Gamblers’ Suit Has 9th Circuit Pulling Its Hair

     (CN) – The 9th Circuit has no business letting two professional gamblers bring a federal complaint in Nevada over $97,000 seized from them at an airport in Georgia, dissenting judges argued.
     “With the stroke of a pen, our circuit returns to a discredited era of specific personal jurisdiction, where foreseeability reigns supreme and purposeful direction is irrelevant,” Judge M. Margaret McKeown wrote Wednesday, slamming her colleagues for voting down an en banc hearing of the case.
     Gina Fiore and Keith Gipson were on their way home to Nevada in 2006 after a trip to San Juan, Puerto Rico, when a drug-sniffing dog pawed one of their bags during a layover in Atlanta. Agent Anthony Walden of the Drug Enforcement Administration then confiscated the $97,000 inside the bag, which professional gamblers characterized as winnings and seed money.
     Fiore and Gipson tried to get their money back for nearly a year, arguing that Walden had falsified a probable cause affidavit.
     After a prosecutor eventually determined that Walden’s affidavit improperly omitted exculpatory evidence, Fiore and Gipson were reunited with their cash and sued Walden in Nevada for violations of the Fourth Amendment.
     A Las Vegas federal judge dismissed the case for improper venue, finding that it lacked personal jurisdiction because the alleged wrongdoing had occurred in Georgia. But a divided panel of the 9th Circuit later reversed, determining that Walden’s alleged falsifications had been “aimed at Nevada,” even if he actually carried them out in Georgia.
     The San Francisco-based court denied Walden’s petition to rehear the case en banc on Wednesday, much to the vehement dissatisfaction of eight judges.
     “In this case, the panel majority disregarded that fundamental requirement of due process,” Judge Diarmuid O’Scannlain wrote. “It held that a Nevada court could exercise personal jurisdiction over a defendant for his allegedly tortious conduct in Georgia even though: (1) all of the actions forming the basis of the plaintiffs’ sole legal claim were taken in and directed at Georgia, and (2) when the defendant took those actions he did not know that the plaintiffs had any relevant connection to Nevada.”
     In allowing the panel ruling to stand, the 9th Circuit flouted circuit and Supreme Court precedent related to personal jurisdiction, O’Scannlain added, citing Burger King Corp. v. Rudzewicz and Calder v. Jones.
     “The panel made the requirements of due process mean something wholly different in our circuit than they do in other circuits,” he wrote. “We should have corrected this by taking this case en banc.”
     Judge McKeown said the majority’s decision allows for a “virtually limitless expansion of personal jurisdiction” and regrettably returns the court to the “freeform foreseeability standard rejected by Burger King and Calder.”
     “The due process clause requires that before a distant state exercises specific jurisdiction over a defendant, the defendant must purposefully direct activities at forum residents resulting in injuries arising out of or relating to those activities,” she wrote. “Under the majority’s construct, mere knowledge of the potential out-of-state plaintiff’s residence, along with a wrongful act, confers specific personal jurisdiction. This runs afoul of both due process guarantees and Supreme Court precedent. Asserting personal jurisdiction over Walden broadens the specific jurisdiction test from one requiring targeted ‘express aiming’ to one where any attenuated foreign act with foreseeable effects upon a forum resident confers specific jurisdiction.”
     Judges Ronald Gould, Richard Tallman, Consuelo Callahan, Carlos Bea, Sandra Ikuta and N. Randy Smith joined McKeown’s dissent. Tallman, Callahan, Bea and Ikuta joined O’Scannlain’s opinion as well.

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