Metropolitan News-Enterprise


Friday, January 12, 2018


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Ninth Circuit Skirts Issue of Jurisdiction In Action Over Sale of Riverboat


By a MetNews Staff Writer


The Ninth U.S. Circuit of Appeals—which one month ago held oral arguments centering on whether a string of emails, as well as texts and phone calls to and from a California corporation to a company in Alaska was sufficient to create jurisdiction here—yesterday left the issue of jurisdiction unexplored, saying no cause of action was stated.

The lawsuit was brought in U.S. District Court for the Northern District of California by Lil’ Man in the Boat, a California corporation headquartered in Daly City, against Auk Ta Shaa Discovery, a limited liability company in Juneau. The plaintiff claimed a deal was reached under which the Queen of Seattle, a steam-powered paddle-wheel boat docked near Seattle, would be sold to it for $12,500.

Judge Jon S. Tigar dismissed the action without leave to amend, declaring that “the Court concludes that it lacks personal jurisdiction over Defendant because Plaintiff has not satisfied its burden of showing that Defendant purposefully availed itself of the privilege of conducting activities in California.”

Telephone Conversation

According to Lil’ Man, its principal, San Francisco attorney Lawrence Dale Murray, had a telephone conversation with Auk Ta Shaa’s broker, in Florida, in which the broker offered the boat for $12,000; Murray said, “Great, I’m in for it”; the broker responded: “We’ve got a deal.” Written communications followed.

Tigar said that even if the broker’s conduct is attributable to the defendant, it was insufficient to create minimal contacts with California so as to vest a district court here with jurisdiction.

He also noted that the arrangement called for Murray to pick up the vessel in Washington,

“The Court thus concludes that the purported contract envisioned performance in Washington, not California,” Tigar wrote. “Whatever Plaintiff planned on doing with the boat after purchasing it from Defendant in Washington cannot confer on this Court personal jurisdiction over Defendant.”

No Claim Stated

A three-judge panel said in a memorandum decision yesterday that “even if the District Court erred in dismissing for lack of personal jurisdiction, Lil’ Man failed to state a claim.”

The opinion declares:

“There are at least two reasons Lil’ Man failed to state a claim. First, there was never any agreement as to the terms of the purchase. Although Lil’ Man contends it accepted a ‘counter offer’ from Auk Ta Shaa’s broker, the broker’s response to Lil’ Man’s offer was not a counter offer, but rather a suggestion that Lil’ Man offer more money. Second, the alleged written and agreed-upon contractual terms did not contain the signature of Auk Ta Shaa or its broker as required by the statute of frauds.”

The case is Lil’ Man in the Boat, Inc. v. Auk Ta Shaa Discovery, LLC, 16-17299.

Kozinski’s Unavailability

Argument in the case was held Dec. 6 before Senior Circuit Judge Mary M. Schroeder, Circuit Judge Alex Kozinski, and District Judge Sara Lee Ellis of the District Court for the Northern District of Illinois, sitting by designation. Since that time, Kozinski resigned amidst allegations of sexual misconduct.

The opinion notes:

“Following Judge Kozinski’s retirement, Judge [John B.] Owens was drawn by lot to replace him….Judge Owens has read the briefs, reviewed the record, and listened to oral argument.”


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