NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

MARK MCCORMICK, Plaintiff/Appellant,

v.

THE MULTISTATE LOTTERY, et al., Defendants/Appellees.

No. 1 CA-CV 23-0497

Appeal from the Superior Court in Maricopa County

No. CV2022-053274

The Honorable Michael D. Gordon, Judge

AFFIRMED

COUNSEL

Mark McCormick, Phoenix

Plaintiff/Appellant

Dorsey & Whitney LLP, Phoenix

By W. Scott Jenkins, Jr., Brittany Gilbertson, & Madison Burr

Counsel for Defendant/Appellee Multi-State Lottery Association

Burch & Cracchiolo PA, Phoenix

By Juliana Lauria

Counsel for Defendant/Appellee QuikTrip

FILED 3-26-2024
MCCORMICK v. THE MULTISTATE LOTTERY et al.

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which 

Judge Maria Elena Cruz and Judge Cynthia J. Bailey joined.

M c M U R D I E, Judge:

¶1 Mark McCormick appeals the superior court’s judgment

dismissing all claims against the Multistate Lottery (“Lottery”) and 

QuikTrip with prejudice. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 McCormick filed a complaint seeking damages exceeding $6 

billion from Lottery, QuikTrip, and the Arizona Lottery. He alleged the 

defendants unlawfully tracked him to monitor his lottery ticket purchases

so they would know in advance from which retailers he would buy tickets 

to prevent him from winning the lottery.

¶3 McCormick alleged the Arizona Lottery and Lottery

conducted a Powerball drawing on April 9, 2022, but forged the game by 

placing McCormick’s “winning ticket” in the computer as a “losing ticket,”

preventing his win via a jackpot rollover. He also alleged that QuikTrip 

agreed in advance to be the designated “rigging house” for a preplanned 

drawing on April 27, 2022, in which a “nonexistent fictitious married 

Gilbert couple” won. McCormick alleged the defendants agreed in advance 

to lie to the public and then fraudulently reported that the Gilbert couple 

came forward and claimed the $473.1 million jackpot. McCormick also 

alleged wrongdoing against the Arizona Lottery, asserting that it

fraudulently announced unclaimed and expired tickets for a $1 million 

prize for a March 5, 2022 Powerball drawing and a $3.9 million prize for an

April 27, 2022 Quick Pick drawing. McCormick pled conversion, consumer 

fraud, forgery, and intentional infliction of emotional distress.

¶4 The superior court dismissed with prejudice the claims 

against the Arizona Lottery based on McCormick’s failure to comply with 

A.R.S. § 12-821.01.

¶5 The superior court also found McCormick failed to state a 

claim against QuikTrip on all four claims. The court determined

McCormick failed to state a claim for conversion and consumer fraud 
MCCORMICK v. THE MULTISTATE LOTTERY et al.

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because he failed to allege he bought tickets that could have been converted 

or considered “merchandise” that would subject the defendants to liability 

under the Arizona Consumer Fraud Act, see A.R.S. §§ 44-1521 to 44-1534.

The court determined that McCormick cited no authority for a private civil 

case based on forgery and that the complaint failed to meet the heightened 

pleading requirements of Arizona Rule of Civil Procedure (“Rule”) 9(b) to

support a private cause of action for common law fraud, which might 

encompass forgery. The court concluded the complaint failed to allege the 

elements necessary to establish a claim for intentional infliction of 

emotional distress. Despite these failures, the court was inclined to allow 

McCormick to amend his complaint.

¶6 McCormick moved for leave to amend and submitted a

proposed amended complaint. Upon review of the amended complaint, the 

court again found that McCormick failed to state a claim against QuikTrip.

Although McCormick’s proposed amended complaint alleged the purchase 

of lottery tickets, the court found he “[did] not and cannot allege [the]

lottery tickets were converted because he has no possessory right to the 

funds.” See Autoville, Inc. v. Friedman, 20 Ariz. App. 89, 91-93 (1973). The

court also found McCormick failed to adequately allege any 

misrepresentations, concealment, or omissions to support the fraud and 

forgery claims. Finally, the court again concluded the complaint failed to 

allege extreme and outrageous acts sufficient to state a claim for intentional 

infliction of emotional distress. Thus, the court denied McCormick’s motion 

for leave to file an amended complaint and denied him leave to file a second 

motion for leave to file an amended complaint.

¶7 After reviewing Lottery’s motion to dismiss for lack of 

personal jurisdiction with a supporting affidavit written by Lottery’s 

deputy executive director, the superior court dismissed all claims against 

Lottery. The affidavit noted that Lottery, which developed the Powerball 

game, is an unincorporated Iowa non-profit association that does not have 

any offices, employees, or agents for service of process in Arizona, nor does 

it sell lottery tickets or conduct any other business in the state.

¶8 The superior court entered final judgments under Rule 54(c). 

McCormick appealed, and we have jurisdiction under A.R.S. 

§ 12-2101(A)(1).
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DISCUSSION1

A. This Court Lacks Jurisdiction to Consider the Judgment for the 

Arizona Lottery.

¶9 McCormick raises the constitutionality of A.R.S. § 12-821.01. 

Any argument about the statute is necessarily directed to the Arizona 

Lottery, whose judgment McCormick did not appeal. Thus, this court lacks 

jurisdiction over the issues. See ARCAP 9(a); In re Marriage of Thorn, 235 

Ariz. 216, 218, ¶ 5 (App. 2014).

B. The Superior Court Correctly Granted QuikTrip’s Motion to 

Dismiss.

¶10 We review the dismissal of a complaint for the failure to state 

a claim de novo. Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶¶ 1, 7 (2012). On 

appeal, McCormick argues that legal arguments made by attorneys in 

motion practice are insufficient to grant a motion to dismiss.

¶11 In response to QuikTrip’s motion to dismiss, McCormick 

stated the correct standard that a claim must be dismissed when a plaintiff 

is not entitled to relief under any interpretation of the facts. See Coleman, 230 

Ariz. at 356, ¶ 8. Still, he developed no substantive argument that his 

allegations correctly set forth a claim, even if true. Instead, he argued that 

he should be permitted the opportunity to conduct discovery and gather 

additional evidence to support his claims. His argument shows he

misunderstands the nature of a complaint as a vehicle to permit a plaintiff

to move forward and attempt to prove his case. See id. at 363, ¶ 46 (The 

question presented by a motion to dismiss for failure to state a claim is 

whether the facts as alleged in a complaint are enough to “warrant allowing 

the [plaintiff] to attempt to prove [its] case.”).

¶12 We have reviewed the complaint allegations and determined

that McCormick’s complaint failed to state a claim. The court did not abuse 

its discretion by denying McCormick’s motion for leave to file an amended 

complaint based on futility grounds. See MacCollum v. Perkinson, 185 Ariz. 

179, 185 (App. 1996).

1 We deny QuikTrip’s request to dismiss McCormick’s appeal for 

failure to comply with ARCAP 13. Although McCormick’s briefs are 

deficient and his arguments difficult to discern, we address them as best we 

can.
MCCORMICK v. THE MULTISTATE LOTTERY et al.

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C. The Superior Court Correctly Dismissed Lottery for Lack of 

Personal Jurisdiction.

¶13 McCormick challenges the superior court’s dismissal of 

Lottery for lack of personal jurisdiction. We review a dismissal based on a 

lack of personal jurisdiction de novo. Bohreer v. Erie Ins. Exch., 216 Ariz. 208, 

211, ¶ 7 (App. 2007).

¶14 In its ruling dismissing the claims against Lottery for lack of 

personal jurisdiction, the superior court considered the affidavit attached 

to Lottery’s motion to dismiss written by the deputy executive director 

declaring Lottery’s lack of contacts in Arizona. As much as McCormick 

argues the court improperly considered matters outside the pleadings 

when deciding Lottery’s motion to dismiss for lack of personal jurisdiction, 

McCormick failed to raise this issue in his response and thus waived it. See 

ADP, LLC v. Ariz. Dep’t of Revenue, 254 Ariz. 417, 425, ¶ 25 (App. 2023). 

Moreover, the court may consider documents outside the complaint in its 

ruling. See Bohreer, 216 Ariz. at 210, ¶ 1, n.1 (Appellate review “is not altered 

by the parties having filed documents outside of the complaint and the 

superior court having appeared to consider those documents in its 

ruling.”); MacPherson v. Taglione, 158 Ariz. 309, 312 (App. 1988) (The 

superior court’s review of affidavits and pleadings in analyzing personal 

jurisdiction issues is permitted.).

¶15 McCormick argues the superior court can exercise general or 

specific jurisdiction over Lottery. He concludes Lottery committed acts 

purposefully directed2 at Arizona with intent to cause harm. He argues 

Lottery has “quality contacts consistently in Arizona” and cites Lottery’s

weekly receipt of a portion of member ticket sales to fund game prize pools.

¶16 A non-resident defendant is subject to general jurisdiction 

when its contacts with the forum state are sufficiently “continuous and 

systematic” such that it may be haled into the forum court even for claims 

2 McCormick argues in his reply brief that the superior court erred by 

using the “purposeful availment” test instead of the “purposeful direction”

test, a difference with no distinction for purposes of this appeal. See Plan.

Grp. of Scottsdale, L.L.C. v. Lake Mathews Min. Props., Ltd., 226 Ariz. 262, 

266-68, ¶¶ 18-25 (2011) (The court rejected the distinction between the two 

tests as applied to contract or tort claims and focused the 

specific-jurisdiction inquiry on “purposeful conduct” directed toward the 

state.).
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unrelated to its contacts in the forum. See Helicopteros Nacionales de Colombia,

S.A. v. Hall, 466 U.S. 408, 414-16 (1984). The activities McCormick relies on 

do not amount to sufficient contacts for the superior court to assert general 

jurisdiction over Lottery. See id. at 418 (“[M]ere purchases, even if occurring 

at regular intervals, are not enough to warrant a State’s assertion” of general 

jurisdiction.); Rollin v. William V. Frankel & Co., 196 Ariz. 350, 352-53, ¶¶ 9-12 

(App. 2000) (There was no general jurisdiction over a non-resident 

defendant who conducted $14 million in trades with broker-dealers in 

Arizona.).

¶17 And nothing in Lottery’s affidavit supports the exercise of 

specific jurisdiction. Any contacts cited have no nexus with McCormick’s 

causes of action. See Shaffer v. Heitner, 433 U.S. 186, 204 (1977) (The specific 

jurisdiction inquiry focuses on the “relationship among the defendant, the 

forum, and the litigation.”); Plan. Grp. of Scottsdale, L.L.C. v. Lake Mathews

Min. Props., Ltd., 226 Ariz. 262, 266, ¶ 16 (2011) (Contacts “not directly 

related to the asserted cause of action, cannot sustain the exercise of specific 

jurisdiction.”). The only contacts that could support the exercise of specific 

jurisdiction are the alleged wrongful acts, for which McCormick has 

provided no supporting evidence. McCormick’s conclusory allegations of 

Lottery’s misconduct cannot support the exercise of specific jurisdiction. See

MacPherson, 158 Ariz. at 311-12.

D. McCormick Failed to Allege Judicial Misconduct.

¶18 McCormick requests we vacate the superior court’s judgment 

because two judges were “removed” from the case, which McCormick 

argues is evidence of judicial fraud and abuse of the court’s machinery. 

McCormick develops no argument about judicial misconduct or abuse in 

court proceedings. McCormick also argues the superior court should have

summarily granted his motion for leave to file an amended complaint 

under Rule 7.1(b)(2) because the defendants failed to respond. He also

argues the court’s subsequent order permitting the defendants more time 

to respond violated his constitutional rights. But Rule 7.1(b)(2) is 

permissive, and the superior court appropriately denies leave to amend in 

futility cases. See ELM Ret. Ctr., LP v. Callaway, 226 Ariz. 287, 292, ¶ 26 (App. 

2010). McCormick develops no constitutional argument.
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CONCLUSION

¶19 We affirm. We award costs to Lottery and QuikTrip upon 

compliance with ARCAP 21.