Singer v. Mondex

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

ALAN SINGER, Plaintiff/Appellant,

v.

MONDEX CORPORATION, Defendant/Appellee.

No. 1 CA-CV 18-0346
FILED 5-2-2019

Appeal from the Superior Court in Mohave County
No. B8015CV201804018
The Honorable Charles W. Gurtler, Judge

AFFIRMED

COUNSEL

Alan Singer, Fort Mohave
Plaintiff/Appellant

The Mullan Law Firm, PC, Bullhead City
By Anthony Joseph Mullan, Jr.
Counsel for Defendant/Appellee
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge David D. Weinzweig delivered the decision of the Court,
in which Judge Kent E. Cattani and Judge James P. Beene joined.

W E I N Z W E I G, Judge:

¶1 Plaintiff Alan Singer (“Singer”) appeals the superior court’s
order granting Defendant Mondex Corporation’s (“Mondex”) motion to
dismiss for lack of personal jurisdiction. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 This lawsuit concerns a May 2017 contract between two
Canadian corporations to recover assets located in Canada. The contracting
parties were Mondex (incorporated in Ontario, Canada), Mercury Terrain
& Maison, Inc. (located in Quebec, Canada), and Judith Rottmann
(identified as a Quebec resident). Rottmann was Mercury’s President; she
entered the contract in her individual and corporate roles. The contract
directed that Mondex agreed to “help recover [certain assets] situated in the
Province of Quebec, and possibly elsewhere, which were expropriated and
otherwise misappropriated.” It was a contingency agreement; Mondex was
promised a 40 percent commission on the assets it recovered.

¶3 Singer is an Arizona resident and Mercury’s consultant. He
was the first to inform Mercury that its assets “had been looted by the
Quebec government and various business entities.” Singer was not a party
to the May 2017 contract, but he did sign the contract as a witness to the
transaction, and the contract authorized him to act for Mercury and
Rottmann “in the case of her incapacity.” Mondex and Singer had a poor
relationship moving forward, and Mondex eventually asked Mercury to
“remove [Singer] from the equation.”

¶4 Singer alleges Mondex “overlooked millions of dollars”
which Mercury could have recovered, and that Mercury cancelled the
contract “for non-performance” in November 2017. Although Mondex
apparently found no assets, Singer alleges Mondex still demanded that
Mercury pay a 40 percent commission and thousands of dollars in
attorneys’ fees. Singer filed this lawsuit against Mondex in March 2018. He

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alleged “Mercury and its owner, Judith Rottmann, assigned their right to
economic damages against Mondex to [him],” but included no proof of the
assignment. He asserted various tort and contract theories against Mondex,
including fraudulent inducement, “breach of promise,” breach of fiduciary
duty, racketeering, interference with contract and prospective economic
advantage, negligence, libel and unfair business practices.

¶5 Mondex moved to dismiss under Arizona Rule of Civil
Procedure 12(b)(2) for lack of personal jurisdiction. A supporting affidavit
was attached from James Palmer, founder of Mondex, who averred that
Mondex was a Canadian corporation with no current or historical Arizona
presence (no offices, business, advertising or employees). He further swore
that Mondex signed the contract in Canada and had not been served in
Arizona.

¶6 Singer opposed the motion. He asserted that Mondex
implicitly consented to personal jurisdiction in Arizona in the contract
because the contract provided that the “law of Ontario” would apply, and
Ontario law does not include a minimum contacts analysis. Singer thus
argued that the superior court had specific personal jurisdiction over
Mondex. Singer attached his affidavit, his personal bank statement,
newspaper articles and circulation statistics, and a list of emails from
Mondex to Singer and Rottmann. Neither party requested an evidentiary
hearing or oral argument.

¶7 The superior court granted the motion to dismiss with
prejudice. Singer moved for reconsideration on various grounds, including
that dismissal should have been without prejudice. The court granted
Singer’s motion only “to the extent that the overall dismissal shall be
without prejudice” and Singer could file his claims “in a court of
appropriate jurisdiction.” Singer timely appealed. We have jurisdiction
pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(3). 1

DISCUSSION

¶8 Arizona law permits “long-arm” exercise of personal
jurisdiction to the maximum permissible extent under the United States
Constitution. Ariz. R. Civ. P. 4.2(a); Planning Grp. of Scottsdale, L.L.C. v. Lake
Mathews Mineral Props., Ltd., 226 Ariz. 262, 265, ¶ 12 (2011). Although

1 We do not address Singer’s argument about the dismissal being with
prejudice because the court later amended its ruling to “dismiss[] the matter
without prejudice.”

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personal jurisdiction may be general or specific, Planning Grp., 226 Ariz. at
265, ¶ 13, Singer only argues that Arizona courts have specific personal
jurisdiction here. The Constitution permits the exercise of specific personal
jurisdiction over a nonresident defendant that has sufficient “minimum
contacts” with the forum so that “maintenance of the suit does not offend
traditional notions of fair play and substantial justice.” Walden v. Fiore, 571
U.S. 277, 283 (2014) (quotation omitted).

¶9 Singer asserts—as he did below—that Mondex cannot contest
Arizona jurisdiction because the 2017 contract provides that Canadian law
applies, and Canadian law does not require a minimum contacts analysis
in determining jurisdiction. We disagree that this contractual provision
implicitly creates jurisdiction in Arizona. Moreover, Singer seems to
conflate two different types of clauses: forum-selection and choice-of-law.
See Morgan Bank v. Wilson, 164 Ariz. 535, 537 (App. 1990) (“[P]arties may
include contractual provisions for resolving controversies in a particular
jurisdiction.”). Nor would the fundamental jurisdictional inquiry turn on a
choice-of-law clause. See Hanson v. Denckla, 357 U.S. 235, 254 (1958) (stating
the “issue is personal jurisdiction, not choice of law”). He also argues that
jurisdiction is appropriate if Mondex was served with process in Canada
because service outside of Arizona “has the same effect as if personal
service were accomplished within Arizona.” Singer misunderstands
Arizona Rule of Civil Procedure 4.2, which does not negate the threshold
requirement of jurisdiction. See Pegler, 6 Ariz. App. at 340-42.

¶10 Arizona may exercise specific personal jurisdiction over a
nonresident defendant when the totality of defendant’s contacts with this
state demonstrate (1) purposeful conduct by the defendant targeting the
forum, rather than accidental or casual contacts or those brought about by
the plaintiff’s unilateral acts, (2) a nexus between those contacts and the
claim asserted and (3) that exercise of jurisdiction would be reasonable. See
Planning Grp., 226 Ariz. at 266-70, ¶¶ 16, 25, 29, 37; Williams v. Lakeview Co., 199 Ariz. 1, 4, ¶ 11 (2000).

¶11 The “minimum contacts” analysis “focuses on the
relationship among the defendant, the forum, and the litigation.” Walden,
571 U.S. at 284-85 (quotation omitted). The “relationship must arise out of
contacts that the defendant himself creates with the forum State,” and “the
defendant’s suit-related conduct must create a substantial connection with
the forum State.” Id. at 284 (emphasis in original) (quotation omitted).

¶12 To survive a motion to dismiss for lack of personal
jurisdiction, Singer was required to offer “facts establishing a prima facie

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showing of jurisdiction.” Ariz. Tile, L.L.C. v. Berger, 223 Ariz. 491, 493, ¶ 8
(App. 2010); see also Pegler v. Sullivan, 6 Ariz. App. 338, 339 (1967) (“The
facts, and not the allegations of the complaint, must be the touchstone.”).
Only then would the burden “shift[] to the defendant to rebut the showing.”
Ariz. Tile, L.L.C., 223 Ariz. at 493, ¶ 8. We review de novo the superior court’s
ruling on personal jurisdiction. Id.

¶13 Singer did not provide the superior court with enough facts
to support Arizona’s exercise of specific jurisdiction over a Canadian
corporation that contracted with another Canadian corporation and its
owner to locate assets in Canada. He maintains on appeal that specific
jurisdiction was proper because (1) Mondex directed telephone calls and
emails toward Arizona during the negotiation and performance of the
contract; (2) Mondex aimed false advertisements and tortious conduct at
Arizona, injuring him; (3) Mondex entered into the contract in Arizona; (4)
Singer and Mercury performed research services in Arizona under the
contract; (5) Singer and Rottmann signed the contract in Arizona; (6)
Mondex harmed and defamed an Arizona resident in Arizona; (7) and
Mondex’s founder visited Scottsdale to speak at the 2018 Genocide
Awareness Week, which Singer characterized as a “marketing ploy.”

¶14 We are not persuaded. First, Singer’s only evidence of the
telephone calls and emails are his affidavit and a list of emails sent by
Mondex’s founder to him and Mercury’s owner in Arizona. But the actual
communications are not included, only the information in the email header
(sender, recipient, date, time and subject matter line). This index was
inadequate for the superior court to examine the content of the
communications and determine whether (1) they represented purposeful
targeting, rather than responsive or casual contacts, or (2) established a
nexus between the contacts and the asserted claims. The subject matter
lines are not informative, using descriptions such as “RE:” and “telephone
conference re: case.” And the emails often indicate Mondex responding to
external inquiries rather than vice versa, Batton v. Tenn. Farmers Mut. Ins.
Co., 153 Ariz. 268, 274 (1987) (“[T]he requisite minimum contacts are not
established when the plaintiff’s action requires the defendant to send
communications into the forum.”) (quotation omitted), or communications
with people who happen to be in Arizona about a contract between
Canadian corporations that never mentions Arizona, see Smith & Wesson
Corp. v. The Wuster, 243 Ariz. 355, 359, ¶ 18 (App. 2017) (finding no specific
jurisdiction where agreement did not show defendant “actively pursued a
contractual relationship in Arizona or that it had any ongoing obligations
in Arizona”).

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¶15 Second, Singer provides no evidence that Mondex injured
him in Arizona, advertised in Arizona, or targeted Arizona or its residents
with false advertisements or tortious conduct. See In re Marriage of Peck, 242
Ariz. 345, 348, ¶ 7 (App. 2017) (“A petitioner cannot establish a prima facie
showing with bare allegations and must come forward with facts,
established by affidavit or otherwise, supporting jurisdiction.”). Likewise,
he never explains how Mondex entered into the contract in Arizona and
offers no evidence in support.

¶16 Third, specific jurisdiction is not warranted based on facts
arising from Singer’s or Mercury’s conduct rather than from Mondex’s
conduct, including that Singer might have performed research in Arizona
and Rottmann might have signed the contract in Arizona. Walden, 571 U.S.
at 284-85 (minimum contact test focuses on the defendant and contacts he
created with the forum). More generally, the Arizona contacts of Singer
and Mercury are not enough to justify the exercise of specific jurisdiction
over Mondex. Smith & Wesson Corp., 243 Ariz. at 359, ¶ 19 (plaintiff’s
contacts with the forum “is not relevant to whether personal jurisdiction
can be exercised over a non-resident defendant”).

¶17 And last, the record does not indicate the remarks of
Mondex’s founder at a 2018 Scottsdale conference were connected to this
lawsuit or the claims asserted herein. See In re Consol. Zicam Prod. Liab.
Cases, 212 Ariz. 85, 90, ¶ 11 (App. 2006) (“[T]he plaintiffs’ cause of action
must arise out of or relate to the defendants’ contacts with Arizona.”). At
most, the record includes the sort of “random, fortuitous, or attenuated
contacts” deemed insufficient to warrant specific personal jurisdiction.
Walden, 571 U.S. at 286 (2014); see also Bristol-Myers Squibb Co. v. Cal. Super.
Ct., 137 S. Ct. 1773, 1781 (2017) (specific jurisdiction requires a connection
between the controversy and forum, and “[w]hen there is no such
connection, specific jurisdiction is lacking regardless of the extent of a
defendant’s unconnected activities in the State”). We therefore conclude
the superior court correctly granted Mondex’s motion to dismiss for lack of
personal jurisdiction.

¶18 Finally, Mondex requests attorneys’ fees incurred on appeal
under A.R.S. § 12-341.01(A) and A.R.S. § 12-349. We deny its request for
fees under § 12-349 because Singer did not bring this action without
substantial justification or to harass Mondex. We also deny, in our
discretion, an award of attorneys’ fees under § 12-341.01(A). Mondex is
awarded its taxable costs upon compliance with ARCAP 21.

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CONCLUSION

¶19 We affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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