“The Ninth Circuit already 15 determined that [ABOR] is entitled to immunity as a matter of law . . . .”
How later courts described this case
- “The Ninth Circuit already 15 determined that [ABOR] is entitled to immunity as a matter of law . . . .”
- “[I]n order to bring a 13 damage action against a [state] official in his individual capacity, and thereby avoid 14 the bar of sovereign immunity, the normal rules for establishing in personam 15 jurisdiction apply.”
- finding California state college 3 employees sued in official capacity immune
- “[W]e conclude that [ABOR] is 17 protected by the [E]leventh [A]mendment.”
Written by the judges who cited it.
The opinion
O
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8 United States District Court
9 Central District of California
10
11 THERON AYCH, Case № 2:23-cv-07282-ODW (MARx)
12 Plaintiff,
ORDER GRANTING MOTION TO
13 v.
DISMISS [41]
14 UNIVERSITY OF ARIZONA et al.,
15
Defendants.
16
17 I. INTRODUCTION
18 Plaintiff Theron Aych brings this action alleging racketeering, anti-competitive
19 conduct, discrimination, and various tort causes of action. (See Compl., ECF No. 1.)
20 Defendants University of Arizona (“UofA”), The Arizona Board of Regents
21 (“ABOR”), Dave Heeke, Jedd Fisch, and Jimmie Dougherty (collectively,
22 “Defendants”) move to dismiss Aych’s claims against them pursuant to Federal Rules
23 of Civil Procedure (“Rules” or “Rule”) 8, 9, 12(b)(1), 12(b)(2), and 12(b)(6). (See
24 Mot. Dismiss (“Mot.” or “Motion”), ECF No. 41.) Finding the Court lacks subject
25 matter and personal jurisdiction over Defendants, the Court GRANTS the Motion.1
26
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28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the
matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15.
1 II. BACKGROUND2
2 From 2017 to 2020, Aych was an assistant coach for the UofA football team.
3 (Compl. ¶ 1.) Beginning in 2018, Kevin Sumlin was Aych’s Head Coach. (Id. ¶ 36.)
4 During the 2018 to 2020 football seasons, UofA football had a losing record. (Id.
5 ¶ 37.) After the 2020 season, UofA terminated the entire coaching staff, including
6 Aych, due to a “poor season.” (Id.) UofA then hired Fisch as Head Coach. (Id. ¶ 38.)
7 UofA Director of Athletics Heeke had a longstanding relationship and history with
8 Fisch. (Id.) Fisch in turn hired Dougherty as Head Assistant Coach. (Id. ¶ 40.) Fisch
9 and Dougherty previously worked together at the University of California, Los
10 Angeles (“UCLA”), in 2017,3 and at the University of Michigan before that. (Id.)
11 On Dougherty’s first day at UofA, Dougherty handed a flash drive to a staff
12 member and requested the staff member update the drive’s files to reflect UofA logos.
13 (Id. ¶ 41.) The staff member reviewed the drive’s files and found they appeared to
14 include Sumlin’s playbook and other UofA documents. (Id. ¶ 42.) From these facts,
15 Aych concludes that UofA, ABOR, Heeke, Fisch, Dougherty, and others conspired
16 and purposefully disseminated Sumlin’s private football playbook to opposing college
17 football teams from National Collegiate Athletic Association (“NCAA”) and
18 Pacific 12 Conference (“Pac-12”) institutions, including UCLA, in order to torpedo
19 UofA’s 2018 to 2020 football seasons so UofA could terminate the coaching staff
20 under the pretense of ineffective coaching. (Compl. ¶¶ 2, 4, 68.)
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2 Background facts derive from Aych’s well-pleaded allegations, unless otherwise noted. See
25 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court does not accept as true speculative or
conclusory allegations. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
26 3 The Court DENIES Defendants’ request for judicial notice that Fisch coached at UCLA only in the
year 2017, and not in 2018 to 2020 as Aych alleges, as this fact is not independently verifiable from
27
a source whose accuracy cannot be questioned. The website link Defendants provide for UofA
28 athletics staff directory does not list Fisch’s time at UofA. See https://arizonawildcats.com/staff-
directory/jedd-fisch/1529 (indicating the page no longer exists).
1 Based on the foregoing facts, Aych brings this legal action against Defendants
2 and others.4 (Compl. ¶¶ 61–103.) As relevant to the Motion, Aych asserts two causes
3 of action against Heeke, Fisch, and Dougherty (“Individual Defendants”) for
4 racketeering under 18 U.S.C. §§ 1961–68 (“RICO”) and anti-competitive conduct in
5 violation of the Sherman Act, 15 U.S.C. § 1. (Compl. ¶¶ 61–82.) Aych asserts four
6 causes of action against ABOR and UofA for intentional and negligent interference
7 with prospective economic advantage, fraud, and defamation. (Compl. ¶¶ 83–103.)
8 Defendants move to dismiss Aych’s claims against them, pursuant to:
9 (i) Rule 12(b)(1), for lack of subject matter jurisdiction; (ii) Rule 12(b)(2), for lack of
10 personal jurisdiction; and (iii) Rule 12(b)(6), for failure to state a claim. (Mot. 11.)
11 Aych filed an untimely opposition. (See generally Opp’n, ECF No. 55.) Defendants
12 timely replied. (Reply, ECF No. 61.)
13 III. LEGAL STANDARDS
14 A. Rule 12(b)(1)
15 Pursuant to Rule 12(b)(1), a party may move to dismiss a case for lack of
16 subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). “A Rule 12(b)(1) jurisdictional
17 attack may be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039
18 (9th Cir. 2004). “In a facial attack, the challenger asserts that the allegations
19 contained in a complaint are insufficient on their face to invoke federal jurisdiction.”
20 Id. “[I]n a factual attack, the challenger disputes the truth of the allegations that, by
21 themselves, would otherwise invoke federal jurisdiction.” Id. In resolving a factual
22 attack, “the district court may review evidence beyond the complaint without
23 converting the motion to dismiss into a motion for summary judgment.” Id. (citing
24 Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003)). The
25 court does not need to presume the truthfulness of the plaintiff’s allegations. Id. Once
26 a party has moved to dismiss for lack of subject matter jurisdiction under
27
4 Aych also brings a cause of action for discrimination under 42 U.S.C. § 1981 against Defendants
28 NCAA and Pac-12. (Compl. ¶¶ 53–60.) The Court addresses the NCAA’s motion to dismiss, (ECF
No. 49), in a separate order.
1 Rule 12(b)(1), the opposing party bears the burden of establishing the court’s
2 jurisdiction. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994);
3 Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010).
4 B. Rule 12(b)(2)
5 Federal courts have the power to exercise personal jurisdiction to the extent
6 permitted by the laws of the states in which they sit. Fed. R. Civ. P. 4(k)(1)(A).
7 “California’s long-arm jurisdictional statute is coextensive with federal due process
8 requirements . . . .” Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800–01
9 (9th Cir. 2004); see Cal. Civ. Proc. Code § 410.10. When this is the case, the court
10 inquires whether the defendant “ha[s] certain minimum contacts with [the forum state]
11 such that the maintenance of the suit does not offend ‘traditional notions of fair play
12 and substantial justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)
13 (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)); Glencore Grain Rotterdam
14 B.V. v. Shivnath Rai Harnarain Co., 284 F.3d 1114, 1123 (9th Cir. 2002).
15 When a defendant seeks dismissal under Rule 12(b)(2), the plaintiff bears the
16 burden of demonstrating that personal jurisdiction is proper. Menken v. Emm,
17 503 F.3d 1050, 1056 (9th Cir. 2007). Where, as here, a motion to dismiss for lack of
18 personal jurisdiction is based on written materials rather than an evidentiary hearing,
19 “the plaintiff need only make a prima facie showing of jurisdictional facts.” Sher v.
20 Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990). However, the plaintiff cannot “simply
21 rest on the bare allegations of its complaint.” Schwarzenegger, 374 F.3d at 800. The
22 court “may not assume the truth of allegations in a pleading which are contradicted by
23 affidavit, but factual conflicts between dueling affidavits must be resolved in the
24 plaintiff’s favor.” Ayla, LLC v. Alya Skin Pty. Ltd., 11 F.4th 972, 978 (9th Cir. 2021)
25 (internal citation and quotation marks omitted). “Mere ‘bare bones’ assertions of
26 minimum contacts with the forum or legal conclusions unsupported by specific factual
27 allegations will not satisfy a plaintiff’s pleading burden.” Swartz v. KPMG LLP,
28 476 F.3d 756, 766 (9th Cir. 2007). Nor will “random,” “fortuitous,” or “attenuated”
1 contacts establish specific personal jurisdiction. Burger King Corp. v. Rudzewicz,
2 471 U.S. 462, 475 (1985).
3 C. Leave to Amend
4 Where a district court grants a motion to dismiss, it should generally provide
5 leave to amend unless it is clear the complaint could not be saved by any amendment.
6 See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d
7 1025, 1031 (9th Cir. 2008). Leave to amend may be denied when “the court
8 determines that the allegation of other facts consistent with the challenged pleading
9 could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture
10 Co., 806 F.2d 1393, 1401 (9th Cir. 1986). Thus, leave to amend “is properly
11 denied . . . if amendment would be futile.” Carrico v. City & County of San
12 Francisco, 656 F.3d 1002, 1008 (9th Cir. 2011).
13 IV. DISCUSSION
14 Defendants move to dismiss Aych’s claims against them based on a lack of
15 subject matter jurisdiction, because the claims are barred by the Eleventh
16 Amendment’s sovereign immunity, and based on the court’s inability to exercise
17 personal jurisdiction over them.5 (Mot. 11.) Before considering Defendants’ moving
18 arguments, the Court first addresses several preliminary issues.
19 A. Preliminary Matters
20 First, Aych filed this action on September 1, 2023, against a number of
21 defendants, including UCLA and Pac-12. (See Compl. ¶¶ 19, 21.) However, Aych
22 asserts no causes of action against UCLA and, more than nine months later, Aych has
23 still not served UCLA or Pac-12. Rule 4(m) provides, “If a defendant is not served
24 within 90 days after the complaint is filed, the court . . . must dismiss the action
25 without prejudice against that defendant or order that service be made within a
26 specified time.” Fed. R. Civ. P. 4(m); see also Hon. Otis D. Wright, II Standing Order
27
5 Defendants also argue Aych’s claims fail under Rule 12(b)(6). As the Court finds the first two
28 jurisdictional arguments meritorious, it declines to reach Defendants’ third argument pursuant to
Rule 12(b)(6).
1 § VI.A., https://www.cacd.uscourts.gov/honorable-otis-d-wright-ii. Due to Aych’s
2 failure to serve UCLA or Pac-12 within ninety days pursuant to Rule 4(m), or at any
3 time in the nine months since initiating this action, the Court DISMISSES UCLA and
4 Pac-12, without prejudice.
5 Next, in response to Defendants’ Rule 12 Motion, the Court issued an Order
6 reminding Aych that the Federal Rules of Civil Procedure permitted him to amend his
7 Complaint as a matter of course within twenty-one days of the Motion, if he so
8 elected, instead of opposing the Motion. (Order re Rule 15(a)(1)(B), ECF No. 44.)
9 “The Court has found that such reminders may advance judicial economy.” (Id.)
10 Aych elected not to amend as permitted by Rule 15, instead filing an opposition that
11 does not address many of the moving arguments four days after his deadline to
12 oppose. (See generally Opp’n.) Based on untimeliness alone, the Court could decline
13 to consider Aych’s opposition altogether and grant the Motion. See C.D. Cal. L.R. 7-
14 12 (“The Court may decline to consider any memorandum or other document not filed
15 within the deadline set by order or local rule. The failure to file any required
16 document . . . within the deadline, may be deemed consent to the granting or denial of
17 the motion.”).
18 Also, although he elected not to amend his Complaint pursuant to Rule 15,
19 Aych nevertheless improperly embeds a “Motion for Leave to Amend Complaint” in
20 his opposing memorandum, asserting that an “amended Complaint would make the
21 majority of the issues presented by Defendants moot.” (Opp’n 14–15 (emphasis
22 omitted).) Notably, it is precisely the purpose of Rule 15(a)(1)(B)’s leave to amend to
23 resolve through amendment uncontested pleading issues. Regardless, Aych’s
24 embedded motion is improper and the Court STRIKES it. (Id.) Accordingly, the
25 Court construes Aych’s request as seeking leave to amend to the extent the Court
26 grants the Motion.
27 Finally, Aych does not oppose or even respond to several of Defendants’
28 moving arguments. (See generally id. at 19–30.) He nominally addresses personal
1 jurisdiction, and opposes dismissal of the RICO, Sherman Act, and fraud claims, but
2 he fails to respond substantively or otherwise to Defendants’ arguments regarding
3 sovereign immunity, intentional and negligent interference with prospective economic
4 advantage, and defamation. (See generally id.) The Court could grant Defendants’
5 Motion in full on the basis of Aych’s concession that sovereign immunity bars the suit
6 against Defendants, or in part as to Aych’s concession that his claims for interference
7 and defamation are inadequately pleaded. See Heraldez v. Bayview Loan Servicing,
8 LLC, No. 2:16-cv-1978-R, 2016 WL 10834101, at *2 (C.D. Cal. Dec. 15, 2016)
9 (“Failure to oppose constitutes a waiver or abandonment of the issue.”), aff’d, 719 F.
10 App’x 663 (9th Cir. 2018).
11 Despite these procedural deficiencies, the Court nevertheless finds substantive
12 grounds for dismissal in Defendants’ moving arguments concerning sovereign
13 immunity and personal jurisdiction.
14 B. Sovereign Immunity—Eleventh Amendment
15 The Eleventh Amendment6 bars suits which seek relief against a state, an “arm
16 of the state,” its instrumentalities, or its agencies. Durning v. Citibank, N.A., 950 F.2d
17 1419, 1422–23 (9th Cir. 1991); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
18 89, 100 (1984) (holding Eleventh Amendment proscribes suit against state agencies
19 “regardless of the nature of the relief sought”). Public universities are entitled to
20 sovereign immunity under the Eleventh Amendment, as are their employees in their
21 official capacities7. See Rounds v. Or. State Br. of Higher Educ., 166 F.3d 1032, 1035
22 (9th Cir. 1999) (finding University of Oregon and Oregon State Board of Higher
23 Education immune under Eleventh Amendment); Mitchell v. L.A. Cmty. Coll. Dist.,
24
25 6 The Eleventh Amendment provides: “The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the United
26 States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const.
amend. XI.
27
7 The narrow exception to Eleventh Amendment immunity for suits seeking declaratory and
28 injunctive relief against official capacity state officers provided in Ex Parte Young, 209 U.S. 123,
155–56 (1908), does not apply here, as the only relief Aych seeks is damages, (see Compl., Prayer).
1 861 F.2d 198, 201–02 (9th Cir. 1988), holding modified on other grounds by Kohn v.
2 State Bar of Cal., 87 F.4th 1021 (9th Cir. 2023) (finding California state college
3 employees sued in official capacity immune). However, the Eleventh Amendment
4 does not bar suits seeking damages against public university employees in their
5 individual capacities. Stoner v. Santa Clara Cnty. Off. of Educ., 502 F.3d 1116, 1125
6 (9th Cir. 2007) (citing Hafer v. Melo, 502 U.S. 21, 30–31 (1991)).
7 Considering the entity Defendants first, UofA is a non-jural entity under
8 Arizona law and “cannot be sued in its own name.” Ansel Adams Publ'g Rts. Tr. v.
9 PRS Media Partners, LLC, 502 F. App’x 659, 660 (9th Cir. 2012). “[R]ather, the
10 [ABOR], as the governing body for Arizona’s public universities, is the proper
11 defendant for all actions against [UofA].” Id. Regarding ABOR, the Ninth Circuit
12 has consistently “held that ABOR is an arm of the State of Arizona for Eleventh
13 Amendment purposes.” Ariz. Students’ Ass’n v. Ariz. Bd. of Regents, 824 F.3d 858,
14 864–65 (9th Cir. 2016); Ansel Adams, 502 F. App’x at 661 (“The Ninth Circuit already
15 determined that [ABOR] is entitled to immunity as a matter of law . . . .”); Ronwin v.
16 Shapiro, 657 F.2d 1071, 1073 (9th Cir. 1981) (“[W]e conclude that [ABOR] is
17 protected by the [E]leventh [A]mendment.”) Accordingly, UofA and ABOR are
18 immune from Aych’s suit.
19 In contrast, Aych sues Individual Defendants in their individual capacities, (see
20 Compl. 1, 2), a fact which Defendants neglect to acknowledge, (Mot. 14–15 (arguing
21 state employees are immune from suit while omitting that sovereign immunity applies
22 only to suits in a state employee’s official capacity).) Therefore, Individual
23 Defendants may not invoke sovereign immunity from Aych’s suit.
24 C. Personal Jurisdiction
25 As Individual Defendants are not immune from this suit, the Court turns to
26 whether they are subject to personal jurisdiction in this Court. A non-resident
27 defendant may be subject to either general or specific personal jurisdiction. F.D.I.C. v.
28 British-Am. Ins. Co., 828 F.2d 1439, 1442 (9th Cir. 1987).
1 Defendants argue they are not subject to personal jurisdiction here because:
2 (1) they are not domiciled in or have continuous contacts with California—no general
3 personal jurisdiction; (2) they have not purposefully directed any conduct or availed
4 themselves of the benefits of conducting business in California—no specific personal
5 jurisdiction; and (3) RICO does not establish personal jurisdiction over them—no
6 RICO personal jurisdiction. (Mot. 17–18.) Aych does not respond to these arguments.
7 (See generally Opp’n 15–16.) Instead, under a heading purporting to address personal
8 jurisdiction, he contends venue is proper in this district pursuant to the RICO statute
9 because Individual Defendants transact business here. (Id.) As noted above, the
10 failure to respond to a moving argument constitutes concession or waiver, and the
11 Court could grant the Motion on this basis. See Heraldez, 2016 WL 10834101, at *2.
12 Nevertheless, the Court evaluates the three potential bases for personal jurisdiction
13 and finds them lacking.
14 1. General Personal Jurisdiction
15 A court may assert general jurisdiction over foreign defendants “to hear any and
16 all claims against them when their affiliations with the State are so ‘continuous and
17 systematic’ as to render them essentially at home in the forum State.” Goodyear
18 Dunlop Tires Ops., S.A. v. Brown, 564 U.S. 915, 919 (2011) (quoting Int’l Shoe,
19 326 U.S. at 317). Aych alleges Individual Defendants live and work in Arizona,
20 (Compl. ¶¶ 22–24); he does not allege they are domiciled in or have continuous
21 contacts with California, (see generally id.). Accordingly, Aych does not establish that
22 the Court may exercise general personal jurisdiction over Defendants.
23 2. Specific Personal Jurisdiction
24 To determine whether a defendant’s contacts with the forum state are sufficient
25 to render the exercise of specific jurisdiction reasonable, the Ninth Circuit applies a
26 three-prong test: (a) the nonresident defendant purposefully directs activities or
27 consummates some transaction with the forum-state, or performs some act by which
28 he personally avails himself of the privilege of conducting activities in that forum;
1 (b) the claim arises out of or relates to the defendant’s forum-related activities; and
2 (c) the exercise of jurisdiction comports with fair play and substantial justice, i.e., it is
3 reasonable. Schwarzenegger, 374 F.3d at 802. The party asserting jurisdiction, Aych
4 here, bears the burden of satisfying the first two prongs of this test. Once he has done
5 so, the burden shifts to the party contesting jurisdiction, Individual Defendants here, to
6 establish that the third prong—reasonableness—has not been satisfied. Id.
7 In assessing the first prong of the specific jurisdiction test, courts distinguish
8 between contract and tort cases. See Roth v. Garcia Marquez, 942 F.2d 617, 621
9 (9th Cir. 1991). Here, Aych brings claims against Individual Defendants sounding in
10 tort, for racketeering and anti-competitive conduct. See Barantsevich v. VTB Bank,
11 954 F. Supp. 2d 972, 991 (C.D. Cal. 2013) (finding fraud and RICO violations sound
12 in tort). For claims sounding in tort, courts apply a “purposeful direction test” and
13 look to “evidence that the defendant has directed his actions at the forum state, even if
14 those actions took place elsewhere.” Picot v. Weston, 780 F.3d 1206, 1212 (9th Cir.
15 2015) (quoting Schwarzenegger, 374 F.3d at 802–03). Thus, the first prong of specific
16 personal jurisdiction, purposeful direction, is satisfied when the plaintiff demonstrates
17 the defendant “(1) committed an intentional act, (2) expressly aimed at the forum
18 state, (3) causing harm that the defendant knows is likely to be suffered in the forum
19 state.” Dole Foods Co., Inc. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002); Calder v.
20 Jones, 465 U.S. 783 (1984).
21 Here, Aych contends Sumlin’s playbook was released to other football teams to
22 make UofA football lose for the 2018 to 2020 seasons, so that UofA could fire its
23 coaching staff. (Compl. ¶¶ 68, 74.) Thus, to garner personal jurisdiction in
24 California, the purposeful direction at issue can only be the alleged release of Sumlin’s
25 playbook, as all other aspects of Aych’s contention—making UofA football lose and
26 firing UofA coaching staff—are centered in Arizona.
27 The alleged release of Sumlin’s playbook does not support specific personal
28 jurisdiction over Individual Defendants. First, Aych consistently alleges that UofA, or
1 unknown actors within UofA, are responsible. (Id. ¶¶ 2 (“[UofA] purposefully
2 transferred”), 33 (“released by UofA”), 44 (“unknown actors within UofA”), 48 (“a
3 coordinated effort by [UofA]”).) Yet, Aych alleges Fisch and Dougherty have only
4 worked at UofA since 2021. (Id. ¶¶ 23–24.) As Aych’s own allegations employ Fisch
5 or Dougherty at UofA starting long after the alleged release of Sumlin’s playbook
6 (necessarily sometime before the 2018 to 2020 football seasons), Fisch and Dougherty
7 cannot be the “unknown actors within” UofA who Aych alleges purposefully
8 disseminated Sumlin’s playbook. (Id. ¶ 44.)
9 Second, even accepting the speculative inference that Heeke is responsible for
10 the playbook’s alleged release, Aych asserts that it was released and transferred to
11 “one or more of the NCAA and Pac-12” member institutions. (See, e.g., Compl. ¶ 33.)
12 The NCAA is an association of “more than 1,200 United States colleges, universities,
13 and athletic conferences,” (id. ¶ 18), and Pac-12 has member institutions in Arizona,
14 California, Colorado, Oregon, Utah, and Washington, (id. ¶¶ 21, 28). Thus, Aych is
15 alleging that “UofA purposely transferred and released” the playbook to opposing
16 teams in at least six states (Pac-12), and likely many more (NCAA). (See Compl. ¶ 2.)
17 This forecloses a finding that the playbook’s release was “expressly aimed”
18 particularly at California. Dole Foods, 303 F.3d at 1111. Similarly, the harmful
19 effects that Aych alleges—his termination with the entire coaching staff—occurred in
20 Arizona, precluding a finding that Heeke or UofA knew harm was “likely to be
21 suffered in” California. Id.
22 Aych fails to meet his burden to establish that Individual Defendants are subject
23 to specific personal jurisdiction in this Court, and the Court finds they are not.
24 3. RICO Personal Jurisdiction
25 Finally, Aych makes a cursory reference in a section heading to the RICO venue
26 and service statute, 18 U.S.C. § 1965(a).8 (Opp’n 15.) Although not clearly
27
8 Section 1965(a) provides: “(a) Any civil action or proceeding under this chapter against any person
28 may be instituted in the district court of the United States for any district in which such person
resides, is found, has an agent, or transacts his affairs.”
1 articulated, Aych may be arguing that, since Individual Defendants are allegedly part
2 of a nationwide conspiracy, they should be subject to personal jurisdiction under
3 RICO’s venue and process provision.
4 RICO authorizes nationwide service and the exercise of jurisdiction over a
5 defendant present anywhere in the United States. Butcher’s Union Local No. 498 v.
6 SDC Inv., Inc., 788 F.2d 535, 539 (9th Cir. 1986); Barantsevich, 954 F. Supp. 2d
7 at 991. However, this authorization is not unlimited. Butcher’s Union, 788 F.2d
8 at 539. Before § 1965(a) authorizes personal jurisdiction over the conspiracy
9 defendants, “the court must have personal jurisdiction over at least one of the
10 participants,” and “the plaintiff must show that there is no other district in which a
11 court will have personal jurisdiction over all of the alleged co-conspirators” Id. See
12 also Gilbert v. DaGrossa, 756 F.2d 1455, 1459 (9th Cir. 1985) (“[I]n order to bring a
13 damage action against a [state] official in his individual capacity, and thereby avoid
14 the bar of sovereign immunity, the normal rules for establishing in personam
15 jurisdiction apply.”)
16 Aych does not satisfy these requirements. As discussed above, the Court lacks
17 personal jurisdiction over any Individual Defendant alleged to have engaged in the
18 conspiracy to release Sumlin’s playbook, torpedo UofA’s football seasons, and fire the
19 coaching staff. Furthermore, as Defendants correctly note, there is another district in
20 which the court would have personal jurisdiction over all of the alleged co-
21 conspirators—Arizona. As such, Aych fails to establish that the Court may exercise
22 personal jurisdiction over Individual Defendants pursuant to RICO.
23 V. CONCLUSION
24 For the reasons discussed above, the Court GRANTS Defendants’ Motion to
25 Dismiss, without leave to amend. (ECF No. 41.) The Court DISMISSES UofA and
26 ABOR with prejudice and without leave to amend, as leave to amend would be futile
27 against these immune Defendants. Carrico, 656 F.3d at 1008. The Court
28 DISMISSES Individual Defendants without prejudice, for lack of personal
1 || jurisdiction, and without leave to amend, as the Court finds “the allegation of other
2|| facts consistent with the challenged pleading could not possibly cure the deficiency.”
3 | Schreiber Distrib., 806 F.2d at 1401.
4
5 IT IS SO ORDERED.
6 NN
July 5, 2024 EE yy po
8 OTIS ac I
9 UNITED STATES DISTRICT JUDGE
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