NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 8 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MITCHELL REED SUSSMAN, No. 20-55563

Plaintiff-Appellant, D.C. No. 5:20-cv-00612-JVS-MAA v.

PLAYA GRANDE RESORT, S.A. DE C.V, MEMORANDUM*

a Mexico corporation; DOES, 1- 10, inclusive,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Submitted February 4, 2021** Pasadena, California

Before: GOULD, LEE, and VANDYKE, Circuit Judges.

Appellant Mitchell Sussman appeals the district court’s order granting

Appellee Playa Grande Resort’s motion to dismiss under Federal Rule of Civil

Procedure 12(b)(2) for lack of personal jurisdiction. We have jurisdiction under 28

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). U.S.C. § 1291, and we review dismissals under Rule 12(b)(2) de novo. See Axiom

Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d 1064, 1067 (9th Cir. 2017). We affirm.

1. Playa Grande operates a resort in Cabo San Lucas and offers

timeshares. It has no presence in California other than a P.O. box in Los Angeles to

receive payments. Sussman, a California-based attorney, wrote a letter to Playa

Grande on behalf of Washington-based timeshare clients, stating that they wished to

cancel their timeshare membership. Playa Grande wrote back to the timeshare

members, explaining that their membership had not been canceled and suggesting

that Sussman had misled them. Sussman then sued Playa Grande in California for

libel per se.

2. Playa Grande is not subject to specific jurisdiction in California.

Where, as here, a suit involves tortious conduct, we employ a purposeful direction

analysis to determine whether a defendant has sufficient contacts with the forum to

establish specific jurisdiction. See Schwarzenegger v. Fred Martin Motor Co., 374

F.3d 797, 801–02 (9th Cir. 2004). This requires us to apply the “effects test”—set

forth in Calder v. Jones, 465 U.S. 783 (1984)—which is satisfied if a defendant has

“(1) committed an intentional act, (2) expressly aimed at the forum state, [and] (3)

causing harm that the defendant knows is likely to be suffered in the forum state.”

Morrill v. Scott Fin. Corp., 873 F.3d 1136, 1142 (9th Cir. 2017) (citations omitted).

The parties do not dispute that Playa Grande committed an intentional act by

2 sending the letter to the timeshare members. But the letter was not expressly aimed

at California. To satisfy the express aiming requirement, the relationship between

the defendant, the forum, and the suit “must arise out of contacts that the defendant

himself creates with the forum State.” Morrill, 873 F.3d at 1143 (quoting Walden v.

Fiore, 571 U.S. 277, 284 (2014)) (emphasis in original). Here, the lawsuit did not

arise out of any contacts that Playa Grande initiated with California.

The letter concerned a dispute over a timeshare in Mexico and addressed

potential harm that could be suffered by Washington residents. It was not circulated

in California or read by anyone residing in California. The only link between Playa

Grande’s letter and California is that it discussed the allegedly wrongful actions of

Sussman—an attorney licensed to practice in California—and suggested that the

timeshare members may want to seek disciplinary action against Sussman for

misleading them. But this does not establish express aiming, as “the plaintiff cannot

be the only link between the defendant and the forum.” Walden, 571 U.S. at 285.

Sussman argues that the letter was expressly aimed at California because

Playa Grande knew that he practiced law in California, that any disciplinary action

would occur there, and that any reputational harm would be felt there. But a

defendant’s knowledge of the plaintiff’s forum connections, coupled with

foreseeable harm to the plaintiff in the forum, is insufficient to meet the express

aiming standard. See Axiom Foods, 874 F.3d at 1069–70. And when we have found

3 express aiming in cases involving reputational harm, the defendant’s conduct

included publication in the forum state, which is absent here. See, e.g., id. at 1071;

Schwarzenegger, 374 F.3d at 807.

As the express aiming requirement of the Calder effects test has not been met,

Sussman cannot show that Playa Grande’s actions were purposefully directed at

California. Playa Grande thus does not have sufficient contacts with California to

support the exercise of specific jurisdiction.

3. Playa Grande is also not subject to general jurisdiction in California. It is

not registered to do business in California, nor does it have employees, agents,

representatives, or an office in the state. And while it does maintain a single P.O.

box in California for the purpose of receiving payments from its United States

customers, that is not enough to constitute “connections to the forum state [that] ‘are

so “continuous and systematic” as to render [Playa Grande] essentially at home in

the forum State.’” Williams v. Yamaha Motor Co. Ltd., 851 F.3d 1015, 1020 (9th

Cir. 2017) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S.

915, 919 (2011)). Moreover, Playa Grande’s website is accessible to people all over

the world and does not establish general jurisdiction in California simply because

California residents can access it. See Schwarzenegger, 374 F.3d at 801.

As neither specific nor general jurisdiction can be exercised over Playa

Grande, dismissal for lack of personal jurisdiction was proper.

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AFFIRMED.

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