MYERS V THE BENNETT LAW OFFICES

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*The panel unanimously finds these cases suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2).

Opinion by Judge Tashima

1501

COUNSEL

Jeffery I. Pitegoff, Las Vegas, Nevada, for plaintiff-appellant

Samuel Myers.

Mitchell D. Gliner, Las Vegas, Nevada, for plaintiff-appellant

Timothy Myers.

Daniel F. Polsenberg, Las Vegas, Nevada, for the defendant-

appellee.

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OPINION

TASHIMA, Circuit Judge:

I.

In these consolidated appeals, we are asked to decide

whether the district court erred when it dismissed these

actions for lack of personal jurisdiction and improper venue.

We review the district court's dismissals de novo. See Panavi-

sion Int'l, L.P. v. Toeppen, 141 F.3d 1316, 1319--20 (9th Cir.

1998) (personal jurisdiction); Passantino v. Johnson & John-

son Consumer Prods., Inc., 212 F.3d 493, 504 (9th Cir. 2000)

1502

(venue). The district court had federal question jurisdiction

pursuant to 15 U.S.C. § 1681p and 28 U.S.C.§ 1331. We

have jurisdiction over the district court's final orders pursuant

to 28 U.S.C. § 1291, and we reverse.

II.

In a prior state court action, Jim Barber ("Barber"), who

was a paralegal with the Bennett Law Offices ("Bennett"),

sued Automated Recovery System ("ARS") (a company

owned and operated by both Timothy and Samuel Myers) for

unlawful debt collection practices. During the course of that

lawsuit, Barber contacted National Data Research ("NDR"),

an investigative information service provider, and allegedly

ordered a credit report on ARS using one of Bennett's order

forms and on the Myerses through an oral communication

with Terry Sweet, NDR's president. The Myerses claimed

that such search was for an improper purpose and brought

these two actions against Bennett alleging violation of the

Fair Credit Reporting Act ("FCRA"). Both Plaintiffs, Samuel

Myers and Timothy Myers, allege that they are residents of

Nevada. Bennett is a Utah corporation with its principal place

of business in that state.

Based on its status as a Utah resident and its alleged lack

of contacts with Nevada, Bennett moved to dismiss each of

these actions for lack of personal jurisdiction and improper

venue. Adopting identical reports and recommendations of a

magistrate judge in each case, the district court dismissed both

cases. Plaintiffs appeal.

III.

A.

When personal jurisdiction is challenged by motion as

an initial response, and "the [district] court determines that it

will receive only affidavits or affidavits plus discovery mate-

1503

rials, these very limitations dictate that a plaintiff must make

only a prima facie showing of jurisdictional facts through the

submitted materials in order to avoid a defendant's motion to

dismiss." Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d

1280, 1285 (9th Cir. 1977) (footnote omitted). Thus, in order

to defeat Bennett's motions to dismiss for lack of personal

jurisdiction, at this stage, Plaintiffs only needed to make,

through their pleadings and affidavits, a prima facie showing

of the jurisdictional facts. See Farmers Ins. Exch. v. Portage

La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990).

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 such jurisdiction comports with the constitutional

requirement of due process." ATT Co. v. Compagnie Bru-

xelles Lambert, 94 F.3d 586, 589 (9th Cir. 1996).

Federal Rule of Civil Procedure 4(k)(1)(A) provides

that "[s]ervice of a summons . . . is effective to establish juris-

diction over the person of a defendant [ ] who could be sub-

jected to the jurisdiction of a court of general jurisdiction in

the state in which the district court is located. " Fed. R. Civ.

P. 4(k)(1)(A). Therefore, in order to determine whether juris-

diction is authorized, we look to Nevada's long-arm statute.

The Nevada Supreme Court has interpreted Nevada's long-

arm statute to reach the limits of federal constitutional due

process. See Judas Priest v. Second Judicial Dist. Court, 760

P.2d 137, 138 (Nev. 1988). Accordingly, the only relevant

analysis is whether Bennett has certain minimum contacts

with the forum state so as to satisfy specific jurisdiction. 1

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1 No one argues that Bennett is subject to general jurisdiction in the state

of Nevada or that Bennett somehow consented to jurisdiction there.

1504

We use a three-part test to evaluate the nature and qual-

ity of Bennett's contacts for purposes of specific jurisdiction:

First, some action must be taken whereby Bennett purpose-

fully availed itself of the privilege of conducting activities in

the forum, thereby invoking the benefits and protections of

the forum's law. See Sher v. Johnson, 911 F.2d 1357, 1361

(9th Cir. 1990). Second, the claim must arise out of Bennett's

forum-related activities. See id. Third, the exercise of jurisdic-

tion must be reasonable. See id.

2.

a.

The Supreme Court has established that the purposeful

availment prong of the personal jurisdiction analysis can be

met if a defendant's "intentional conduct [in the foreign state

was] calculated to cause injury to [the plaintiff] in [the forum

state]." Calder v. Jones, 465 U.S. 783, 791 (1984)

("Jurisdiction over petitioners is therefore proper in California

based on the `effects' of their Florida conduct in California.");

Brainerd v. Governors of the Univ., 873 F.2d 1257, 1259 (9th

Cir. 1989) (finding purposeful availment when the defendant

"intentionally directed his activities into the forum."). Our

most recent discussion of the Calder "effects test" is found in

Bancroft & Masters, Inc. v. Augusta Nat'l Inc., 223 F.3d 1082

(9th Cir. 2000). In that case, we concluded that:

In Calder, the Supreme Court held that a foreign act that is both aimed at and has effect in the forum state satisfies the purposeful availment prong of the specific jurisdiction analysis. . . . Subsequent cases have struggled somewhat with Calder's import, rec- ognizing that the case cannot stand for the broad proposition that a foreign act with foreseeable effects in the forum state always gives rise to specific juris- diction. We have said that there must be "something

1505

more," but have not spelled out what the something more must be. We now conclude that "something more" is what the Supreme Court described as "express aiming " at the forum state. Express aiming is a concept that in the jurisdictional context hardly defines itself. From the available cases, we deduce that the 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.

Id. at 1087 (citations omitted). Accordingly, we focus our analysis on whether Plaintiffs have made a prima facie show- ing that Bennett knew that its allegedly wrongful acts were aimed at Nevada residents.

i.

As a preliminary matter, Bennett argues that we may

not consider Barber's acts in our analysis because Barber

allegedly acted outside the scope of his employment. We

reject that argument for two reasons. First, Plaintiffs have

made a prima facie showing that Barber had at least apparent

authority to request the credit reports and, as such, should be

considered the agent of Bennett regardless of whether author-

ity was actually given. 2 See, e.g., Sher, 911 F.2d at 1362 ("For

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2 A party claiming apparent authority of an agent must prove (1) that the

acting party subjectively believed that the agent had authority to act for the

principal and (2) that the subjective belief in the agent's authority was

objectively reasonable. See Great Am. Ins. Co. v. General Builders, Inc.,

934 P.2d 257, 261 (Nev. 1997). Furthermore, apparent authority, including

a third party's reasonable reliance on such authority, is a question of fact.

See id. Here, the declaration of Terry Sweet suffices to establish a prima

facie case of apparent authority. In that declaration, Sweet states that "an

employee of Bennett Law Offices, Jim Barber, orally requested . . . the

credit reports of both Timothy Myers and Samuel Myers," and that Sweet

would not have provided them "absent the request from Bennett Law

Offices." Accordingly, Plaintiffs are entitled to the inference that Barber

had apparent authority to request the credit report.

1506

purposes of personal jurisdiction, the actions of an agent are

attributable to the principal."); E.I. duPont de Nemours & Co.

v. Rhodia Fiber & Resin Intermediates, S.A.S., 197 F.R.D.

112, 122 (D. Del. 2000) (finding that evidence that an agent

had apparent authority to act on the principal's behalf was

sufficient to exercise personal jurisdiction over the principal).

Second, even if actual or apparent authority is lacking, Plain-

tiffs have also made a prima facie showing that Bennett rati-

fied the acts of its agent. 3 See Wessels, Arnold & Henderson

v. National Med. Waste, Inc., 65 F.3d 1427, 1433 (8th Cir.

1995) (finding that acts of agent outside the scope of his

employment may be imputed to principal for purpose of per-

sonal jurisdiction if shown to have been ratified after the fact).

Therefore, for the purpose of personal jurisdiction analysis,

we impute the acts of Barber to Bennett.

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3 Plaintiffs provided an itemized invoice by NDR, indicating next to

Plaintiffs' names that a credit report had been retrieved. Furthermore,

Plaintiffs have provided evidence that the invoice was paid in full by Ben-

nett, without any objections. Thus, Plaintiffs are entitled to the inference

that Bennett was aware that Barber had requested the credit reports of

Plaintiffs, but yet failed to do anything about it. In that respect, the Nevada

Supreme Court has stated that

[w]here there is a duty to speak, silence can raise an estoppel quite as effectively as can words. A duty to speak arises when another is or may come under a misapprehension regarding the authority of the principal's agent. Under such circumstances, the principal is obligated to exercise due care, and to conduct himself as a reasonably prudent business person with normal regard for the interests of others. Thus, a person remaining silent when he ought, in the exercise of good faith, to have spoken, will not be allowed to speak when he ought, in the exercise of good faith, remain silent. Similarly, silence or failure to repudiate an agent's representations can give rise to an inference of affirmation.

Goldstein v. Hanna, 635 P.2d 290, 292 (Nev. 1981) (citations and internal quotation marks omitted). Therefore, Plaintiffs have adduced a prima facie case of ratification.

1507

ii.

Looking at the totality of Bennett's conduct, Plaintiffs

have made a prima facie showing that Defendant's conduct

was "expressly aimed" at the forum state. See Calder, 465

U.S. at 789. First, Bennett acted intentionally when it sent its

request for a credit inquiry to NDR. Also, the request was

"expressly aimed at [Nevada] because it individually target-

ed" the Myerses who Bennett knew were Nevada residents. 4

Bancroft & Masters, Inc., 223 F.3d at 1088. Therefore, it is

indisputable that Bennett intentionally aimed its conduct at

Nevada. It is also apparent that the effects of Bennett's con-

duct were felt in Nevada. The district court refused to place

the locus of the injury in Nevada because it found that the

"event complained of does not exist in Nevada. " Instead, the

district court found that the injury occurred wherever one

would access Plaintiffs' credit reports. This conclusion is

erroneous.

The FCRA is intended to safeguard against the improper

reporting of information on a credit report (either by the credit

reporting agency or by the furnisher of credit information)

and against the improper disclosure of a credit report. See 15

U.S.C. § 1681(b) (stating that it is the purpose of the FCRA

to "require that consumer reporting agencies adopt reasonable

procedures for meeting the needs of commerce for consumer

credit . . . in a manner which is fair and equitable to the con-

sumer, with regard to the confidentiality, accuracy, relevancy,

and proper utilization of such information"); see generally id.

§§ 1681b-1681s-2. 5

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4 Bennett argues that Samuel Myers is not actually a Nevada resident. To

support this assertion, Bennett points to the affidavit of Barber which

states that "Samuel Myers, stated in my presence and in his deposition that

he actually resides in California." Samuel Myers' complaint, however,

clearly identifies him as a Nevada resident. Therefore, this Plaintiff has

established a prima facie case that he his a resident of Nevada.

5 Almost all of the FCRA's provisions address the dual purpose of accu-

racy and confidentiality. See, e.g., 15 U.S.C. § 1681b (listing the exclusive

1508

When a consumer brings an action for violation of the

disclosure provisions of the FCRA, the Act's purpose of pro-

tecting consumer confidentiality is implicated. In that respect,

such cases are akin to invasion of privacy cases under state

law--cases where the plaintiff alleges that the defendant

unlawfully invaded the plaintiff's privacy by obtaining infor-

mation deemed confidential. We implied so in Hansen v.

Morgan, 582 F.2d 1214, 1217 (9th Cir. 1978) (finding that the

plaintiffs' complaint, which alleged willful and negligent fail-

ure to comply with the FCRA and thus unlawfully violated

the plaintiffs' right to privacy, stated a valid claim), and at

least three of our sister circuits have agreed with that charac-

terization. See Bakker v. McKinnon, 152 F.3d 1007, 1013 (8th

Cir. 1998) (upholding a damage award in an action brought

under the FCRA based on the emotional distress caused by

the defendant's invasion of privacy into the plaintiff's credit

report); Yang v. Gov't Employees Ins. Co., 146 F.3d 1320,

1322 (11th Cir. 1998) (recognizing FCRA's dual purpose of

facilitating accurate reporting and of protecting privacy);

Zamora v. Valley Fed. Sav. & Loan Ass'n, 811 F.2d 1368,

1370 (10th Cir. 1987) ("By enacting the FCRA, Congress

intended to prevent invasions of consumers' privacy.").

"In the `right of privacy' cases the primary damage is

the mental distress from having been exposed to public view."

Time, Inc. v. Hill, 385 U.S. 374, 385 n.9 (1967). That mental

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permissible purposes for the dissemination of consumer reports); id.

§ 1681c (limiting information that can be included on a credit report); id.

§ 1681d (requiring consent for investigative credit reports); id. § 1681e

(listing compliance procedures for credit reporting agencies); id. § 1681g-

1681h (addressing disclosure to the consumer); id. § 1681i (governing

procedures to dispute accuracy of credit report); id. § 1681m (addressing

restrictions on users of credit reports); id. § 1681n (providing civil reme-

dies, and statutory penalties, for willful noncompliance); id. § 1681o (pro-

viding civil remedies for negligent noncompliance); id. § 1681q

(providing for criminal penalties for obtaining information under false pre-

tense); id. § 1681s-2 (addressing the responsibilities of furnishers of infor-

mation to provide accurate information to consumer reporting agencies).

1509

distress can only be felt where Plaintiffs' "sensibilities" reside

--that is, Nevada. See Bils v. Nixon, Hardgrave, Devans &

Doyle, 880 P.2d 743, 746 (Ariz. Ct. App. 1994) ("the only

place an `event' can occur constituting a violation of [an Ari-

zona resident's] right to privacy is Arizona."). Accordingly,

"the brunt of the harm, in terms both of [Plaintiffs'] emotional

distress and [sensitivities], was suffered in[Nevada]. In sum,

[Nevada] is the focal point both of the [credit report inquiry]

and of the harm suffered." Calder, 465 U.S. at 789.

Pursuant to the foregoing discussion, we find that Ben-

nett's retrieval of Plaintiffs' credit report indicates "[t]he pres-

ence of individualized targeting [which] . . . separates th[is]

cases from others in which we have found the effects test

unsatisfied." Bancroft & Masters, Inc., 223 F.3d at 1088. As

a result, we conclude that Bennett purposefully availed itself

of Nevada by "intentionally direct[ing] his activities into

[Nevada]." Brainerd, 873 F.2d at 1259.

b.

We turn next to the second prong of our personal juris-

diction analysis--causation. In determining whether Plain-

tiffs' claims arise out of Bennett's local conduct, the Ninth

Circuit follows the "but for" test. See Ballard v. Savage, 65

F.3d 1495, 1500 (9th Cir. 1995). Hence, Plaintiffs must show

that they would not have suffered an injury "but for" Ben-

nett's forum related conduct. See id. Once again, Bennett's

primary argument is that there can be no connection because

Bennett itself did not place the inquiry into Plaintiffs' credit

reports. As discussed above, however, Plaintiffs have pres-

ented a prima facie case that Barber acted as agent for Ben-

nett. Thus, Barber's acts are relevant to this inquiry. Taking

these acts into consideration, it is beyond doubt that Plaintiffs

would not have suffered harm but for Bennett's inquiry into

their credit reports. As such, we find that the claim arises out

of Bennett's local conduct.

1510

c.

Finally, we turn to the reasonableness inquiry. In determin-

ing whether the exercise of jurisdiction over a nonresident

defendant is reasonable, precedent instructs us to consider

seven factors: (1) the extent of Bennett's purposeful interjec-

tion into the forum state's affairs; (2) the burden on Bennett

of defending in the forum; (3) the extent of conflict with the

sovereignty of Bennett's home state; (4) the forum state's

interest in adjudicating the dispute; (5) the most efficient judi-

cial resolution of the controversy; (6) the importance of the

forum to Plaintiffs' interests in convenient and effective

relief; and (7) the existence of an alternative forum. See Core-

Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1487--88 (9th

Cir. 1993). "None of the factors is dispositive in itself;

instead, we must balance all seven." Id. at 1488. Furthermore,

because Bennett purposefully directed its activities at Plain-

tiffs in Nevada, "[t]his placed the burden on[it] to `present a

compelling case that the presence of some other consider-

ations would render jurisdiction unreasonable.' " Panavision,

141 F.3d at 1322 (quoting Core-Vent, 11 F.3d at 1487).

Bennett has not met its burden. Bennett's main argu-

ment posits that the Nevada district court had no interest in

applying a consumer credit reporting law to a Nevada corpo-

ration, "the only (legal) person on which a report was

ordered." As stated above, however, Plaintiffs have made a

prima facie showing that Bennett ordered consumer reports on

the two individual Plaintiffs, as well. Bennett also argues that

a proper forum exists elsewhere and, for this reason, exercise

of jurisdiction in Nevada is improper. The mere existence of

an alternative forum, however, cannot possibly satisfy Ben-

nett's burden to present a compelling case that jurisdiction is

unreasonable. See Panavision, 141 F.3d at 1322. Bennett pro-

vides no other justification to support its claim that the exer-

cise of jurisdiction would be unreasonable under the

circumstances. Accordingly, we conclude that Bennett has

1511

failed to meet its burden and that exercise of personal jurisdic-

tion in this case is therefore reasonable.

B.

On the venue issue, because subject matter jurisdiction

is not founded solely on diversity of citizenship, the applica-

ble statute is 28 U.S.C. § 1391(b). Under that statute, venue

is proper in a judicial district if "a substantial part of the

events or omissions giving rise to the claim occurred" in that

district. 28 U.S.C. § 1391(b)(2); see also Lamont v. Haig, 590

F.2d 1124, 1134--35 (D.C. Cir. 1978) ("the substantiality of

the operative events is determined by assessment of their ram-

ifications for efficient conduct of the suit"). With this policy

in mind, at least one court has found that in a tort action, the

locus of the injury was a relevant factor. Cf. Bates v. C & S

Adjusters, Inc., 980 F.2d 865, 867--68 (2d Cir. 1992). As

noted above, at least one of the "harms" suffered by Plaintiffs

is akin to the tort of invasion of privacy and was felt in

Nevada. Accordingly, a substantial part of the events giving

rise to the claim occurred in Nevada. Thus, venue was proper.

IV.

For the foregoing reasons, we reverse the district court's

orders dismissing these actions for lack of personal jurisdic-

tion and improper venue and remand the cases for further pro-

ceedings.

REVERSED and REMANDED.