FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID MENKEN, 

Plaintiff-Appellant,

v. No. 05-16467

GERRY F. EMM and MAXINE C. D.C. No.

EMM; COLDWELL BANKER ITILDO,  CV-04-0598-PHXINC.; MARSHA L. TOMERLIN and MHM

JOHN DOE TOMERLIN; DAVID J. OPINION MORANDI and JANE DOE MORANDI;

SCARPELLO, HUSS & OSHINSKI, LTD.,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Arizona

Mary H. Murguia, District Judge, Presiding

Argued and Submitted

June 12, 2007—San Francisco, California

Filed September 19, 2007

Before: Jay S. Bybee and Milan D. Smith, Jr.,

Circuit Judges, and J. Michael Seabright,* District Judge.

Opinion by Judge Seabright;

Partial Concurrence and Partial Dissent by Judge Bybee

*The Honorable J. Michael Seabright, United States District Judge for

the District of Hawaii, sitting by designation. 

12629
COUNSEL

John Derrick, Law Office of John Derrick, Santa Barbara,

California, for the plaintiff-appellant. 

Vincent M. Creta, Hammerman & Hultgren, Phoenix, Arizona, for the defendants-appellees. 

OPINION

SEABRIGHT, District Judge: 

On December 12, 2003, Plaintiff-Appellant David Menken

(“Menken”) filed a Complaint in Arizona state court alleging

negligence, interference with contractual relations, civil extortion, and a violation of Arizona Revised Statutes (“A.R.S.”)

§ 33-420. Defendant-Appellee Tomerlin removed the case

(based on diversity of citizenship) to the United States District

Court for the District of Arizona on March 24, 2004.1 The district court dismissed for lack of personal jurisdiction. 

1The Complaint names several defendants; on appeal, Menken is pursuing his case against only Marsha Tomerlin, her husband John Doe Tomerlin, and Coldwell Banker Itildo, Inc. (collectively, “Tomerlin”). Marsha

Tomerlin, a Nevada resident, is President of Coldwell Banker Itildo, Inc.,

a Nevada corporation with its lone office in Minden, Nevada. 

MENKEN v. EMM 12633
Because we conclude that Tomerlin had sufficient contacts

with the State of Arizona to warrant the exercise of personal

jurisdiction, we reverse the judgment of the district court.

I.

In his Complaint, Menken alleges that Tomerlin obtained a

judgment against Menken in a case arising out of the United

States District Court for the District of Nevada (CV-N-96-

00142). In 1998, Tomerlin (along with other judgment creditors) obtained a judgment against Menken for attorneys’ fees

and costs totaling $29,883.63. Menken never satisfied the

judgment. Between 1998 and 2003, Tomerlin incurred

expenses and legal fees attempting to locate Menken and his

assets. On May 1, 2003, the judgment creditors recorded the

Nevada judgment against Menken in Maricopa County, Arizona and established a lien on Menken’s home there. 

Menken alleges that Tomerlin then attempted to use the

lien as leverage to extract more money from Menken than was

due under the Nevada judgment. On August 22, 2003, Tomerlin’s Nevada attorney wrote to Menken’s agent in Arizona

with a payoff demand for the judgment ($29,883.63) and

post-judgment interest ($13,361.05), as well as costs and legal

fees accrued attempting to locate Menken ($36,740.52), for a

total demand of $79,985.20. Menken’s attorney responded to

the payoff demand by letter dated September 2, 2003, claiming the amount was too high and that Menken did not have to

pay the post-judgment costs and legal fees. Tomerlin then

rejected Menken’s proposal to pay the judgment and interest,

but not the post-judgment costs and legal fees, in a September

15, 2003 letter. Menken’s counsel wrote to Tomerlin’s attorney on October 23, 2003 advising that Menken had a pending

offer from a buyer to purchase his home in Maricopa County,

but could not complete the sale while Tomerlin’s lien was in

place. Menken’s counsel wrote again on November 11, 2003,

requesting that Tomerlin release the judgment lien. The lien

12634 MENKEN v. EMM
was not released and, according to Menken, the sale of his

home fell through. 

Menken filed a Complaint on December 12, 2003 in Arizona state court, later removed to the United States District

Court for the District of Arizona, alleging negligence, interference with contractual relations, civil extortion, and a violation of A.R.S. § 33-420.2

 On January 27, 2005, the district

court granted Tomerlin’s motion to dismiss for lack of personal jurisdiction. 

Following the issuance of the January 27, 2005 Order, no

separate entry of judgment was filed. Instead, on February 11,

2005, Menken filed a “Motion to Retain In Rem Jurisdiction

Over Count Four Relating to A. R. S. § 33-420.” At the June

24, 2005 hearing on the motion, Menken orally moved to

amend the Complaint. On June 29, 2005, the district court

entered an order denying Menken’s motion to retain in rem

jurisdiction and denying his motion to amend the Complaint.

A separate document entering final judgment was filed on

2A.R.S. § 33-420 states in part: 

A. A person purporting to claim an interest in, or a lien or encumbrance against, real property, who causes a document asserting

such claim to be recorded in the office of the county recorder,

knowing or having reason to know that the document is forged,

groundless, contains a material misstatement or false claim or is

otherwise invalid is liable to the owner or beneficial title holder

of the real property for the sum of not less than five thousand dollars, or for treble the actual damages caused by the recording,

whichever is greater, and reasonable attorney fees and costs of

the action. 

B. The owner or beneficial title holder of the real property may

bring an action pursuant to this section in the superior court in the

county in which the real property is located for such relief as is

required to immediately clear title to the real property as provided

for in the rules of procedure for special actions. This special

action may be brought based on the ground that the lien is forged,

groundless, contains a material misstatement or false claim or is

otherwise invalid[.] 

MENKEN v. EMM 12635
June 29, 2005. Menken filed his notice of appeal on July 22,

2005. 

On appeal, Menken argues that the district court erred in

finding that it did not have personal jurisdiction over Tomerlin; denying his motion to retain in rem jurisdiction; and denying his motion to amend the Complaint. Tomerlin challenges

the timeliness of Menken’s notice of appeal. 

II.

[1] We first address Tomerlin’s argument that Menken’s

appeal is untimely. A notice of appeal “must be filed with the

district clerk within 30 days after the judgment or order

appealed from is entered.” Fed. R. App. P. 4(a)(1)(A). A judgment or order is entered as follows:

(i) if Federal Rule of Civil Procedure 58(a)(1) does

not require a separate document, when the judgment

or order is entered in the civil docket under Federal

Rule of Civil Procedure 79(a); or

(ii) if Federal Rule of Civil Procedure 58(a)(1)

requires a separate document, when the judgment or

order is entered in the civil docket under Federal

Rule of Civil Procedure 79(a) and when the earlier

of these events occurs:

• the judgment or order is set forth on a separate document, or 

• 150 days have run from entry of the judgment or order in the civil docket under Federal Rule of Civil Procedure 79(a). 

Fed. R. App. P. 4(a)(7). Federal Rule of Civil Procedure

58(a)(1) requires the January 27, 2005 Order to be set forth

in a separate document. See Fed. R. Civ. P. 58(a)(1) (“Every

12636 MENKEN v. EMM
judgment and amended judgment must be set forth on a separate document,” except for orders disposing of motions which

are not applicable here). Therefore, the 30-day appeals window to file a notice of appeal began to run when the judgment

or order was entered in the civil docket under Federal Rule of

Civil Procedure 79(a)3 and when the earlier of these two

events occurred: (1) the judgment or order was set forth on a

separate document, or (2) 150 days had run from entry of the

judgment or order in the civil docket. 

[2] No separate document was entered following the January 27, 2005 Order. The parties agree that at the time the

judgment was entered, more than 150 days had run from entry

of the January 27, 2005 Order; that is, 153 days ran from the

date of the January 27, 2005 Order and the June 29, 2005

entry of judgment. 

[3] The parties dispute the window of time for filing a

notice of appeal with respect to a judgment entered by operation of Federal Rule of Appellate Procedure 4(a)(7), when

more than 150 days have run from entry of the judgment or

order in the civil docket. Tomerlin argues that if more than

150 days have passed from the entry of the order, the time to

appeal that order has expired. Menken correctly asserts that

under Federal Rule of Appellate Procedure 4(a)(7)’s plain language, judgment was entered after 150 days, which then

3Federal Rule of Civil Procedure 79(a) states in pertinent part: 

All papers filed with the clerk, all process issued and returns

made thereon, all appearances, orders, verdicts, and judgments

shall be entered chronologically in the civil docket on the folio

assigned to the action and shall be marked with its file number.

These entries shall be brief but shall show the nature of each

paper filed or writ issued and the substance of each order or judgment of the court and of the returns showing execution of process. The entry of an order or judgment shall show the date the

entry is made. When in an action trial by jury has been properly

demanded or ordered the clerk shall enter the word “jury” on the

folio assigned to that action. 

MENKEN v. EMM 12637
started the Federal Rule of Appellate Procedure 4(a)(1)(A)

30-day appeals period. In other words, Menken had 180 days

(150 days plus 30 days) from entry of the order on January

27, 2005 in which to appeal. 

[4] Menken filed his notice of appeal on July 22, 2005,

which is 176 days from the entry of the January 27, 2005

Order. Menken’s notice of appeal is therefore timely.

III.

A. Standard of Review

We review the district court’s decision to dismiss for lack

of personal jurisdiction de novo. See Pebble Beach Co. v.

Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006). When a defendant moves to dismiss for lack of personal jurisdiction, the

plaintiff bears the burden of demonstrating that the court has

jurisdiction over the defendant. See Harris Rutsky & Co. Ins.

Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1128-29

(9th Cir. 2003). However, this showing requires that the plaintiff “make only a prima facie showing of jurisdictional facts

to withstand the motion to dismiss.” Doe v. Unocal Corp.,

248 F.3d 915, 922 (9th Cir. 2001) (internal citations omitted).

Although the plaintiff cannot “simply rest on the bare allegations of its complaint,” Schwarzenegger v. Fred Martin Motor

Co., 374 F.3d 797, 800 (9th Cir. 2004) (quoting Amba Mktg.

Sys., Inc. v. Jobar Int’l, Inc., 551 F.2d 784, 787 (9th Cir.

1977)), uncontroverted allegations in the complaint must be

taken as true. Id. (citing AT & T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996)). The court resolves all

disputed facts in favor of the plaintiff. Pebble Beach Co., 453

F.3d at 1154. 

B. Legal Framework for Personal Jurisdiction Analysis

We first outline the legal framework for our personal jurisdiction analysis. 

12638 MENKEN v. EMM
When no federal statute specifically defines the

extent of personal jurisdiction, we look to the law of

the state where the district court sits — in this case,

Arizona. Arizona’s long-arm rule permits the exercise of personal jurisdiction to the extent allowed by

the due process clause of the United States Constitution.

CE Distrib., LLC v. New Sensor Corp., 380 F.3d 1107, 1110

(9th Cir. 2004) (internal citations and quotation signals omitted). 

[5] A court may exercise personal jurisdiction over a defendant consistent with due process only if he or she has “certain

minimum contacts” with the relevant forum “such that the

maintenance of the suit does not offend ‘traditional notions of

fair play and substantial justice.’ ” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311

U.S. 457, 463 (1940)). Unless a defendant’s contacts with a

forum are so substantial, continuous, and systematic that the

defendant can be deemed to be “present” in that forum for all

purposes, a forum may exercise only “specific” jurisdiction

— that is, jurisdiction based on the relationship between the

defendant’s forum contacts and plaintiff’s claims. The parties

agree that general jurisdiction does not exist here; only specific jurisdiction is at issue. 

We analyze specific jurisdiction according to a three-prong

test:

(1) The non-resident defendant must purposefully

direct his activities or consummate some transaction

with the forum or resident thereof; or perform some

act by which he purposefully avails himself of the

privilege of conducting activities in the forum,

thereby invoking the benefits and protections of its

laws; 

MENKEN v. EMM 12639
(2) the claim must be one which arises out of or

relates to the defendant’s forum-related activities;

and

(3) the exercise of jurisdiction must comport with

fair play and substantial justice, i.e. it must be reasonable. 

Schwarzenegger, 374 F.3d at 802 (quoting Lake v. Lake, 817

F.2d 1416, 1421 (9th Cir. 1987)). “The plaintiff bears the burden of satisfying the first two prongs of the test. If the plaintiff fails to satisfy either of these prongs, personal jurisdiction

is not established in the forum state.” Id. (internal citation

omitted). On the other hand, if the plaintiff succeeds in satisfying both of the first two prongs, “the burden then shifts to

the defendant to ‘present a compelling case’ that the exercise

of jurisdiction would not be reasonable.” Id. (quoting Burger

King Corp. v. Rudzewicz, 471 U.S. 462, 476-78 (1985)). 

[6] We next elaborate on the three prongs of our personal

jurisdiction analysis: (1) purposeful availment and direction;

(2) forum-related conduct; and (3) reasonableness. 

1. Purposeful Availment and Direction

[7] The proper application of the first prong is contested in

this case. This prong “includes both purposeful availment and

purposeful direction. It may be satisfied by purposeful availment of the privilege of doing business in the forum; by purposeful direction of activities at the forum; or by some

combination thereof.” Yahoo! Inc. v. La Ligue Contre Le

Racisme Et L’Antisemitisme, 433 F.3d 1199, 1206 (9th Cir.

2006) (en banc). Yahoo! Inc. outlined the contours of purposeful availment and direction in tort and contract cases: 

We have typically treated “purposeful availment”

somewhat differently in tort and contract cases. In

tort cases, we typically inquire whether a defendant

12640 MENKEN v. EMM
“purposefully directs his activities” at the forum

state, applying an “effects” test that focuses on the

forum in which the defendant’s actions were felt,

whether or not the actions themselves occurred

within the forum. See Schwarzenegger, 374 F.3d at

803 (citing Calder v. Jones, 465 U.S. 783, 789-90,

104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984)). By contrast, in contract cases, we typically inquire whether

a defendant “purposefully avails itself of the privilege of conducting activities” or “consummates a

transaction” in the forum, focusing on activities such

as delivering goods or executing a contract. See

Schwarzenegger, 374 F.3d at 802. 

Id. (brackets omitted). 

Menken argues that the district court erred by failing to

employ the “effects test” for tort claims as set forth in Calder

v. Jones, 465 U.S. 783 (1984). In Calder, a California-based

entertainer sued for an allegedly defamatory article published

by defendants. The article had been written and edited in Florida, and the defendants had few contacts with California. The

Court upheld the exercise of personal jurisdiction in California because the defendants knew that the article would have

an effect there. Calder held that the defendants had not

engaged in “mere untargeted negligence”; rather, their “intentional, and allegedly tortious, actions were expressly aimed at

California.” Calder, 465 U.S. at 789 (brackets omitted). 

[8] We construe Calder’s effects test to impose three

requirements: “the defendant allegedly must have (1) committed an intentional act, (2) expressly aimed at the forum state,

(3) causing harm that the defendant knows is likely to be suffered in the forum state.” Yahoo! Inc., 433 F.3d at 1206. 

In a specific jurisdiction inquiry, we consider the extent of

the defendant’s contacts with the forum and the degree to

which the plaintiff’s suit is related to those contacts. “A

MENKEN v. EMM 12641
strong showing on one axis will permit a lesser showing on

the other. A single forum state contact can support jurisdiction

if the cause of action arises out of that particular purposeful

contact of the defendant with the forum state.” Id. at 1210

(internal citation, quotation signals, ellipses, and brackets

omitted). 

2. Forum-Related Conduct

Under the second prong of our personal jurisdiction analysis, the plaintiff’s claim must be one which arises out of or

relates to the defendant’s forum-related activities. In determining whether Menken’s claims arise out of Tomerlin’s

forum-related conduct, “the Ninth Circuit follows the ‘but for’

test.” Myers v. Bennett Law Offices, 238 F.3d 1068, 1075 (9th

Cir. 2001). Hence, Menken must show that he would not have

suffered an injury “but for” Tomerlin’s forum-related conduct. 

3. Reasonableness

The third prong examines whether the exercise of the jurisdiction would be reasonable.

We consider the following seven factors when making this determination: (1) the extent of the defendants’ purposeful interjection into the forum state’s

affairs; (2) the burden on the defendant of defending

in the forum; (3) the extent of conflict with the sovereignty of the defendants’ state; (4) the forum

state’s interest in adjudicating the dispute; (5) the

most efficient judicial resolution of the controversy;

(6) the importance of the forum to the plaintiff’s

interest in convenient and effective relief; and (7) the

existence of an alternative forum. 

CE Distrib., 380 F.3d at 1112 (internal citation omitted). 

12642 MENKEN v. EMM
With this framework in mind, we turn to Menken’s claims

against Tomerlin.4

IV.

A. Purposeful Availment and Direction: The “Effects

Test”

[9] The district court recited our three-prong test for personal jurisdiction, but did not clearly indicate that it was

employing the “effects test” as to the first prong. Because

Menken’s Complaint alleges negligence, wrongful interference with contractual relations, civil extortion, and a violation

of A.R.S. § 33-420, his cause of action arises primarily in tort;

therefore, Calder’s “effect’s test” is the proper framework for

the first prong’s purposeful availment and direction analysis.

Under this analysis, Menken has alleged sufficient facts to

satisfy the three requirements of the “effects test.” The court

addresses each of the test’s three elements in turn.

4Tomerlin claims that Menken waived the application of the personal

jurisdiction “effects test” on appeal because he did not raise it before the

district court. We disagree and conclude that Menken sufficiently raised

the issue below for the district court to rule on it. See Arizona v. Components Inc., 66 F.3d 213, 217 (9th Cir. 1995) (“Although there is no brightline rule to determine whether a matter has been raised below, a workable

standard is that the argument must be raised sufficiently for the trial court

to rule on it.”) (citation, quotation signals, and ellipses omitted). For

example, Menken urged the district court to apply the Ninth Circuit’s personal jurisdiction analysis set forth in Myers v. Bennett Law Offices, 238

F.3d 1068 (9th Cir. 2001). See Pl’s. Resp. to Defs.’ Mot. to Dismiss for

Lack of Personal Jurisdiction at 3. Myers sets forth the “effects test” for

personal jurisdiction analysis. See 238 F.3d at 1072 (“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, 104 S. Ct. 1482, 79 L. Ed.2d 804

(1984).”) (brackets omitted). Because Menken sufficiently raised the issue

below for the district court to rule on it, he has not waived his argument

that the “effects test” is the applicable framework for our personal jurisdiction analysis. 

MENKEN v. EMM 12643
1. Intentional Act

[10] Menken alleges that Tomerlin “committed an intentional act” by intentionally interfering with his contractual

relation with a third party for the pending sale of his property;

that Tomerlin demanded a sum of money in excess of the lawful amount due under the judgment; and that Tomerlin intentionally violated A.R.S. § 33-420 by recording an invalid lien.

2. Expressly Aimed at Arizona

[11] Second, Menken alleges that Tomerlin’s intentional

conduct was expressly aimed at the forum state because the

act of “trying to extract the judgment payoff” was aimed at

tying up Menken’s real property located in Arizona. 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.” Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1111 (9th

Cir. 2002) (internal citation and quotation signals omitted).

Menken sufficiently alleges that Tomerlin engaged in wrongful conduct targeted at Menken, whom Tomerlin knew to be

a resident of Arizona. 

3. Causing Harm Tomerlin Knew Would be Suffered in

Arizona

[12] Finally, Menken alleged that the action caused harm

that Tomerlin knew was likely to be suffered in Arizona. The

Complaint alleges that Menken told Tomerlin that title to his

Arizona property was clouded by the allegedly invalid judgment lien and that he could not sell the property with the lien

in place. When Tomerlin improperly recorded the lien in Arizona and then refused to accept the legally owed amount as

full satisfaction of the lien, Tomerlin caused harm knowing

that it would be suffered in Arizona. 

12644 MENKEN v. EMM
[13] Menken has sufficiently alleged the three requirements

of the “effects test” and has met his burden as to the first

prong. 

B. Forum-Related Conduct

[14] The second prong of the analysis is easily met.

Menken alleges that he would not have suffered an injury “but

for” Tomerlin’s forum-related conduct. Assuming Menken’s

allegations as true, Menken was unable to close on the sale of

his Arizona property because Tomerlin recorded the lien on

the property, demanded a sum in excess of that lawfully due

under the Nevada judgment, and refused to remove the lien.

Menken’s tort claims arise out of Tomerlin’s demand for an

amount greater than awarded by the Nevada judgment in Arizona. 

[15] Although Tomerlin’s alleged contacts with Arizona

are not extensive, a “single forum state contact can support

jurisdiction if the cause of action arises out of that particular

purposeful contact of the defendant with the forum state.”

Yahoo! Inc., 433 F.3d at 1210 (internal citation, quotation signals, and ellipses omitted). Menken has satisfied the first two

prongs; the burden thus shifts to Tomerlin to show that the

exercise of jurisdiction would not be reasonable. 

C. Reasonableness

We next balance the seven reasonableness factors: 

(1) the extent of the defendant’s purposeful interjection into the forum state’s affairs; (2) the burden on

the defendant of defending in the forum; (3) the

extent of conflict with the sovereignty of the defendants’ state; (4) the forum state’s interest in adjudicating the dispute; (5) the most efficient judicial

resolution of the controversy; (6) the importance of

the forum to the plaintiff’s interest in convenient and

MENKEN v. EMM 12645
effective relief; and (7) the existence of an alternative forum. 

CE Distrib., 380 F.3d at 1112 (citation omitted). 

[16] First, Tomerlin argues there was no purposeful interjection because the dispute originated in Nevada, where

Menken failed to satisfy the judgment against him, and that

Tomerlin has no past or ongoing connection with Arizona.

Menken disagrees and argues that the issue of whether

Tomerlin has a valid Nevada judgment is not in dispute;

rather, the genesis of the dispute is the action that Tomerlin

took in Arizona: improperly demanding payment in excess of

the judgment and tying up Menken’s Arizona property in

order to extract more than the amount of the Nevada judgment. Tomerlin’s counsel sent several letters to Menken

regarding the payoff amount after recording the judgment in

Maricopa County, but it is unclear the extent to which these

actions involve the “forum state’s affairs.” On balance, the

extent of Tomerlin’s purposeful interjection into Arizona’s

affairs is neither particularly great, nor de minimis. This factor

appears to be neutral. 

[17] Second, Tomerlin argues she would be unfairly burdened by having to defend against the case in Arizona

because she does not regularly travel to Arizona, visiting once

every three years, and that it would be inconvenient and

expensive to litigate in Arizona. Menken argues that it is not

especially burdensome because Arizona borders Nevada,

Tomerlin’s counsel was admitted pro hac vice to conduct a

debtor’s examination of Menken, and that modern technology

and transportation mitigate any inconvenience to Tomerlin.

Undoubtably, it would be more burdensome for Tomerlin to

litigate in Arizona than in neighboring Nevada, where

Tomerlin resides and has her principal place of business.

“Nevertheless, with the advances in transportation and telecommunications and the increasing interstate practice of law,

any burden is substantially less than in days past.” CE Dis12646 MENKEN v. EMM
trib., 380 F.3d at 1112. Although the inconvenience does not

appear to be severely burdensome, this factor weighs slightly

in favor of Tomerlin. 

[18] Third, the parties agree that there is no conflict

between Nevada and Arizona regarding sovereignty. This factor weighs in favor of Menken. 

[19] Fourth, “Arizona has a strong interest in protecting its

residents from torts that cause injury within the state, and in

providing a forum for relief.” Brainerd v. Governors of the

Univ. of Alberta, 873 F.2d 1257, 1260 (9th Cir. 1989). This

factor weighs in favor of Menken. 

[20] The fifth factor concerns the efficiency of the forum.

“In evaluating this factor, we have looked primarily at where

the witnesses and the evidence are likely to be located.” CoreVent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1489 (9th Cir.

1993). Tomerlin argues that Nevada is more efficient because

Tomerlin, her corporation, and attorneys are all Nevada residents so that most of the party witnesses are Nevada residents.

Menken claims that all of the evidence and witnesses relating

to his damages (regarding the loss of sale of his home) are in

Arizona. Because witnesses are located in both Nevada and in

Arizona, neither forum has a clear efficiency advantage with

respect to witnesses. On the current record, it is difficult to

definitively determine whether Arizona would be the most

efficient forum for resolution of the dispute. On balance, this

factor is neutral. 

[21] The convenience and effectiveness of relief for the

plaintiff comprise the sixth factor. “[I]n this circuit, the plaintiff’s convenience is not of paramount importance.” Dole

Food Co., Inc. v. Watts, 303 F.3d 1104, 1116 (9th Cir. 2002).

Menken argues that Arizona may be the only forum that can

hear his claim regarding a violation of the Arizona statute,

A.R.S. § 33-420; therefore, he may not get effective relief in

MENKEN v. EMM 12647
another forum. Although this factor is not given much weight,

it favors Menken. 

[22] The seventh and final factor is availability of an alternate forum. Menken bears the burden of proving the unavailability of an alternative forum. Core-Vent Corp., 11 F.3d at

1490. Menken argues that his fourth cause of action, a violation of A.R.S. § 33-420, can only be brought in Arizona. The

statute reads in pertinent part:

The owner or beneficial title holder of the real property may bring an action pursuant to this section in

the superior court in the county in which the real

property is located for such relief as is required to

immediately clear title to the real property as provided for in the rules of procedure for special

actions. This special action may be brought based on

the ground that the lien is forged, groundless, contains a material misstatement or false claim or is otherwise invalid. 

A.R.S. § 33-420B (emphasis added). Assuming as true that

Menken asserted a claim to quiet title under § 33-420B, then

it appears there is no alternative forum for that portion of his

Complaint. 

[23] Weighing these seven considerations, the balance of

factors does not favor Tomerlin. Tomerlin has not presented

a compelling case that the exercise of jurisdiction would be

unreasonable. See Panavision Int’l, L.P. v. Toeppen, 141 F.3d

1316, 1324 (9th Cir. 1998) (“[W]e conclude that although

some factors weigh in [defendant’s] favor, he failed to present

a compelling case that the district court’s exercise of jurisdiction in California would be unreasonable.”); Caruth v. Int’l

Psychoanalytical Ass’n, 59 F.3d 126, 129 (9th Cir. 1995)

(“Neither party is clearly favored in the final balance. However, given the closeness of the factors, we conclude that

[defendant] has not presented a ‘compelling case’ that exer12648 MENKEN v. EMM
cising jurisdiction over it would be unreasonable.”). On balance, Tomerlin has not presented a compelling case that the

exercise of jurisdiction would not comport with fair play and

substantial justice and would thus be unreasonable. 

[24] We wish to emphasize what we are not holding: the

simple domestication of a foreign judgment in Arizona, standing alone, is unlikely sufficient to confer personal jurisdiction

on the judgment creditor. Tomerlin allegedly did more,

domesticating the judgment and then attempting to extract a

greater payment than that lawfully due under the Nevada

judgment. It is the alleged attempt to leverage a payment in

excess of that lawfully due that confers specific jurisdiction

over Tomerlin. 

V.

[25] With respect to Menken’s tort claims against Tomerlin, the district court had personal jurisdiction over Tomerlin.

Accordingly, we REVERSE the district court’s holding that it

lacked personal jurisdiction over Tomerlin and REMAND for

further proceedings consistent with this opinion.5

REVERSED AND REMANDED.

BYBEE, Circuit Judge, concurring in part and concurring in

the judgment: 

I fully agree with Judge Seabright’s opinion with respect to

the timeliness of Menken’s appeal. I also concur in the majority’s judgment with respect to personal jurisdiction: Menken

5Given our disposition on personal jurisdiction, we do not reach

Menken’s remaining issues on appeal, including his challenge to the

denial of his motions to retain in rem jurisdiction and to amend the Complaint. 

MENKEN v. EMM 12649
has alleged sufficient facts that, if true, show that Tomerlin

“ ‘purposefully directed’ [her] activities” at Menken in Arizona, and “the litigation results from alleged injuries that

‘arise out of or relate to’ those activities.” Burger King Corp.

v. Rudzewicz, 471 U.S. 462, 472 (1985) (quoting Keeton v.

Hustler Magazine, Inc., 465 U.S. 770, 774 (1984), and Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,

414 (1984)). To my mind, that should end the inquiry. 

I recognize that the Supreme Court has stated that “[o]nce

it has been decided that a defendant purposefully established

minimum contacts within the forum State, these contacts may

be considered in light of other factors to determine whether

the assertion of personal jurisdiction would comport with ‘fair

play and substantial justice,’ ” Burger King, 471 U.S. at 476

(quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 320

(1945)), and that the Court has listed several considerations.

These considerations, the Court said, “sometimes serve to

establish the reasonableness of jurisdiction upon a lesser

showing of minimum contacts than would otherwise be

required” and may also “defeat the reasonableness of jurisdiction even if the defendant has purposefully engaged in forum

activities.” Id. at 477. We have virtually codified these considerations into seven numbered “reasonableness” factors.

See, e.g., CE Distrib., LLC v. New Sensor Corp., 380 F.3d

1107, 1110 (9th Cir. 2004); Harris Rutsky & Co. Ins. Serv.,

Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1132 (9th Cir.

2003); Caruth v. Int’l Psychoanalytical Ass’n, 59 F.3d 126,

128-29 (9th Cir. 1995); Core-Vent Corp. v. Nobel Indus., 11

F.3d 1482, 1487-88 (9th Cir. 1993). Judge Seabright’s opinion faithfully considers each of these factors. 

My objection is that we can take up these “reasonableness”

factors only after we have already established that the defendant purposefully established minimum contacts with the

forum, and that the contacts are related to the cause of action.

I do not see how, having made this determination, the forum’s

exercise of personal jurisdiction over the defendant is subject

12650 MENKEN v. EMM
to defeasance just because we think that litigation in the

forum might be burdensome to the defendant, or that there

might be a more convenient forum, or that the forum might

not have as great an interest in resolving the litigation as some

other forum. None of these factors goes to the question of the

forum’s power over the defendant—the right to issue a judgment that is enforceable not only in the forum’s own courts,

but also in the courts of every other State. See U.S. CONST. art.

IV, § 1 (Full Faith and Credit Clause). 

These “reasonableness” factors are better suited to claims

of forum non conveniens, which is also based on “considerations of convenience, fairness, and judicial economy.” Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 127

S. Ct. 1184, 1187 (2007).1See 28 U.S.C. § 1404(a) (“For the

convenience of parties and witnesses, in the interest of justice,

a district court may transfer any civil action to any other district or division where it might have been brought.”). Indeed,

the seven reasonableness factors parallel the private and public interests that a district court must weigh when considering

a claim of forum non conveniens. See Piper Aircraft Co. v.

Reyno, 454 U.S. 235, 241 (1981); Gulf Oil Corp. v. Gilbert,

330 U.S. 501, 508-09 (1947).2

1The only case in which the Supreme Court has held that these factors

determined the question of personal jurisdiction was in a suit between two

foreign corporations in which the Court divided evenly over whether the

minimum contacts were sufficient. See Asahi Metal Indus. Co., Ltd. v.

Superior Court of California, 480 U.S. 102 (1987). The defendant might

just as easily have invoked forum non conveniens. See Sinochem Int’l Co.

Ltd. v. Malaysia Int’l Shipping Corp., 127 S. Ct. 1184 (2007); Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981). 

2Private factors in the forum non conveniens balancing test include:

“relative ease of access to sources of proof; availability of compulsory

process for attendance of unwilling, and the cost of obtaining attendance

of willing, witnesses; possibility of view of premises, if view would be

appropriate to the action; and all other practical problems that make trial

of a case easy, expeditious and inexpensive.” Gulf Oil Corp., 330 U.S. at

508. Public factors include: “administrative difficulties from court congesMENKEN v. EMM 12651
I recognize that I am swimming against the tide, but I

refuse to proceed without making my objections known. I

respectfully concur in the opinion in part, and I fully concur

in the judgment.

tion; the ‘local interest in having localized controversies decided at home’;

the interest in having the trial of a diversity case in a forum that is at home

with the law that must govern the action; the avoidance of unnecessary

problems in conflict of laws, or in the application of foreign law; and the

unfairness of burdening citizens in an unrelated forum with jury duty.”

Piper Aircraft Co., 454 U.S. at 241 (quoting Gulf Oil Corp., 330 U.S. at

509). 

12652 MENKEN v. EMM