JILL A. OTAKE, District Judge.
Plaintiffs Michael Croyle ("Michael"), his legal guardian and mother Sandra Croyle ("Sandra"), and his father David Croyle ("David") bring claims against Defendants Theatine Fathers, Inc. and The Theatine Fathers Province of Our Lady of Purity (collectively, the "Theatines"), as well as Defendant Archdiocese for the Military Services, USA ("AMS") based on a Theatine priest's sexual assaults on Michael at Tripler Army Medical Center in the 1990s. The Theatines move to dismiss Plaintiffs' claims as untimely, ECF No. 30, and AMS moves to dismiss because the Court lacks jurisdiction over it as a nonresident defendant, ECF No. 29. For the reasons stated below, the Theatines' motion is DENIED and AMS's motion is GRANTED.
As alleged in the amended complaint, in the late 1990s, when Michael was about eight years old, he lived in Hawai`i with his parents while his father was stationed at Tripler Army Medical Center ("Tripler"). ECF No. 7 ("FAC") ¶¶ 13, 16. Michael and his family attended church services at the Catholic chapel at Tripler, where Father Mark Matson ("Fr. Matson") led mass. Id. ¶ 14.
Fr. Matson was a member of the Theatine Fathers Province of Our Lady of Purity, a Catholic religious order based in Colorado and operated by The Theatine Fathers, Inc. Id. ¶¶ 4-5. The Theatines ordained Fr. Matson in 1976 and served as his employer, giving Fr. Matson his clerical assignments. Id. ¶ 5. In 1993, the Theatines allowed Fr. Matson to apply to be a contract priest at Tripler through the Department of Defense. ECF No. 29-2 ("Foster Decl.") ¶¶ 17-18.
Prior to his service at Tripler, Fr. Matson had a history of sexual abuse such that Plaintiffs allege the Theatines and AMS knew or should have known of the risk of harm to children in close proximity to Fr. Matson. See id. ¶¶ 26-27. Plaintiffs allege Fr. Matson sexually abused a minor seminary student while he was the rector at a seminary in Colorado in the 1970s, sexually abused other minor boys in Colorado in the 1980s, and was acquitted on charges for sexually assaulting a minor in California in the late 1980s. See id. ¶ 26.
Fr. Matson then abused Michael in Hawai`i in the 1990s. Id. ¶¶ 15-19, 22. Michael attended religious education classes after mass, but on at least six occasions, when Fr. Matson appeared to escort Michael out of the chapel to attend the classes, he instead diverted Michael to a room to sexually assault him. Id. ¶¶ 15-16. Fr. Matson abused Michael both in the chapel and other rooms at Tripler, by performing oral sex on Michael while masturbating, sodomizing Michael, and forcing Michael to touch his penis and perform oral sex on him. Id. ¶ 16-19, 22. Fr. Matson threatened that Michael would go to hell if he told anyone about these assaults and also told Michael that the assaults were normal and that Michael's parents knew about and approved of the assaults. Id. ¶¶ 20, 23.
Michael has suffered from severe mental health injuries and conditions since the sexual abuse and, as a result of the abuse, was adjudged to be an incapacitated and disabled person. Id. ¶¶ 24-25, 32. His mother, Sandra, was appointed as his guardian and conservator and has incurred substantial costs relating to Michael's psychiatric care and treatment. Id. ¶¶ 25, 32.
In June 1998, Fr. Matson was terminated from his position at Tripler for theft. Id. ¶ 28. Shortly after, in August 1998, police arrested Fr. Matson for sexually assaulting a minor boy in a park in Hawai`i and, in 2000, he was convicted of third-degree sexual assault and first-degree attempted assault. Id. ¶ 29-31. In August 1998, AMS withdrew its endorsement of Fr. Matson to serve as a Catholic chaplain. Id. ¶ 30. The FAC is silent as to when Michael remembered the abuse or informed Sandra of the abuse.
Plaintiffs filed a Complaint against Defendants on August 6, 2019. ECF No. 1. After the Court issued an order to show cause regarding insufficient allegations of subject matter jurisdiction, ECF No. 6, Plaintiffs filed the FAC on August 23, 2019, ECF No. 9. In the FAC, Michael brings a gross negligence claim against the Theatines and AMS (Counts I & II). FAC ¶¶ 34-62. All three Plaintiffs bring a claim for intentional infliction of emotional distress ("IIED") against the Theatines and AMS (Count III). Id. ¶¶ 63-66. Sandra and David also bring a negligent infliction of emotional distress ("NIED") claim against both the Theatines and AMS (Count IV). Id. ¶¶ 67-73.
AMS moved to dismiss the FAC, arguing the Court lacks personal jurisdiction over AMS. ECF No. 29. The Theatines moved to dismiss all claims as untimely. ECF No. 30. Plaintiffs oppose these motions. ECF Nos. 39-41.
The Court concludes that (1) Plaintiffs' claims cannot be dismissed as untimely at this juncture, but that (2) it lacks personal jurisdiction over AMS.
Rule 12(b)(6) allows an attack on the pleadings for failure to state a claim on which relief can be granted. "[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted). However, a court is "not bound to accept as true a legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Nor does a complaint suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement.'" Id. (alteration in original) (quoting Twombly, 550 U.S. at 557) (citation omitted). A complaint must "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. This means that the complaint must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citation omitted).
Relevant here, a claim may be dismissed at this stage on the basis that it is untimely. However, "[a] claim may be dismissed under Rule 12(b)(6) on the ground that it is barred by the applicable statute of limitations only when `the running of the statute is apparent on the face of the complaint.'" Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (citation omitted). In fact, "[a] complaint cannot be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that would establish the timeliness of the claim." Id. (quoting Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 (9th Cir. 1995)).
The Court denies the Theatines' motion because it does not appear beyond a doubt that Plaintiffs can prove no set of facts that would establish the timeliness of their claims. While the parties agree that Hawai`i Revised Statutes ("HRS") § 657-1.8 ("Section 657-1.8") is applicable here, they disagree about how it applies and whether Plaintiffs' claims are timely under it. Because the parties offer different interpretations of the statute, the Court notes that, under Hawai`i law, statutory interpretation requires the following steps:
Hawaii State Teachers Ass'n v. Abercrombie, 126 Haw. 318, 320, 271 P.3d 613, 615 (2012), as amended (Jan. 27, 2012) (citation omitted). With that in mind, the Court turns to examine Section 657-1.8.
Effective April 24, 2012, Section 657-1.8 extended the statute of limitations for damages actions premised on childhood sexual abuse.
HRS § 657-1.8 (emphasis added). The Theatines argue that Plaintiffs' claims are untimely under subsection (a), and thus that Plaintiffs cannot rely on the longer window under subsection (b).
More specifically, the Theatines point to allegations from a different case Michael brought in a Missouri federal court in 2016 against the United States regarding the same sexual abuse. See ECF No. 30 at 4 (citing ECF No. 30-1 ("Missouri Compl.") ¶¶ 23-26). In the Missouri Complaint, Michael alleged he failed to have a present memory of the abuse until 2012 when he first disclosed Fr. Matson's abuse to Sandra, and that neither discovered the connection between his injuries and the sexual abuse until 2012. Missouri Compl. ¶¶ 23-25. According to the Theatines, these allegations demonstrate that any claims against them accrued in 2012, and are now untimely under Section 657-1.8(a) because they expired at the latest eight years after Michael's eighteenth birthday (in 2016). The Theatines argue that because Plaintiffs' claims are untimely under subsection (a), they are not eligible to benefit from the longer window set forth under subsection (b). These arguments are flawed for a few reasons.
First, the Theatines' arguments rely on the Court either taking judicial notice of the allegations in the Missouri Complaint or, alternatively, treating those allegations as judicial admissions in this case. The Theatines fail to show that either doctrine applies here.
Taking the latter first, the Ninth Circuit has rejected the notion that allegations in one case may be deemed binding judicial admissions in a separate case on the same subject matter. See Casa del Caffe Vergnano S.P.A. v. ItalFlavors, LLC, 816 F.3d 1208, 1213 (9th Cir. 2016) (rejecting plaintiff's argument that the defendant was bound by its allegations in a related state court action regarding the validity of a contract because the doctrine of binding judicial admissions "is inapplicable because the alleged admission was made in a separate case from the present action" (citations omitted)); see also Nextdoor.com, Inc. v. Abhyanker, No. C-12-5667 EMC, 2013 WL 3802526, at *8 (N.D. Cal. July 19, 2013) ("While an admission in a prior lawsuit may be admissible evidence in a later proceeding, it is not a binding admission, and thus does not control a motion to dismiss." (citation omitted)). The Theatines fail to cite binding authority to the contrary that would permit the Court to treat allegations from the Missouri Complaint as binding admissions here on a 12(b)(6) motion.
The Theatines' argument regarding judicial notice also falls short. A court may take judicial notice of "a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b)(2).
In Khoja, for example, the Ninth Circuit concluded the district court abused its discretion by taking judicial notice of certain facts within an investor call transcript. See 899 F.3d at 999-1000. Although there could be no dispute the call occurred and that defendants made certain statements on the call (facts that could be judicially noticed), there could be a reasonable dispute about what that transcript revealed about plaintiffs' knowledge at the time of the call. See id. ("It is improper to judicially notice a transcript when the substance of the transcript is subject to varying interpretations, and there is a reasonable dispute as to what the transcript establishes." (citation and alteration omitted)).
So too here where the Theatines ask the Court to take judicial notice of certain allegations for purposes of establishing an accrual date for Plaintiffs' claims. As the Theatines recognize, accrual is based on when a plaintiff actually discovers, or through the use of reasonable diligence should have discovered, the negligent act, damage, and causal connection between the two. See ECF No. 30 at 6-7; see also Ass'n of Apartment Owners of Newtown Meadows ex rel. Its Bd. of Dirs. v. Venture 15, Inc., 115 Haw. 232, 277, 167 P.3d 225, 270 (2007), as corrected on denial of reconsideration (Sept. 20, 2007). Here, there is a reasonable dispute about whether the Missouri Complaint (alleging when Michael obtained a "present memory," first told Sandra about abuse by Fr. Matson specifically, and discovered a connection to his injuries) conclusively establishes 2012 as an accrual date for the claims alleged here. For example, the allegations in the Missouri Complaint leave open to interpretation what "present memory" means, whether Michael disclosed prior abuse to Sandra more generally, and when the Plaintiffs discovered the Theatines' tortious acts (as compared to their priest's abuse). There is also no explicit allegation that Michael and Sandra could not have discovered the abuse before 2012 through the use of reasonable diligence.
Yet, even if the Court were to accept as true that, in 2012, Plaintiffs first discovered Fr. Matson's abuse, the Theatines still have not shown Plaintiffs' claims are subject to dismissal as untimely under Rule 12(b)(6).
Even if the Court accepted as true that Plaintiffs both discovered the abuse and resulting injury in 2012 and could not reasonably have discovered their claims before then, the Theatines still have not shown the claims are barred at this stage under Section 657-1.8(a) because they have not shown beyond dispute that subsection (a) even applies. The plain language of subsection (a) applies to claims "against the person who committed the act of sexual abuse," and none of Plaintiffs claims here are against that person. And, as discussed above, the allegations leave open the potential for Plaintiffs to prove their claims accrued and expired before the statute of limitations was amended in April 2012 under the "should have known" standard, and thus are now revived under subsection (b).
Even putting that aside, the allegations in the Missouri Complaint do not indicate when in 2012 Plaintiffs' claims allegedly accrued. For example, if Plaintiffs' claims accrued in January 2012, then Section 657-1.8(a) was not yet in effect. The Theatines cite no binding authority indicating that, if Plaintiffs' claims accrued in January 2012, then Section 657-1.8(a) would apply to their claims. Cf. Yamaguchi v. Queen's Med. Ctr., 65 Haw. 84, 89-90, 648 P.2d 689, 693-94 (1982) (holding that an amendment to a statute of limitation applied prospectively only, relying "upon the well-established rule of construction forbidding the retrospective operation of statutes in the absence of clearly expressed contrary legislative intent," and that the limitations period in effect at the time of accrual applies and begins to run at that time (citations omitted)). The state legislature did not indicate that Section 657-1.8(a) applied retroactively when it first enacted it. See 2012 Haw. Sess. Laws Act 68 ("SECTION 3. This Act shall take effect upon its approval.").
The Theatines also seem to argue that Plaintiffs' claims could still be time barred because they are ineligible under subsection (b) if their claims under the previous statute of limitations had not expired when subsection (b) went into effect on April 24, 2012. See ECF No. 30 at 14. But that is contrary to the plain language of the statute that conditions subsection (b) only on the victim being barred "from filing a claim against the victim's abuser due to the expiration of the applicable civil statute of limitations that was in effect prior to April 24, 2012." If barred under the prior limitations period at the time this action was filed in 2019, then, Plaintiffs can rely on subsection (b).
The Court also rejects the Theatines' request to dismiss Sandra and David's claims under the theory that only Michael can benefit from subsection (b).
The Court is not persuaded that a difference in wording across subsections (a) and (b) demonstrates that the parents of a minor victim may benefit from subsection (a), but not subsection (b). See ECF No. 30 at 13. The Theatines misquote subsection (a) in contrasting it to subsection (b). See id. Still, if subsection (a) covers a parent's claims for IIED and NIED, the Theatines do not explain why the state legislature would provide a significant limitations period for a parent's claims under subsection (a), but not allow those claims to be revived under subsection (b)—particularly given that a minor's reluctance to come forward impacts his or her parents' ability to bring derivative claims for the harm the perpetrator's abuse caused them. Indeed, other provisions of Section 657-1.8 indicate that the claims covered by the two sections are coextensive. See HRS § 657-1.8(d) (requiring certificate of merit to be filed in action brought under either subsection (a) or (b) stating the facts and opinions relied on to conclude there is a reasonable basis to believe "that the plaintiff was subject to one or more acts that would result in an injury or condition specified in [subsection] (a)" (emphasis added)).
The Theatines point to a portion of subsection (b) that permits only a "victim of child sexual abuse" to bring a claim against the perpetrator if that "victim" would otherwise be barred from filing a claim against the "victim's abuser." ECF No. 46 at 11. But that portion is inapplicable here given Plaintiffs sued the Theatines and AMS—not the abuser, Fr. Matson. In the portion of subsection (b) that does apply here for claims against entities, there are no similar limitations. See HRS § 657-1.8(b).
A court in this District has contrasted these portions of subsection (b) to conclude that the statute provides for more expansive liability against entities, i.e., that a claim against an entity may proceed even if it could not have proceeded against the abuser himself. See Wagner v. Church, 208 F.Supp.3d 1138, 1142-43 (D. Haw. 2016). In Wagner, the plaintiff sued a church alleging a pastor sexually abused him while on a service trip in Texas. See id. The church moved to dismiss based on language in subsection (b) indicating it applied only if the sexual abuse occurred in Hawai`i. See id. The Wagner court denied the motion, concluding that, although claims against the abuser under subsection (b) are limited to acts that occurred in Hawai`i, "[t]he plain language of the statute . . . does not contain a geographical qualifier on claims against the employing or supervisory entities." Id. at 1142-43. So too here, where the plain language does not contain a qualifier that claims against employing or supervisory entities must be brought by the minor victim who was sexually abused.
The Wagner court explained that this plain reading permitting broader claims against entities also "comports with the purpose of the statute and the intent of the state legislature," to hold entities responsible for placing a child in a position where he or she may be abused. Id. at 1143. ("The lack of a geographical limitation on claims against entities represents a public policy decision to place a broad burden on organizations to ensure that they vet individuals who come into contact with children, and to ensure that children are adequately supervised and protected from acts of sexual abuse." (citation omitted)). Particularly relevant here, Wagner noted that Hawai`i has recognized that organizations that place adults in positions of trust and in close proximity to children bear an expansive legal burden to protect children under their custody and care—relying on a case where the Hawai`i Supreme Court recognized that this burden is for the benefit of the child and his parents because, if breached, both the child and his parents are harmed. See id. at 1143 (citing Doe Parents No. 1 v. State, 100 Haw. 34, 70, 58 P.3d 545, 579-93 (2002), as amended (Dec. 2 and 5, 2002)).
In light of the plain language of subsection (b) reflecting a decision to provide for more expansive liability against entities and the recognition that this policy serves to ensure that entities protect children for their own benefit and that of their parents, the Court declines to conclude at this juncture that the Theatines have demonstrated that Michael and Sandra's claims are untimely as a matter of law.
For all of these reasons, the Theatines' motion is
AMS moves separately to dismiss the FAC under Rule 12(b)(2) on the basis that the Court lacks jurisdiction over it as a nonresident defendant.
A plaintiff bears the burden of establishing personal jurisdiction over a nonresident defendant. See Love v. Associated Newspapers, Ltd., 611 F.3d 601, 608 (9th Cir. 2010); Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). The plaintiff must establish personal jurisdiction over the defendant with respect to each claim. See Action Embroidery Corp. v. Atl. Embroidery, Inc., 368 F.3d 1174, 1180 (9th Cir. 2004). Where, as here, a district court acts on a motion to dismiss without holding an evidentiary hearing, a plaintiff need only make a prima facie showing of jurisdictional facts to withstand the motion to dismiss. See Love, 611 F.3d at 608; Schwarzenegger, 374 F.3d at 800. Although a plaintiff may not simply rest on the bare allegations of the complaint, uncontroverted allegations in the complaint must be taken as true, and conflicts between parties over statements contained in affidavits or declarations—such as those between the declarations each side submitted here—must be resolved in the plaintiff's favor. See Love, 611 F.3d at 608; Schwarzenegger, 374 F.3d at 800.
A district court considers two factors before exercising personal jurisdiction over a nonresident defendant in a diversity of citizenship case: (1) whether an applicable state rule or statute potentially confers jurisdiction over the defendant; and (2) whether assertion of such jurisdiction accords with constitutional principles of due process. See Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1392 (9th Cir. 1984). "[T]he jurisdictional inquiries under state law and federal due process merge into one analysis" where, as here, the state's long-arm statute is "coextensive with federal due process requirements."
The Due Process Clause protects a person's "liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful `contacts, ties, or relations.'" Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72 (1985) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 319 (1945)) (footnote omitted). The Due Process Clause requires that defendants have "certain minimum contacts with [Hawai`i] such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" Int'l Shoe, 326 U.S. at 316 (citation omitted); Data Disc, Inc. v. Systems Tech. Assocs., Inc., 557 F.2d 1280, 1287 (9th Cir. 1977).
In applying Due Process Clause requirements, courts have created two jurisdictional concepts: general and specific jurisdiction. Plaintiffs argue only that the Court has specific jurisdiction over AMS. Specific jurisdiction over a defendant exists when the cause of action arises out of that defendant's contact or activities in the forum state. See Roth v. Garcia Marquez, 942 F.2d 617, 620 (9th Cir. 1991).
The Ninth Circuit applies the following three-part test to determine whether specific jurisdiction exists:
Schwarzenegger, 374 F.3d at 802 (citation omitted). The plaintiff bears the burden of satisfying the first two prongs of the test. See id. If the plaintiff fails to satisfy either of these prongs, personal jurisdiction is lacking. If the plaintiff succeeds in satisfying the first two prongs, the burden then shifts to the defendant to present a compelling case that the exercise of jurisdiction would not be reasonable. See id.
With regard to the first prong of the specific jurisdiction test, the Ninth Circuit generally looks to a party's "purposeful direction" for actions sounding in tort, and "purposeful availment" for actions sounding in contract. See id. at 802-03. Plaintiffs bring only tort claims against AMS, so the "purposeful direction" test applies here. In evaluating purposeful direction, the Ninth Circuit uses a three-part "effects" test derived from Calder v. Jones, 465 U.S. 783 (1984).
More recently, the Supreme Court clarified that in assessing personal jurisdiction, a court must "look[ ] to the defendant's contacts with the forum State itself, not the defendant's contacts with persons who reside there." Walden v. Fiore, 571 U.S. 277, 285 (2014) (citations omitted). Thus, a "mere injury to a forum resident is not a sufficient connection to the forum." Id. at 290. Rather, "an injury is jurisdictionally relevant only insofar as it shows that the defendant has formed a contact with the forum State." Id. "For a State to exercise jurisdiction consistent with due process, the defendant's suit-related conduct must create a substantial connection with the forum State" and that "relationship must arise out of contacts that the `defendant himself' creates with the forum State" rather than "persons who reside there." Id. at 284-85 (citation omitted). Following Walden, the Ninth Circuit has confirmed that merely alleging that a defendant engaged in wrongful conduct targeting a plaintiff the defendant knows to be a resident of the forum state, such that harm in the forum state is foreseeable, is insufficient on its own to support the exercise of jurisdiction. See Axiom Foods, Inc. v. Acerchem Int'l, Inc., 874 F.3d 1064, 1069-70 (9th Cir. 2017).
The Court concludes that, under the foregoing standards, Plaintiffs have not met their burden of demonstrating purposeful direction and thus showing that the Court can exercise jurisdiction over AMS. Plaintiffs base jurisdiction here solely on AMS's endorsement of Fr. Matson, which is sufficient to demonstrate that AMS committed an intentional act. See Picot v. Weston, 780 F.3d 1206, 1214 (9th Cir. 2015) (noting first prong of effects test requires only that defendant acted with intent to perform an actual, physical act in the real world). Plaintiffs fail to meet their burden under the second prong of the effects test, however, because they have failed to demonstrate that AMS's suit-related conduct, i.e., this endorsement, creates a substantial connection to Hawai`i.
Even if Plaintiffs have demonstrated: that AMS's endorsement amounted to a certification that Fr. Matson could perform sacraments and met the moral and spiritual criteria expected of priests, that AMS's endorsement was a necessary precondition to his placement in Hawai`i, and that AMS knew its endorsement was ultimately for a placement in Hawai`i, this is insufficient to demonstrate purposeful direction. See Doyle Decl. ¶¶ 11-12, 18. AMS is a Maryland corporation that operates out of Washington, D.C. Foster Decl. ¶¶ 4-5. AMS's allegedly tortious conduct consists of sending (from D.C.) an endorsement form and letter to the Army (in D.C.) that enabled the Theatines (a Colorado entity) to enter a contract with the Army—and then eventually withdrawing its endorsement by sending another letter to the Army (in Virginia). Foster Decl. ¶¶ 4-9, 16-20; ECF No. 29-3; ECF No. 29-4; ECF No. 29-5; ECF No. 41-2 at 4; FAC ¶ 4. While the contract between the Army and the Theatines involved the Army's military contracting center in Hawai`i and entailed performance by the Theatines in Hawai`i (through Fr. Matson's chaplain services), all of AMS's suit-related conduct occurred without AMS entering Hawai`i, contacting any person in Hawai`i, or otherwise reaching out to Hawai`i. See id.; see also Picot, 780 F.3d at 1215 (concluding no jurisdiction over defendant in California where defendant's tortious interference consisted of "making statements to . . . an Ohio resident . . . that caused . . . a Delaware corporation with offices in Ohio . . . to cease making payments into two trusts (in Wyoming and Australia)" all "without entering California, contacting any person in California, or otherwise reaching out to California" despite plaintiff being a resident of California and defendant having twice traveled to California in connection with the parties' own business relationship).
There can be no dispute these forms made clear that the purpose of the endorsement was to enable Fr. Matson to serve in Hawai`i. See ECF No. 29-3; ECF No. 29-4 ("THIS ENDORSEMENT IS FOR SERVICE AT TRIPLER ARMY MEDICAL CENTER HAWAII"). But while AMS's endorsement (and later withdrawal) was limited to Tripler in Hawai`i, Plaintiffs offer no evidence or allegations that AMS took that forum into account when considering and making the endorsement or that AMS had any control over the forum for which the endorsement was requested. See Freestream Aircraft (Bermuda) Ltd. v. Aero Law Grp., 905 F.3d 597, 606 (9th Cir. 2018) (concluding jurisdiction existed over a defendant who voluntarily entered the forum state and committed a tort there; distinguishing Morrill v. Scott Fin. Corp., 873 F.3d 1136 (9th Cir. 2017) where jurisdiction was lacking because the defendants were not in the forum state of Arizona of their own volition—but instead because they filed suit against plaintiffs in Nevada and then had to serve process, seek subpoenas, and engage in other litigation conduct in Arizona where plaintiffs resided). Indeed, even if AMS ultimately provided the endorsement, Fr. Matson remained subject to his superiors within the Theatines.
Plaintiffs emphasize that Fr. Matson could not have served in Hawai`i without AMS's endorsement, that AMS could foresee that endorsing a priest with a history of sexual abuse could cause harm in Hawai`i, and that AMS had the power to withhold that endorsement to avoid that risk of harm. ECF No. 41 at 9-11; Doyle Decl. ¶¶ 11-12, 18. But the Court must focus on AMS's contacts with Hawai`i—not its contacts with persons like Plaintiffs or Fr. Matson who may have resided in Hawai`i. See Axiom Foods, 874 F.3d at 1070 (affirming that California lacked jurisdiction despite defendant distributing newsletter that infringed California plaintiff's copyrights, including to plaintiff's potential customers, partners, and suppliers—a handful of whom were physically located in California and 55 of whom had companies in California, including 14 that had locations in California—because this was too attenuated and isolated to support jurisdiction).
Further, as discussed above, foreseeability that Fr. Matson would enter the forum and cause injury in the forum is not a sufficient benchmark for assessing specific jurisdiction. See id.; Williams, 851 F.3d at 1023 n.3 (distinguishing between a defendant who knows products will be sold and used in forum state and benefits from those sales, and a defendant who actively directs advertising and sales efforts of in-state agent such that specific jurisdiction exists); see also Multistar Indus. v. Ocala, NO. 2:19-CV-0182-TOR, 2019 WL 4017245, at *7 (E.D. Wash. Aug. 26, 2019) ("Even if [defendants made false statements about the status of a vehicle warranty and] knew the vehicle belonged to a Washington company and was destined for Washington, this is not sufficient to establish personal jurisdiction over [defendants] in Washington."). To the extent Plaintiffs allege AMS's tortious acts include a failure to take certain action, e.g., failing to investigate Fr. Matson from outside Hawai`i, see, e.g., FAC ¶¶ 52-54, 56, 59, these allegations fail to demonstrate the type of significant connection to the forum state necessary to establish jurisdiction.
Nor do the cases Plaintiffs cite otherwise persuade the Court that they have carried their burden. Those cases both predate Walden and involve scenarios where, unlike here, defendants deliberately initiated contact with the forum state. See Harris Rutsky & Co. Ins. Servs. v. Bell & Clements Ltd., 328 F.3d 1122, 1131 (9th Cir. 2003) (affirming jurisdiction over defendant in California where defendant "purposefully sought out a business relationship with a California corporation, had ongoing contacts with the state over a five-year period, and drafted an agreement which called for performance, and was consummated in, California"); D. Brutke's Victory Hills, LLC v. Tutera, No. 3:12-cv-01951-SI, 2013 WL 3818146, at *7-9 (D. Or. July 22, 2013) (finding minimum contacts under purposeful availment test where defendant sought out substantial, ongoing contractual relationship with and owed fiduciary duties to plaintiff LLCs that were incorporated and conducting business in forum state); Day v. Harrah's Hotel & Casino Las Vegas, No. 10cv1746-WQH-JMA, 2010 WL 4568686, at *5 (S.D. Cal. Nov. 2, 2010) (finding minimum contacts where defendant solicited business in forum state including by targeting forum residents); Geanacopulos v. Narconon Fresh Start, 39 F.Supp.3d 1127, 1132 (D. Nev. 2014) (same).
Jurisdiction in those cases was proper because "the contacts proximately result[ed] from actions by the defendant himself that create[d] a `substantial connection' with the forum State." Burger King, 471 U.S. at 475 (citations and footnote omitted). But where, as here, the defendant's connection to the forum is based on the unilateral decisions of another party, jurisdiction is lacking. See id. at 475 n.17 (citing Kulko v. Superior Court of Cal., 436 U.S. 84, 93-94 (1978) (concluding California lacked jurisdiction over father-defendant in child support action even though father allowed child to reside with mother-plaintiff in California for longer than set forth in custody agreement and mother then brought claim for full custody and increased child support)).
Because Plaintiffs have not established the second prong of the purposeful direction test, the Court concludes it cannot exercise jurisdiction over AMS and need not address the other factors. See Picot, 780 F.3d at 1215 n.4.
For the foregoing reasons, the Court
IT IS SO ORDERED.
