UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

WORLD WIDE ASSOCIATION OF SPECIALTY PROGRAMS AND SCHOOLS, a Utah corporation,

Plaintiff - Appellant,

v.

THOMAS G. HOULAHAN, a foreign individual,

Defendant - Appellee.

No. 04-4181

(D.C. No. 2:04-CV-107-DAK)

(D. Utah)

ORDER AND JUDGMENT*

Before HENRY, BRISCOE, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Plaintiff World Wide Association of Specialty Programs and Schools, an association of specialty schools for troubled teens, filed this diversity case alleging defamation and intentional interference with prospective economic advantage. The district court granted defendant Thomas G. Houlahan's motion for dismissal, based on lack of personal jurisdiction. We affirm.

Background Facts

The World Wide Association of Speciality Programs and Schools (the association) maintains its principal place of business in St. George, Utah. Mr. Houlahan, a reporter who resides in Washington, D.C., researched a story for United Press International about alleged abuse at association schools located in New York, South Carolina, Jamaica, and Mexico. In its lawsuit, the association alleged that, while investigating the story, the reporter made defamatory statements to potential students, former students, parents of potential and former students, an employee of a state agency responsible for licensing a member school, and a Utah attorney who had filed numerous suits against plaintiff. At the time of the contacts, these individuals were located in Alaska, North Carolina, South Carolina, and California.

Discussion

The association asserts that, under Utah's long-arm statute, the court was authorized to exercise specific jurisdiction over Mr. Houlahan because the alleged acts caused injury in Utah: harm to the association's sole source of funding – the dues paid by member schools. See Utah Code Ann. § 78-27-24.1

"This Court reviews the district court's ruling on personal jurisdiction de novo." Bell Helicopter Textron, Inc. v. Heliqwest Intern., Ltd., 385 F.3d 1291, 1296 (10th Cir. 2004). "The burden of establishing personal jurisdiction over the defendant is on the plaintiff." Id. at 1295. Where, as here, "the evidence presented on the motion to dismiss consists of affidavits and other written materials the plaintiff need only make a prima facie showing. The district court must resolve all factual disputes in favor of the plaintiff." Id. (citations omitted).

The Utah Long-Arm statute is to be "applied so as to assert jurisdiction over nonresident defendants to the fullest extent permitted by the due process clause." Utah Code Ann. § 78-27-22. And to satisfy the constitutional requirement of due process there must be "'minimum contacts' between the defendant and the forum State." World-Wide Volkswagen Co. v. Woodson, 444 U.S. 286, 291 (1980) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). "When the 'defendant has purposely directed his activities at residents of the forum,' courts in that state may exercise specific jurisdiction in cases that 'arise out of or relate to those activities.'" Bell Helicopter Textron, 385 F.3d at 1296 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-73 (1985) (further quotations omitted)).

To support specific jurisdiction, there must be "some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253 (1958); see also Fidelity and Cas. Co. of N.Y. v. Phila. Resins Corp., 766 F.2d 440, 445 (10th Cir. 1985) (quoting Hanson, 357 U.S. at 253). The requirement of "purposeful availment" rules out personal jurisdiction as the result of "random, fortuitous, or attenuated contacts." Burger King, 471 U.S. at 475 (further quotation omitted). In the instant case, the district court correctly determined that the record lacked any evidence of the requisite purposeful availment.

Plaintiff also asserts that the court abused its discretion by denying limited discovery designed to uncover the publication of defamatory comments in Utah. See Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446, 458 (3rd Cir. 2003) (determining that district court erred in denying plaintiff's "specific, non-
frivolous," and "reasonable" request for jurisdictional discovery, in order to "help determine whether jurisdiction exists under the federal long-arm statute"). Plaintiff apparently made a general request for discovery in its response to defendant's dismissal motion. In the absence of an explicit, supported motion for discovery, this court cannot say that the district court abused its discretion in denying the request.

Appellant's motion to file a reply brief out of time and motion to resubmit reply with proper address are GRANTED. The judgment of the district court is AFFIRMED.

Entered for the Court

Robert H. Henry

Circuit Judge