Fiore

Order; Dissent to Order by Judge O’SCANNLAIN; Dissent to Order by Judge McKEOWN; Opinion by Judge BERZON; Dissent by Judge IKUTA.

ORDER

The opinion, filed on September 12, 2011, is withdrawn and replaced by the amended opinion attached to this order.

With this amendment, the majority of the panel has voted to deny appellee’s petition for rehearing. Judge Berzon has *562 voted to deny the petition for rehearing en banc and Judge Goodwin so recommends. Judge Ikuta has voted to grant the petition for rehearing and petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc. A judge of the court requested a vote on en banc rehearing. The majority of the active judges have voted to deny rehearing the matter en banc. Fed. R.App. P. 35(f).

The petition for rehearing and the petition for rehearing en banc are DENIED. Judge O’Scannlain’s and Judge McKeown’s dissents from denial of en banc rehearing are filed concurrently herewith.

Due process allows a court to exercise personal jurisdiction over a defendant only if “the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court…

with whom Judges GOULD, TALLMAN, CALLAHAN, BEA, IKUTA, and N.R. SMITH join, dissenting from the order denying rehearing en banc:

With the stroke of a pen, our circuit returns to a discredited era of specific personal jurisdiction, where foreseeability reigns supreme and purposeful direction is irrelevant. That approach was, of course, rejected in Burger King Corp. v. Rudzewicz; the Supreme Court was unequivocal that “foreseeability is not a sufficient benchmark for exercising personal jurisdiction.” 471 U.S. 462, 474 , 105 S.Ct. 2174 , 85 L.Ed.2d 528 (1985). Instead, the Due Process Clause requires that before a distant state exercises specific jurisdiction over a defendant, the defendant must purposefully direct activities at forum residents resulting in injuries arising out of or relating to those activities. Under the majority’s construct, mere knowledge of the potential out-of-state plaintiffs residence, along with a wrongful act, confers specific personal jurisdiction. This virtually limitless expansion of personal jurisdiction runs afoul of both due process guarantees and Supreme Court precedent.

A bare recitation of the facts reveals just how tenuous the forum (Nevada)…

dissenting:

Gambling, it is said, is a “sure way of getting nothing from something.” Here, by contrast, two professional gamblers get something from nothing. Although their complaint contains nothing that would provide a basis for asserting personal jurisdietion over the federal agent who allegedly violated their Fourth Amendment rights, the majority finds “something” in the complaint: specifically, the “false affidavit/forfeiture proceeding aspect” of their case. Maj. op. at 576 (emphasis added). This “aspect,” the majority determines, provides a basis for personal jurisdiction over the federal agent, even though it is neither a constitutional tort nor a state law claim, and even though plaintiffs never argued that it was. And the gamblers’ lucky streak does not end there: the majority then reverses the district court for failing to discern this elusive “aspect” and to apply the entirely discretionary (and rarely invoked) doctrine of “pendent personal jurisdiction.” In fact, the district court correctly determined that the complaint did not make a prima facie showing that the federal agent purposefully directed his actions to the forum state. Because the district court did not…