Arab v. Sarkis

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ARAB AMERICAN FESTIVAL, Plaintiff/Appellant,

v.

EMMA SARKIS, et al., Defendants/Appellees.

No. 1 CA-CV 19-0088
FILED 10-24-2019

Appeal from the Superior Court in Maricopa County
No. CV 2016-015297
The Honorable Joseph C. Welty, Judge
The Honorable Kerstin G. LeMaire

AFFIRMED

COUNSEL

Christopher D. Graham, PLLC, Chandler
By Christopher D. Graham
Counsel for Plaintiff/Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Lawrence F. Winthrop and Judge Michael J. Brown joined.

C A M P B E L L, Judge:

¶1 Arab American Festival (“AAF”) appeals from the superior
court’s judgment dismissing its complaint against Saba Mahmood and Safa
Srour (collectively, “defendants”) for lack of personal jurisdiction. “[I]f a
defendant purposefully directs its activities at a particular forum, and the
effects of its activities are reasonably foreseeable, jurisdiction is proper
because the defendant can reasonably anticipate being called to account for
its own actions.” Batton v. Tennessee Farmers Mut. Ins. Co., 153 Ariz. 268, 273,
(1987). In this case, the defendants did not purposefully direct any activities
toward Arizona, and we therefore affirm the dismissal for lack of personal
jurisdiction.

BACKGROUND

¶2 For more than ten years, AAF has operated as a nonprofit
corporation headquartered in Arizona. As part of its fundraising efforts,
AAF annually produces the “Miss Arab USA Pageant” (“pageant”).

¶3 In 2016, the defendants registered as pageant contestants. As
a condition of their participation, the defendants each signed a “Pageant
Contract” (“Contract”), which expressly prohibited them from
“damag[ing] the reputation or the integrity” of the pageant organization.

¶4 At some point after the pageant, Mahmood allegedly
published online statements questioning the legitimacy and non-profit
status of the pageant. Srour, in turn, allegedly failed to remit $1,460 in
donations she raised on behalf of the pageant.

¶5 Seeking to enjoin the defendants from publishing negative
statements and recover damages, AAF filed a complaint against Mahmood
and Srour alleging claims of breach of contract, defamation, and declaratory
relief. In response, Mahmood and Srour separately moved to dismiss AAF’s
complaint for lack of jurisdiction.

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¶6 After oral argument on the motions, the superior court
entered an under-advisement ruling dismissing the complaint, concluding
the court lacked personal jurisdiction over the defendants. AAF timely
appealed.

DISCUSSION

¶7 Asserting Arizona has personal jurisdiction over the
defendants, AAF contends the superior court erroneously dismissed the
complaint. We review de novo a dismissal for lack of personal jurisdiction.
Hoag v. French, 238 Ariz. 118, 122, ¶ 17 (App. 2015).

¶8 When defendants move to dismiss a complaint for lack of
personal jurisdiction, the plaintiff bears the burden of establishing that
jurisdiction is proper. In re Consol. Zicam Prod. Liab. Cases, 212 Ariz. 85, 89,
¶ 7 (App. 2006). To meet this burden, the plaintiff may not “rest on the bare
allegations” of the complaint, but must “come forward with facts
supporting personal jurisdiction.” Id.; see also A. Uberti & C. v. Leonardo, 181
Ariz. 565, 569 (1995).

¶9 Under Arizona Rule of Civil Procedure 4.2(a), Arizona courts
may exercise personal jurisdiction to the maximum extent allowed by the
United States Constitution. While a state may exercise jurisdiction over its
own citizens without constraint, the “Due Process Clause of the Fourteenth
Amendment limits the exercise of personal jurisdiction by state courts over
non-resident defendants.” Planning Group of Scottsdale, L.L.C. v. Lake
Mathews Mineral Props., Ltd., 226 Ariz. 262, 266, ¶ 14 (2011) (citing Pennoyer
v. Neff, 95 U.S. 714, 723–24 (1877)). Indeed, a “state court may exercise
personal jurisdiction over a non-resident defendant only if that defendant
has sufficient contacts with the forum state such that the maintenance of the
suit does not offend traditional notions of fair play and substantial justice.”
Hoag, 238 Ariz. at 122, ¶ 18 (internal quotations omitted).

¶10 Arizona courts may exercise either general or specific
personal jurisdiction over non-resident defendants. Hoag, 238 Ariz. at 122,
¶ 19. If a non-resident defendant’s contacts with the state are substantial,
continuous and pervasive, Arizona may exercise general jurisdiction—
“jurisdiction over a cause of action regardless of the relationship of its
subject matter to the forum.” Planning Group, 226 Ariz. 262, 265, ¶ 13 (2011).
In this case, AAF does not contend that Arizona has general jurisdiction
over the defendants, and nothing in the record suggests that either non-
resident defendant has had substantial or pervasive contact with the State.

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¶11 If a non-resident defendant’s contacts with a state are less
than continuous and pervasive, but nonetheless “sufficient” with respect to
a certain claim, a state may exercise specific jurisdiction with respect to that
claim. Planning Group, 226 Ariz. at 265, ¶ 13. Under this sufficient or
“minimum contacts” test, a “defendant need not ever have been physically
present in the forum state.” Id. at 266, ¶ 14. “Rather, the question is whether
the defendant’s contacts with the forum, physical or otherwise, make it
reasonable in the context of our federal system of government to require the
[defendant] to defend the particular suit which is brought there.” Id.
(internal quotation omitted).

¶12 Applying a “holistic approach,” we consider all the contacts
between non-resident defendants and Arizona to determine whether the
non-resident defendants engaged in purposeful conduct for which they
“could reasonably expect to be haled” into Arizona’s courts. Id. at 268, ¶ 25.
Under this standard, casual or accidental contacts by a defendant with the
forum state “cannot sustain the exercise of specific jurisdiction.” Id. at 266,
¶ 16. “Nor can the requisite contacts be established through the unilateral
activities of the plaintiff; they must instead arise from the defendant’s
‘purposeful’ conduct.” Id.

¶13 Asserting the defendants “voluntarily reached” into the State
by registering as pageant contestants, entering the Contract, and engaging
in pageant-related fundraising, AAF contends Mahmood and Srour are
subject to Arizona jurisdiction. Specifically, AAF maintains that both
women: (1) registered for the pageant on a website that identified AAF as
the pageant organizer and stated that its headquarters are in Arizona; (2)
received four emails regarding the pageant that contained AAF’s Arizona
address; (3) received PayPal receipts (after paying their registration fees)
that contained AAF’s Arizona address; (4) received a contestant handbook
that identified AAF as the pageant organizer and instructed that all
donations be mailed to an Arizona address; and (5) signed a “Release and
Waiver of Liability and Indemnity Agreement” that stated it “is intended
to be as broad and inclusive as permitted by the laws of the State of
Arizona.”

¶14 As support for its contentions, AAF relies on the supreme
court’s most recent explication of personal jurisdiction, Planning Group. In
that case, the defendants “directed a series of telephone calls, e-mails, faxes,
and letters to the Arizona plaintiffs, seeking to persuade the plaintiffs to
invest in [the defendants’] venture.” 226 Ariz. at 168, ¶ 26. After the
superior court dismissed the plaintiffs’ complaint for lack of jurisdiction
and this court affirmed, the supreme court reversed, concluding that the

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defendants “purposeful[ly] direct[ed]” communications to the plaintiffs
provided sufficient contacts “to support the exercise of personal jurisdiction
in Arizona.” Id. at 265, 269–70, ¶¶ 10–11, 31, 36.

¶15 Unlike the overt solicitations at issue in Planning Group, here,
the defendants did not direct their activities toward Arizona. Instead, they
registered for the pageant online, paid the associated fees through an
intermediary, and passively “received” a series of emails and a handbook
for a pageant that would be held in Pennsylvania. Therefore, Planning
Group fails to provide any support for the exercise of jurisdiction in this
instance.

¶16 Moreover, contrary to AAF’s contention, the Contract does
not provide a basis for subjecting the defendants to jurisdiction in Arizona.
While AAF does not dispute that the defendants signed the Contract in
Pennsylvania during “pageant week,” not in Arizona, it asserts the
defendants signed an indemnity agreement that contained an Arizona
choice of law provision. That purported document is not part of the
appellate record, however, and the Contract does not contain such a
provision.

¶17 On this record, there is no basis to find that the defendants
purposefully directed any activity to the State. Therefore, AAF has failed to
meet its burden of establishing a prima facie case for Arizona jurisdiction,
and the superior court did not err by dismissing the complaint.

CONCLUSION

¶18 For the foregoing reasons, we affirm. Because AAF has not
prevailed on appeal, we deny its request for an award of attorney fees.

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

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