doctrine of “pendent personal jurisdiction.” In fact,
the district court correctly determined that the complaint did
not make a prima facie showing that the federal agent pur-
posefully directed his actions to the forum state. Because the
district court did not err in dismissing the complaint for want
of personal jurisdiction, I dissent.
I
The complaint in this case relates the following tale. Gina
Fiore and Keith Gipson are professional gamblers. On their
return from a gambling trip to San Juan, Puerto Rico, their
“traveling bank”1 and winnings had grown to over $97,000,
which they divided between their carry-on bags and their
pockets. At the San Juan airport, TSA agents searched Gip-
son’s bag and found about $50,000. The agents also discov-
ered about $30,000 in Fiore’s carry-on. Upon spotting such
large sums of cash, the TSA agent called a supervisor, who
contacted DEA agent Michael Cuento and two others.
Fiore told Cuento that she and Gipson had departed from
the El San Juan Casino, where they had been gambling. Fiore
and Gipson showed Cuento valid California driver’s licenses,
volunteered that they had Nevada and California residences,
and indicated that they were returning to their residences in
Las Vegas. Cuento escorted them onto the plane, but he told
them they should not be surprised if they were asked further
questions.
1
A “traveling bank” is a significant amount of currency (here, tens of
thousands of dollars) carried by professional gamblers to cover traveling
expenses and give them a cushion if they suffer losses.
FIORE v. WALDEN 8983
Fiore and Gipson landed in Atlanta and proceeded to their
gate for their connecting flight to Las Vegas. There, they met
agent Walden and another DEA agent who called for a drug-
sniffing dog. Fiore and Gipson were (falsely, they say)
informed that the dog had alerted. Agent Walden seized their
cash, but assured them that if they produced receipts demon-
strating that the funds were legitimate, their money would be
returned. With that assurance, plaintiffs boarded their plane to
Las Vegas. From the fact that their checked bags did not make
it to Las Vegas with the plane, the disheveled state of the
items inside, and the absence of a TSA sticker, plaintiffs sur-
mised that the DEA, with the participation of agent Walden,
conducted a search of their checked baggage.
Upon their return, Fiore and Gipson forwarded to Walden
tax returns, receipts from their trip, their travel itinerary, and
hotel records showing that they had gambled enough to have
rooms “comped.” They explained that Gipson had played
under a legal alias he commonly used in gaming. They also
sent a “win record” on El San Juan letterhead. Despite, as
plaintiffs allege, “necessarily recogniz[ing] that the seized
funds were not related to any illicit drug trade and were not
contraband or the proceeds of contraband,” Walden did not
return their funds. Not only that, but they allege “on informa-
tion and belief” that Walden, along with two unnamed defen-
dants, worked “to provide a false probable cause affidavit,
known by each to be false, for forwarding to the U.S. attorney
in Georgia to prosecute a forfeiture action,” an affidavit that
Fiore and Gipson contend omitted exculpatory information.
Even though Walden necessarily recognized the funds’
legitimacy, plaintiffs allege, he did not return the funds and
referred the matter for prosecution because he “personally dis-
approved” of the strategies plaintiffs used in gambling.2 The
2
Walden’s uncontested declaration, by contrast, states that he lacked
any authority over the seized cash once it had been transferred to a secure
location for processing and storage.
8984 FIORE v. WALDEN
AUSA to whom the matter was referred ultimately ordered
the funds returned some six months later for lack of probable
cause.
If plausible, this story might support Fiore and Gipson’s
claim that Walden seized their traveling bank in violation of
their Fourth Amendment rights. But there is one problem:
Fiore and Gipson filed the complaint against Walden in a dis-
trict court in Nevada, but failed to allege that Walden had any
contacts with that state for purposes of personal jurisdiction.
See Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)
(personal jurisdiction cannot constitutionally be asserted
unless defendant has “certain minimum contacts with [the
forum State] such that the maintenance of the suit does not
offend ‘traditional notions of fair play and substantial jus-
tice’ ” (quoting Milliken v. Meyer, 311 U.S. 457, 463
(1940))). Notably absent from plaintiffs’ complaint is any
allegation:
• that plaintiffs told Walden of their Las Vegas res-
idences;
• that Cuento ever spoke with Walden;
• that Cuento told Walden of plaintiffs’ connection
to Las Vegas;
• that plaintiffs showed Walden any Nevada-issued
identification (in fact, Agent Walden’s uncon-
tested declaration confirms that Fiore and Gipson
showed him California, not Nevada, licenses);
Indeed, the complaint does not expressly allege that even
after the seizure, Walden became aware that plaintiffs’ resi-
dence was in Nevada; it alleges only that plaintiffs forwarded
their tax returns, trip receipts, and the like to Walden “from
Las Vegas.” And Walden’s uncontested declaration makes
clear that he never contacted plaintiffs’ attorney “or anyone
FIORE v. WALDEN 8985
else in Nevada,” and has never lived in, been to, owned prop-
erty or conducted any business in Nevada.
Given these facts, and applying the applicable precedent,
see Calder v. Jones, 465 U.S. 783 (1984); Schwarzenegger v.
Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004),
the district court concluded that Walden’s search of plaintiffs’
luggage and seizure of the money “was expressly aimed at
Georgia, not Nevada”: the search occurred in Georgia, as did
the questioning and the seizure. It therefore dismissed plain-
tiffs’ action for want of personal jurisdiction. As explained
below, the district court’s thorough and well-reasoned deci-
sion was clearly correct.
II
For a court to have specific personal jurisdiction over a
defendant in a tort suit, (1) the defendant must have purpose-
fully directed specific activities toward the state forum, (2) the
plaintiff’s claim must arise out of or relate to those specific
forum-related activities, and (3) the exercise of jurisdiction
must comport with “fair play and substantial justice.” Schwar-
zenegger, 374 F.3d at 802; Fed R. Civ. P. 4(k)(1)(A). In other
words, in order for the district court to have asserted personal
jurisdiction over Walden, it would have had to conclude that
Walden purposefully directed the actions that form the basis
of plaintiffs’ claim to Nevada.
In determining whether the defendant “purposefully direct-
ed” the activities which are the subject of plaintiff’s claim to
the forum state, we consider whether the defendant “(1) com-
mitted an intentional act, (2) expressly aimed at the forum
state, (3) causing harm that the defendant knows is likely to
be suffered in the forum state.” Dole Food Co., Inc. v. Watts,
303 F.3d 1104, 1111 (9th Cir. 2002) (citing Calder v. Jones,
465 U.S. at 788-89). As a matter of simple logic, a defendant
cannot “expressly aim” an intentional act at a victim’s home
state if the defendant committing the action does not even
8986 FIORE v. WALDEN
know that the victim has any connection with that state. See
Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d
1082, 1087 (9th Cir. 2000) (“From the available cases, we
deduce that the [‘express aiming’] requirement is satisfied
when the defendant is alleged to have engaged in wrongful
conduct targeted at a plaintiff whom the defendant knows to
be a resident of the forum state.”); cf. Ibrahim v. Dep’t of
Homeland Sec., 538 F.3d 1250, 1258 (9th Cir. 2008) (approv-
ing the exercise of personal jurisdiction in California where
defendant, a Virginia resident with no other ties to California,
ordered local police to prevent plaintiff from flying out of the
San Francisco airport and to detain her for further question-
ing).
This framework creates a problem for Fiore and Gipson:
when Walden seized the cash, he knew only that the plaintiffs
had California driver’s licenses and were headed to Las
Vegas. The complaint does not even hint that Walden learned
of plaintiffs’ ties to Las Vegas until after the seizure was
complete. Because there is no allegation that Walden purpose-
fully directed the actions that form the basis of plaintiffs’
claim to Nevada, a Nevada district court necessarily lacks per-
sonal jurisdiction over Walden. That should be the end of the
matter.3
III
But it is not, because the majority shows more creativity
construing the complaint than Fiore and Gipson did drafting
it. That is, the plaintiffs allege one simple claim: a violation
of their Fourth Amendment rights to be free of unreasonable
searches and seizures. The gravamen of Fiore and Gipson’s
complaint is that “[t]he search and withholding of [their]
checked baggage . . . was without probable cause, unreason-
3
Indeed, the majority concedes that the complaint does not allege that
Walden knew of plaintiffs’ Nevada residency when he seized the $97,000.
See maj. op. at 8961.
FIORE v. WALDEN 8987
able, and also constituted an illegal search and seizure by the
defendants.” Or, as they later put it, “Defendants’ actions con-
stitute a violation of U.S. Const. Amd. IV in the unreasonable
seizure and unreasonable continued seizure of the plaintiff’s
funds.”
The majority, however, purports to flush out a second claim
roosting amidst the lines of the complaint. According to the
majority, there is a “false affidavit/forfeiture proceeding
aspect of [the] case,” maj. op. at 8955, which gives rise to “an
allegation that Walden attempted to defraud Fiore and Gipson
of the seized funds,” maj. op. at 8964 (emphasis added).
Because, the majority explains, at the time Walden prepared
the false probable cause affidavit, he knew plaintiffs had sig-
nificant connections with Nevada, the district court erred in
not asserting personal jurisdiction over Walden based on this
false affidavit “aspect” of the case. Maj. op. at 8964-65.
The majority’s analysis completely misses the mark for a
crucial reason: the complaint did not include a fraud claim.
We analyze personal jurisdiction on a claim-by-claim basis.
See, e.g., CollegeSource, Inc. v. AcademyOne, Inc., No. 09-
56528, ___ F.3d ___, 2011 WL 3437040, at *7 (9th Cir. Aug.
8, 2011) (focusing the jurisdictional inquiry on plaintiff’s
state law misappropriation claim); see also Remick v. Man-
fredy, 238 F.3d 248, 255 (3d Cir. 2001) (stating that a district
court’s specific personal jurisdiction “is claim specific,”
meaning that personal jurisdiction over one defendant as to a
particular claim does not necessarily give the court personal
jurisdiction over that same defendant as to the plaintiff’s other
claims). The only claim in this complaint is a Fourth Amend-
ment claim for seizure of property. There is no claim that
Walden’s preparation of the allegedly fraudulent affidavit vio-
lated plaintiffs’ Fourth Amendment rights,4 and it is doubtful
that such a constitutional tort even exists.
4
One combs through the complaint in vain to find any argument that the
creation of a false probable cause affidavit is a separate constitutional tort.
Rather, the plaintiffs point to the false affidavit to support their Fourth
Amendment claim, stating that “[t]he law is clearly established that falsi-
fying evidence on an affidavit in support of a seizure or a search renders
the seizure or search unconstitutional.”
8988 FIORE v. WALDEN
Nor did the plaintiffs bring a state fraud claim. In fact, the
plaintiffs do not appear to bring any state claim at all: they
claimed federal jurisdiction based on the general federal ques-
tion statute (28 U.S.C. § 1331) and 28 U.S.C. § 1356,5 and do
not invoke diversity jurisdiction. For that matter, the com-
plaint does not allege over $75,000 in controversy as required
for diversity jurisdiction, see 28 U.S.C. § 1332(a), or facts
from which it is “facially apparent” that the “jurisdictional
amount is in controversy,” Singer v. State Farm Mut. Auto.
Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997) (internal quotation
omitted). Nor does the complaint invoke supplemental juris-
diction.
Indeed, it is doubtful that the elements of a state law fraud
cause of action are even lurking in the complaint. Under
Nevada law, the elements of a fraud cause of action are (1) a
false representation by defendant; (2) defendant’s knowledge
or belief that the representation was false; (3) defendant’s
intent that plaintiff act or refrain from acting in reliance upon
the misrepresentation; (4) plaintiff’s justifiable reliance upon
it; and (5) damage to plaintiff as a result. Rivera v. Philip
Morris, Inc., 395 F.3d 1142, 1155 (9th Cir. 2005). The com-
plaint does not, however, allege that Walden intended plain-
tiffs to act or refrain from acting in reliance on the false
affidavit, or that plaintiffs justifiably relied on the affidavit.
In any event, an unarticulated state law claim could not
give the majority a basis for reversing the district court. When
the district court, which had original jurisdiction only over the
Fourth Amendment claim, dismissed that claim for lack of
personal jurisdiction, it was well within its discretion to
decline to exercise supplemental jurisdiction over any implic-
itly lurking state law claim. See 28 U.S.C. § 1367(c)(3); Bry-
5
28 U.S.C. § 1356 provides: “The district courts shall have original
jurisdiction, exclusive of the courts of the States, of any seizure under any
law of the United States on land or upon waters not within admiralty and
maritime jurisdiction . . . .”
FIORE v. WALDEN 8989
ant v. Adventist Health Sys./W., 289 F.3d 1162, 1165 (9th Cir.
2002) (district court’s decision to decline supplemental juris-
diction reviewed for abuse of discretion).
Because plaintiffs based their claim on Walden’s seizure of
the cash (which not even the majority contends was purpose-
fully directed toward Nevada) and did not, as the majority
suggests, allege a fraud claim, it is impossible to say that
plaintiffs’ claim arose out of or related to Walden’s conduct
in preparing the allegedly false probable cause affidavit. See
Schwarzenegger, 374 F.3d at 802.
IV
The majority’s reasoning threatens a substantial expansion
of the scope of personal jurisdiction. If a district court com-
mits reversible error by failing to give due weight to the “false
affidavit/forfeiture proceeding aspect” of a complaint, maj.
op. at 8955 (emphasis added), even where the parties never
asked the court to do so, district courts must scour complaints
to find some allegation of wrongful action that might have
occurred after the defendant became aware of the plaintiff’s
residence. Such a ruling essentially requires courts to assert
personal jurisdiction over any defendant who learns about the
home state of the plaintiff at any time after the defendant
engaged in the conduct that formed the basis of plaintiff’s
claim. To ensure this result, plaintiffs need only assert that the
defendant knew their home state and subsequently engaged in
some wrongful act.
Obviously, this loosens the due process protection afforded
defendants beyond anything allowed by the Supreme Court,
which recently reemphasized that personal jurisdiction is not
an outmoded legal fiction, but remains a vital part of due pro-
cess and fair play. See J. McIntyre Machinery, Ltd. v.
Nicastro, 131 S. Ct. 2780 (2011) (striking down the New Jer-
sey Supreme Court’s broad ruling that a state court had per-
sonal jurisdiction over a company despite the defendant’s lack
8990 FIORE v. WALDEN
of minimum contacts with the state.) As the plurality noted,
“[f]reeform notions of fundamental fairness divorced from
traditional practice” do not give a state lawful judicial author-
ity over a defendant, id. at 2787; see also id. at 2791 (Breyer,
J., concurring in the judgment) (rejecting the state court’s
adoption of “a broad understanding of the scope of personal
jurisdiction based on its view that ‘[t]he increasingly fast-
paced globalization of the world economy has removed
national borders as barriers to trade’ ” (alteration in original)
(quoting 987 A.2d 575, 577 (N.J. 2010)).
The majority’s decision today unwisely broadens the scope
of personal jurisdiction, erroneously rejects the district court’s
adherence to “traditional practice” in favor of its own
“[f]reeform notions” of fairness, id. at 2787 (plurality opin-
ion), and holds that Walden is subject to the jurisdiction of a
Nevada court despite his having no contacts whatsoever to
that state in connection with plaintiffs’ Fourth Amendment
claim. Because “those who live or operate primarily outside
a State have a due process right not to be subjected to judg-
ment in its courts as a general matter,” id., I dissent.
Postscript
The majority’s postscript to the opinion amplifies the error
of the opinion in two ways. First, it expands the meaning of
a “claim” for purposes of personal jurisdiction. Second, it
completes the opinion’s evisceration of the test for purposeful
direction. Together, these changes signal that the traditional
due process limitations on a court’s authority to assert per-
sonal jurisdiction over an out-of-state defendant no longer
pose any meaningful constraint on courts in the Ninth Circuit.
A
In its most recent changes, the majority continues its search
for a theory to save the plaintiffs’ complaint. The original
opinion’s personal jurisdiction analysis relied entirely on the
FIORE v. WALDEN 8991
false affidavit “aspect” of plaintiffs’ complaint. Maj. op. at
8955, 8957, 8965. According to the majority, this aspect
“amounted to an attempt to defraud” Fiore and Gipson. Maj.
op. at 8973. Under the pressure of an en banc call, the major-
ity has promoted this false affidavit and fraud “aspect” of the
complaint to a full-blown cause of action for the “continued
seizure” of plaintiffs’ funds “in violation of the Fourth
Amendment.” Maj. op. at 8978. Because this is “arguabl[y]”
a cause of action, the majority’s amended opinion now asserts
that personal jurisdiction may be derived from this newly
identified claim. Maj. op. at 8956 n. 17.
This is a dramatic and unjustified shift. Until the majority’s
postscript, no one involved in the litigation—not the plain-
tiffs, the defendant, or any court—had read the complaint as
containing two separate Fourth Amendment claims. Neither
plaintiffs’ briefs nor their arguments before this court or the
district court raised any such theory. Rather, plaintiffs argued
that the court had personal jurisdiction over Walden based on
the single claim they actually pled: Walden’s initial seizure of
funds at the airport. Nothing was mentioned about a “contin-
ued seizure.” And with good reason: no court has ever given
an indication that a Bivens claim for a “continued seizure”
even exists.6 Naturally, Walden never challenged an argument
not made.
6
Three circuits have squarely considered and rejected the theory that
“continued seizures” violate the Fourth Amendment. See Gonzalez v. Vill.
of W. Milwaukee, 671 F.3d 649, 660 (7th Cir. 2012) (“[C]ontinued reten-
tion of unlawfully seized property is not a separate Fourth Amendment
wrong.”); Lee v. City of Chicago, 330 F.3d 456, 461-66 (7th Cir. 2003);
Fox v. Van Oosterum, 176 F.3d 342, 351-52 (6th Cir. 1999); United States
v. Jakobetz, 955 F.2d 786, 802 (2d Cir. 1992). Moreover, as the Supreme
Court has recently reiterated, courts should be extremely cautious about
extending Bivens to new constitutional claims. See Minneci v. Pollard,
132 S. Ct. 617, 620 (2012) (refusing to imply a Bivens action for Eight
Amendment violations by employees of a privately operated federal
prison); id. at 622 (noting that the Court has not implied a new Bivens
action since 1980).
8992 FIORE v. WALDEN
But now, after the appeal, its published opinion, and the en
banc proceedings, the majority has changed the rules of the
game. Under the majority’s new theory, a court can rest its
personal jurisdiction holding on any factual allegation in a
complaint that a court deems to “arguably” create a cause of
action—whether actually argued by the plaintiff or not. A
“claim” can be “arguable” even though no court has ever rec-
ognized it, and it can be discovered by the court sua sponte
at any stage in the litigation, including during en banc pro-
ceedings. This unbounded approach will impose enormous
costs on litigants and state courts, both of whom must now
bear the burden of scouring complaints in order to divine the
personal jurisdiction implications of each and every factual
allegation.
B
In addition to expanding what it means to be a “claim” for
purposes of personal jurisdiction, the majority’s postscript
comes close to erasing whatever is left of the Ninth Circuit’s
test for determining whether that “claim” supports specific
personal jurisdiction. See J. McKeown dissent from denial at
8943-45; J. O’Scannlain dissent from denial at 8934-35.
The Supreme Court has “consistently held” that a state
court cannot assert personal jurisdiction over a defendant
merely because it is foreseeable that the defendant’s actions
could cause an injury in that state. Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 474 (1985). Rather, “it is the defen-
dant’s actions, not his expectations, that empower a State’s
courts to subject him to judgment.” J. McIntyre Machinery,
131 S. Ct. at 2789. In order to give rise to personal jurisdic-
tion, these actions must be “expressly aimed” at the forum
state. Calder, 465 U.S. at 789.
Our cases have eroded this requirement. For example, in
CE Distribution, LLC v. New Sensor Corp., we held that a
defendant’s actions in New Jersey were expressly aimed at
FIORE v. WALDEN 8993
Arizona because “it is reasonable to infer that [defendant] had
every reason to know that the effect of the [New Jersey trans-
actions] would resonate in Arizona.” 380 F.3d 1107, 1111
(9th Cir. 2004). We went even further in Brayton Purcell LLP
v. Recordon & Recordon, where we held that the defendant
law firm “individually targeted” plaintiff’s law firm in one
forum by publishing plaintiff’s copyrighted online marketing
material in a different forum. 606 F.3d 1124, 1129-30 (9th
Cir. 2010). But, as Judge Reinhardt pointed out in dissent, the
allegedly infringing material was aimed solely at prospective
clients in the defendant’s own district, where its lawyers
“practiced exclusively.” Id. at 1132 (Reinhardt, J., dissenting).
Despite the fact that such behavior “is quite the opposite of
‘directly targeting the forum,’ ” id., we held that it was suffi-
cient “express aiming” to support personal jurisdiction.
This case deals the coup de grace to any semblance of com-
pliance with Supreme Court precedent. See J. O’Scannlain
dissent from denial at 8934-35. Under the majority’s logic, a
court can rely on any allegation that the defendant committed
a wrongful act at a time when the defendant should have
known that plaintiffs had “strong connections” with a state.
Maj. op. at 8980. The complaint need not allege a wrongful
act that is legally cognizable, maj. op. at 8956 n. 17, or even
that defendant actually knew of plaintiffs’ connections to the
forum state at the time the defendant committed the allegedly
wrongful act, maj. op. at 8959. Rather, all that is needed is the
allegation that some intentional act by the defendant has a
foreseeable effect on a plaintiff in another state. In other
words, as Judge McKeown correctly observes in her dissent
from the denial of rehearing en banc, we have adopted the
exact foreseeability framework that the Supreme Court has
consistently rejected. See J. McKeown dissent from denial at
8943-45.
This impermissible expansion of personal jurisdiction has
substantial consequences. For one thing, federal officials
working in a transportation hub who are sued by disgruntled
8994 FIORE v. WALDEN
travelers can now be forced to litigate in any traveler’s home
state. A court has personal jurisdiction over such an official
so long as (1) it can infer that the official had reason to know
the traveler’s residence at some point during the litigation,
and (2) it can discern some “arguable” cause of action in the
traveler’s complaint. Under such a “test,” a TSA official in
Minneapolis who stopped a traveler on a no-fly list can be
forced to litigate a claimed equal protection violation in the
traveler’s home town, whether in Pocatello or Anchorage.
In short, there are no effective limits to the majority’s rea-
soning: all the airport officials who interacted with Fiore and
Gipson in Atlanta have potentially subjected themselves to the
judicial power of Nevada. This essentially reduces the show-
ing of personal jurisdiction to a pleading exercise and, by
doing so, grants state courts in the Ninth Circuit an uncon-
strained power to “bind strangers to the State.” J. McIntyre
Machinery, 131 S. Ct. at 2787. This not only flouts common
sense, but also ignores the Supreme Court’s recent recogni-
tion that personal jurisdiction continues to play a vital role in
defending basic fairness and due process. See id. at 2786-87.
Judges O’Scannlain, McKeown, and I are not the first to
decry this lamentable development in our case law. See, e.g.,
Brayton Purcell, 606 F.3d at 1131-32 (Reinhardt, J., dissent-
ing from the majority’s application of the express aiming
requirement); Yahoo! Inc. v. La Ligue Contre Le Racisme Et
L’Antisemitisme, 433 F.3d 1199, 1224-25 (9th Cir. 2006) (en
banc) (Ferguson, J., dissenting from the same, joined by
O’Scannlain, J., Tashima, J.). But there is even more to
lament today, as the majority has done significant further
damage to the “traditional notions of fair play and substantial
justice” guarded by the long-established rules of personal
jurisdiction. Int’l Shoe, 326 U.S. at 316.