This opinion is subject to revision before final
publication in the Pacific Reporter
2024 UT 30
IN THE
SUPREME COURT OF THE STATE OF UTAH
JUSTIN NELSON,
Appellee,
v.
ASHLEY PHILLIPS et al., ∗
Appellants.
No. 20230025
Heard March 4, 2024
Filed August 8, 2024
On Appeal of Interlocutory Orders
Fifth District, Washington County
The Honorable Jeffrey C. Wilcox
No. 210500804
Attorneys:
F. Kevin Bond, Kevin B. Call, John Huber,
Lauren E.H. DiFrancesco, Alexander Baker, Salt Lake City,
for appellee
William E. Frazier, Wil S. Bangerter, St. George, for appellants
Traci Phillips, Ashley Phillips, Leanne Daly, and Marco Majors
Ryan B. Bell, Shelby Jaye Hughes, Salt Lake City, for appellant
Kristin Breinholt
Robert L. Janicki, Matthew A. Jones, Sandy, for appellant
Kim Cerchiai
Rafael A. Seminario, Salt Lake City, for appellant Nancy Morgan
Wayne K. Caldwell, Wayman M. Stodart, Logan, for appellant
Amanda Jean Seymore
__________________________________________________________
∗ Additional Appellants: Traci Phillips, Kristen Breinholt;
Kim Cerchiai, Leanne Daly, Marco Majors, Nancy Morgan, and
Amanda Jean Seymore.
NELSON v. PHILLIPS
Opinion of the Court
ASSOCIATE CHIEF JUSTICE PEARCE authored the opinion of the
Court, in which CHIEF JUSTICE DURRANT, JUSTICE PETERSEN, JUSTICE
HAGEN, and JUSTICE POHLMAN joined.
ASSOCIATE CHIEF JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 Justin Nelson has brought an action against his former
mother-in-law, Traci Phillips, former sister-in-law, Ashley Phillips,
and friends and family of his deceased wife, Tiffani Nelson. Justin
alleges that Traci and Ashley conspired with the other defendants
(some of whom are also appellants) to destroy his reputation by
publicly suggesting that he was responsible for Tiffani’s death.
None of the appellants are Utah residents, and each appellant
moved to dismiss Justin’s complaint for lack of personal
jurisdiction.
¶2 Each appellant contradicted, under oath, the allegations
Justin included in his complaint that supported the exercise of
jurisdiction over them. Justin opted not to put forward evidence of
his own to counter the evidence appellants presented to the district
court. Justin instead relied on the allegations in his complaint and
argued that the district court could assert jurisdiction over the
appellants if it accepted his allegations as true and employed the
conspiracy theory of jurisdiction.
¶3 The district court denied the motions to dismiss. The court
concluded that Justin had sufficiently alleged facts that, if proven,
would demonstrate that the appellants had conspired to defame
him. The court reasoned that this was a sufficient basis to assert
personal jurisdiction over all the appellants other than Traci and
Ashley. As for Traci and Ashley, the court concluded it did not
need to look to conspiracy jurisdiction because it reasoned that each
of them had personal contacts with Utah sufficient to allow the
court to exercise specific personal jurisdiction over them.
¶4 Appellants petitioned for interlocutory review, asking this
court to assess whether the district court erred when it concluded
that it could exercise jurisdiction using the conspiracy theory. Traci
and Ashley also sought interlocutory review on that basis, and only
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on that basis, even though the court had not reached the issue with
respect to them.
¶5 The district court erred with respect to all appellants other
than Traci and Ashley. Justin failed to meet his burden of
supporting his allegations with evidence—a burden that appellants
triggered when they offered sworn testimony to rebut the
jurisdictional assertions Justin pleaded in his complaint. We
therefore reverse the denial of the motions to dismiss filed by all
appellants other than Traci and Ashley. We dismiss the petitions
for interlocutory review Traci and Ashley filed as improvidently
granted and offer no opinion on the district court’s exercise of
jurisdiction over them.
BACKGROUND
¶6 Justin and Tiffani were a married couple who lived in
Washington County, Utah. Justin filed to divorce Tiffani in
February 2021. Tiffani took her life in August of that year.
¶7 Tiffani’s funeral was held in Arizona. Justin did not attend
the service. But Justin apparently has some knowledge about what
occurred there. In his complaint, Justin alleges “[u]pon information
and belief” that, at the funeral, appellants Traci Phillips, Ashley
Phillips, Kristin Breinholt, Kim Cerchiai, Leanne Daly, Marco
Majors, and Nancy Morgan “met and discussed their mutual
intention to damage” Justin’s “reputation by publicizing
unfounded accusations that he had committed domestic violence”
against Tiffani and was responsible for her death. 1
__________________________________________________________
1 “Information and belief” is a legal term of art indicating that
the allegation or assertion is “based on secondhand information
that the declarant believes to be true.” Information and Belief, On,
BLACK’S LAW DICTIONARY (12th ed 2024). The Third Circuit Court
of Appeals has described the phrase as “a lawyerly way of saying
that [a party] does not know that something is a fact but just
suspects it or has heard it.” Donald J. Trump for President, Inc. v. Sec’y
of Pennsylvania, 830 F. App’x 377, 387 (3d Cir. 2020).
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¶8 All the appellants filed motions to dismiss for lack of
personal jurisdiction. 2 As we detail below, each appellant
supported his or her motion with sworn testimony that he or she
was not a Utah resident and had only limited contacts with the
State. Justin opposed the motions but offered no evidence to
counter the appellants’ declarations. 3
I. Traci Phillips
¶9 Justin alleged that Traci defamed him while she was in
Utah. He further alleged that when Traci was outside the State, she
made defamatory statements about him that were directed at Utah
residents with the intent to harm him. He also alleged that Traci
had engaged in a conspiracy to defame him with people both inside
and outside the State.
¶10 For example, Justin alleged that Traci made defamatory
remarks about him in Utah when she interacted with Washington
County police officers and Tiffani’s former landlord. Justin claimed
that Traci made several defamatory social media posts and
repeatedly commented on posts to create the impression that Justin
had “committed domestic violence against” Tiffani and “was
responsible for her death.”
¶11 Justin also alleged that “[u]pon information and belief,”
Traci met with other defendants at Tiffani’s funeral and “discussed
their mutual intention to damage” Justin’s reputation “by
publicizing unfounded accusations that he had committed
__________________________________________________________
2 We note that Traci, Ashley, Breinholt, Majors, and Morgan
moved to dismiss with prejudice, while Seymore and Daly sought
dismissal without prejudice. Cerchiai was unclear about the precise
relief she wanted from the court.
3 Justin’s opposition briefing requested jurisdictional discovery
in the event the district court “determined [his complaint] not to be
sufficient for the court to assert personal jurisdiction.” Justin
“renew[ed] the . . . request for jurisdictional discovery” during the
motion hearings. After the court took the motions under
advisement, it denied Justin’s discovery request. But any complaint
Justin might have had about that (at least with respect to the
appellants) became academic once the district court denied the
motions to dismiss.
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domestic violence against” Tiffani and “was responsible for her
death.” Justin asserted that Traci “reached an explicit or implicit
meeting of the minds” with the defendants—specifically calling out
all the appellants but Daly and Majors—“to defame [Justin] and
place him in a false light and cause him emotional distress by
publicizing unfounded accusations” against him.
¶12 Traci attached a declaration to her motion to dismiss. Traci
asserts, under oath, that she is a citizen and resident of Arizona and
that she has never been a citizen or resident of Utah. Traci states
that she “did not ‘combine’ or meet with any other person or group
of people at Tiffani’s funeral to discuss a mutual intention to
damage Justin’s reputation or to publicize accusations that he had
committed domestic violence against Tiffani or that he was
responsible for Tiffani’s death.” Traci also asserts that she “did not
reach ‘an explicit or implicit meeting of the minds’ with any other
person . . . to defame Justin, place him in a false light, or cause him
emotional distress by publicizing accusations that he had
committed domestic violence against Tiffani or that he was
responsible for her death.”
¶13 Justin opposed Traci’s motion but did not provide a sworn
declaration, or any other evidence, of his own.
II. Ashley Phillips
¶14 Justin’s complaint alleged that, like her mother, Ashley
defamed Justin both while she was physically present in Utah and
while she was outside the State. Justin also alleged that Ashley
participated in the discussions at Tiffani’s funeral that culminated
in the plot to harm his reputation.
¶15 Justin claimed that Ashley gave a speech at Tiffani’s
funeral where she said that Tiffani’s “story is not over, in fact, it is
just beginning. I promise to fight for her and be the voice for her
justice.” Justin further alleged that Ashley said that as “a group of
family and friends who love her dearly, we need to keep her spirit
alive and fight for her.”
¶16 Justin also alleged that Ashley attempted to break into
Tiffani’s residence in Utah to take Tiffani’s belongings. And that in
connection with that attempt, she “angrily and fervently shouted
to the landlord and police officers that [Justin] had murdered her
sister.”
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¶17 Ashley moved to dismiss Justin’s allegations against her
and attached a supporting declaration to her motion. Ashley’s
declaration claimed that she was a citizen and resident of California
and that she had never resided in Utah. Ashley denied meeting
with anyone at Tiffani’s funeral to discuss a plan to hurt Justin’s
reputation. The declaration specifically denied reaching “‘an
explicit or implicit meeting of the minds’ with any other person . . .
to defame Justin, place him in a false light, or cause him emotional
distress by publicizing accusations that he had committed domestic
violence against Tiffani or that he was responsible for her death.”
¶18 Although Justin opposed Ashley’s motion, he did not file
a counter-declaration, nor did he offer any evidence of his own to
support his opposition.
III. Kristin Breinholt
¶19 Justin alleged, on information and belief, that Breinholt
participated in discussions at Tiffani’s funeral and that she reached
a meeting of the minds with some of the other defendants to make
unfounded accusations against him.
¶20 Justin further alleged that Breinholt visited Traci’s home
before Tiffani’s funeral to discuss with Traci and Ashley their
“mutual desire to damage” his reputation. And he alleged that
Breinholt reposted a GoFundMe link that raised money for
domestic abuse victims. The post allegedly stated, “JUST AS I
KNOW TIFF DID FIGHT FOR US . . . I WILL FIGHT FOR HER. . . .
IF YOU, OR SOMEONE YOU KNOW IS IN AN ABUSIVE
RELATIONSHIP PLEASE REACH OUT. . . . NO MORE, THIS
CAN’T HAPPEN ANYMORE.”
¶21 Breinholt attached a declaration to her motion to dismiss
stating that during Tiffani’s funeral, Breinholt did not “discuss
[Justin] or my or anyone else’s intent to damage his reputation.” It
further denied reaching “an explicit or implicit meeting of the
minds with any person” to defame Justin or to publicize unfounded
accusations against him. Breinholt declared that she had “never
been to Traci Phillips’ home.” Breinholt’s declaration also attested
that she was an Arizona resident and had “never been a resident of
Utah,” nor did she “have any significant ties to Utah.”
¶22 Justin did not offer any evidence in support of his
opposition to Breinholt’s motion to dismiss.
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IV. Kim Cerchiai
¶23 Justin’s complaint alleged that, in addition to participating
in the conspiratorial discussions at Tiffani’s funeral, Cerchiai spoke
at the funeral and read defamatory statements about him that the
Phillipses had written.
¶24 Cerchiai’s declaration asserted that she is an Arizona
citizen and has continuously resided in Arizona since 1978. Her
declaration stated, “My public comments at the funeral service
were composed by myself and were not written or co-authored by
any other individual.” It also denied the allegation that she had
reached a meeting of the minds to defame Justin. The declaration
asserted that Cerchiai “did not agree to act in concert with anyone
to defame Justin [] while I was present for the funeral service of
Tiffani [] in Scottsdale, AZ.”
¶25 Justin made no effort to refute this evidence with his own.
V. Leanne Daly
¶26 Justin’s allegations against Daly are different from those
against the other appellants. Justin did not specifically allege, for
example, that Daly combined with the other appellants to publicize
accusations that Justin subjected Tiffani to domestic abuse.
¶27 Justin instead argues that Daly is covered by allegations he
made against other appellants. That is, Justin’s complaint contends
that Daly is among the “other defendants” who met with certain
named defendants to discuss a plan to harm his reputation.
¶28 In addition to Justin’s “other defendant” conspiracy
allegations against Daly, his complaint alleged that Daly posted the
same GoFundMe link as Breinholt. Justin alleged that the post had
the following caption: “The best birthday gift that we can give our
beautiful little [Tiffani and Justin’s minor daughter] is to ensure
that her Mom’s legacy lives on to help other victims of abuse . . .
victims that still have the chance to be saved.”
¶29 Daly attached a declaration to her motion to dismiss. It
asserted that she is an Irish citizen who has never been a resident
of Utah. It acknowledged that she attended Tiffani’s funeral but
denied that she met “to discuss a mutual intention to damage
Justin’s reputation.”
¶30 Justin failed to submit a counter-declaration with his
opposition brief.
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VI. Marco Majors
¶31 Justin alleged that Teal Marie Deegan “reached an explicit
or implicit meeting of the minds with other [d]efendants in this
case, in particular . . . Marco Majors,” to defame Justin.
¶32 He also alleged that Majors reposted something titled “Be
Strong For My Cousin Tiffani . . . DV Abuse Is Very Real.” The post
is alleged to have stated,
We will not stop until we seek justice for Tiffani! Stop
domestic abuse . . . if you know someone that is in an
abusive relationship, please reach out to them and
offer help! . . . Tiffani was so loved by many, and
without a doubt will [sic] keep fighting for her.
¶33 Majors’s declaration admitted that he had attended
Tiffani’s funeral but denied that he met to discuss a mutual
intention to damage Justin’s reputation. Majors’s declaration
additionally asserted that he is a Texas resident who has never been
a Utah resident.
¶34 Justin did not contest Majors’s sworn statements with
evidence supporting his allegations.
VII. Nancy Morgan
¶35 Justin alleged, on information and belief, that Nancy
Morgan met with Traci and agreed to defame Justin and place him
in a false light by publicizing unfounded allegations about his role
in Tiffani’s death.
¶36 He also alleged that Morgan reposted the following
statement on a social media site:
We will not stop until we seek justice for Tiffani! Stop
domestic abuse . . . if you know someone that is in an
abusive relationship, please reach out to them and
offer help! . . . Tiffani was so loved by many, and
without a doubt will [sic] keep fighting for her.
Justin further alleged that Morgan commented on a post about
Tiffani and stated, “[w]e will not rest until we have justice for our
Tiffani.”
¶37 Morgan submitted a declaration in support of her motion
to dismiss. She declared that she is an Arizona resident. She denied
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participating in any conspiracy. She also denied attending any
meeting where a conspiracy was discussed.
¶38 Justin’s opposition lacked any evidence contradicting
Morgan’s sworn statements.
VIII. Amanda Seymore
¶39 Justin alleged, on information and belief, that Seymore had
reached a meeting of the minds with other defendants to defame
Justin. Justin’s complaint also alleged that around the day of
Tiffani’s funeral, Seymore wrote on Facebook
I still can not [sic] and will not accept this going
without Tiff’s voice being HEARD. If you haven’t
called yet, call. If you have called, call again. And
again. For her families [sic] sake, for her children’s
sake.[] SPEAK for Tiffani. Detective Dove was “off
duty” so continued on dispatch, got to chiefs
voicemail and finally spoke to lieutenant Page
possibly Paige, didn’t confirm spelling and can’t find
his standing in Utah after a deep long search.[] . . .
Speak up, speak out. The case is still open for a
reason!!! Utah police department- (435) 986-1515,
press 1 for non emergency dispatch and hold for a
dispatcher, then ask for Detective Dove for
Lieutenant Page/Paige []. Any voice heard is a voice
worth hearing. They need feedback, they need you!!!
The complaint alleged that Seymore could only have learned the
detective’s information from a defendant related to Tiffani. Justin’s
complaint also alleged that “Seymore engaged in a discussion [via
Facebook comments] with” defendants not a part of this appeal,
“celebrating the effect their collective posts were having on . . .
[Justin’s] reputation.” Justin claimed that Seymore replied, in
response to a comment on her post, “They’re [sic] reputation is not
worth Tiffani’s life.”
¶40 Seymore’s declaration asserted that she is a Missouri
resident with no Utah ties. The declaration further stated that
Seymore did not attend Tiffani’s funeral. It did not, however,
discuss Justin’s allegations that she had reached a meeting of the
minds with other defendants to defame Justin.
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¶41 Seymore’s verified reply, on the other hand, responded to
the conspiracy allegations. 4 The verified reply specifically denied
that Seymore had reached “a meeting of the minds of any kind,
implicit or explicit, with any of the other” defendants “to act
together in any manner whatsoever.” It emphasized that she
“certainly has not conspired” with any other defendant to attempt
to harm Justin.
¶42 Justin did not respond to Seymore’s declaration or verified
reply with his own declaration.
IX. The Personal Jurisdiction Proceedings
¶43 The district court held hours of motion hearings over
several months to resolve the motions to dismiss. The district court
did not hold evidentiary hearings, but at one point, the court gave
Justin the opportunity to verify his complaint on the record. The
court said, “Utah law specifically states that once the defendants
file affidavits putting jurisdiction at risk, the plaintiff can’t simply
rely on an unverified complaint. And what I’m going to do, I’m
going to give you that time [to see if Justin would like to verify his
complaint].” Justin conferred with counsel, after which his counsel
replied, “We think it makes more sense to just proceed today based
on the filings, not adding a verification to this complaint.”
¶44 The district court concluded that it had specific personal
jurisdiction over Traci and Ashley. It therefore denied their
motions to dismiss.
¶45 The district court also concluded it had personal
jurisdiction over Breinholt, Cerchiai, Daly, Majors, Morgan, and
Seymore based on a conspiracy theory of personal jurisdiction. The
court denied their motions to dismiss.
¶46 Each appellant individually filed a petition for
interlocutory review. We granted each petition and consolidated
the appeals.
__________________________________________________________
4 The Utah Rules of Civil Procedure provide that if a “reply
memorandum includes evidence not previously set forth, the
nonmoving party may file an objection to the evidence no later than
7 days after the reply memorandum is filed.” UTAH R. CIV. P. 7(f).
Justin did not object to the evidence that Seymore included in her
verified reply.
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ISSUES AND STANDARD OF REVIEW
¶47 Appellants can be organized into two groups based on
their arguments. Traci and Ashley compose the first group. Traci
and Ashley argue that (1) the district court erred because it
“assum[ed] the allegations in [Justin’s] Second Amended
Complaint as true and ma[de] all inferences in [his] favor” despite
contradictory documentary evidence; (2) they did not have
sufficient minimum contacts to establish specific personal
jurisdiction; and (3) Justin failed to plead with specificity each
element of conspiracy jurisdiction.
¶48 Breinholt, Cerchiai, Daly, Majors, Morgan, and Seymore
make up the second group. These appellants argue, among other
things, that the district court erred because (1) it failed to strike
Justin’s allegations that the appellants’ documentary evidence had
controverted; and (2) Justin failed to plead with specificity each
element of conspiracy jurisdiction.
¶49 Because the district court ruled on the jurisdictional
questions based on “documentary evidence,” this appeal “presents
only legal questions that are reviewed for correctness.” Raser Techs.,
Inc. ex rel. Hous. Phx. Grp., LLC v. Morgan Stanley & Co., 2019 UT 44,
¶ 32,
449 P.3d 150 (cleaned up).
ANALYSIS
I. WE IMPROVIDENTLY GRANTED TRACI AND ASHLEY’S PETITIONS FOR
INTERLOCUTORY REVIEW
¶50 On appeal, Traci and Ashley argue that the district court
lacked specific personal jurisdiction over them, either based on
their own suit-related contacts with Utah or based on a conspiracy
theory of jurisdiction. But as we explain, we granted interlocutory
review only on the latter issue, a question the district court did not
reach with respect to Traci and Ashley.
¶51 With respect to conspiracy-based jurisdiction, Traci and
Ashley argue that the district court erred because Justin failed to
plead “reasonably definite factual allegations establishing that
[Traci and Ashley were a] part of a combination of two or more
persons who had a meeting of the minds on an object to be
accomplished.”
¶52 Traci and Ashley petitioned for interlocutory review of the
“District Court’s denial of Moving Defendants’ Motion to Dismiss
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for Lack of Jurisdiction based on a conspiracy theory of
jurisdiction.” We granted their petitions on this issue—and only
this issue. But the district court did not rule based on the conspiracy
theory with respect to Traci and Ashley. Indeed, it did not need to
because it concluded that Traci and Ashley each had personal
specific contacts with Utah that allowed the exercise of jurisdiction
over them.
¶53 Traci and Ashley did not ask us to review that ruling. We
granted interlocutory review in this matter to address the question
that all appellants—including Traci and Ashley—asked us to
review: whether the district court erred when it ruled that it had
“specific personal jurisdiction . . . based on a conspiracy theory of
personal jurisdiction” over the appellants. Because the district
court did not rule on conspiracy jurisdiction for Traci and Ashley,
we dismiss their petitions for interlocutory review as
improvidently granted. We offer no opinion on the issue that Traci
and Ashley did not ask us to reach when they petitioned for
interlocutory review—whether the district court erred when it
denied their motions to dismiss because it concluded that the
exercise of specific personal jurisdiction based on their personal
contacts with Utah was warranted.
II. GENERAL PRINCIPLES OF PERSONAL JURISDICTION
¶54 “The authority of the state to hale a nonresident into a state
court hinges on the ability to establish personal jurisdiction.” Raser
Techs., Inc. ex rel. Hous. Phx. Grp., LLC v. Morgan Stanley & Co., 2019
UT 44, ¶ 34,
449 P.3d 150 (cleaned up). A “court’s exercise of
personal jurisdiction must be consistent with the due process
protections of the Fifth and Fourteen[th] Amendments to the
United States Constitution.”
Id. (cleaned up).
¶55 There are two categories of personal jurisdiction: general
and specific. Id. A “court may assert general jurisdiction over
foreign [defendants] to hear any and all claims against them when
their affiliations with the State are so continuous and systematic as
to render them essentially at home in the forum State.”
Id. (cleaned
up). In contrast, “specific personal jurisdiction gives a court power
over a defendant only with respect to claims arising out of the
particular activities of the defendant in the forum state.” Id. ¶ 35
(cleaned up). Only specific personal jurisdiction is at issue in this
case.
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¶56 “For a State to exercise [specific personal] jurisdiction
consistent with due process, the defendant’s suit-related conduct
must create a substantial connection with the forum State.” Walden
v. Fiore, 571 U.S. 277, 284 (2014). Walden directed courts to focus on
“two related aspects of the relationship among the defendant, the
forum, and the litigation to determine whether jurisdiction is
proper.” Raser,
2019 UT 44, ¶ 37 (cleaned up). The first looks to
whether “the relationship arises out of contacts that the defendant
himself creates with the forum State.”
Id. (cleaned up). The second
examines whether “a defendant’s contacts are with the forum State
itself, not with persons who reside there.”
Id. (cleaned up).
¶57 A conspiracy theory of specific personal jurisdiction
“imputes minimum contacts to all members of a conspiracy if one
member took a substantial and overt act in furtherance of the
conspiracy in the forum state.” Pohl, Inc. of Am. v. Webelhuth, 2008
UT 89, ¶ 28,
201 P.3d 944. “The conspiracy theory of personal
jurisdiction is based on the time honored notion that the acts of a
conspirator in furtherance of a conspiracy may be attributed to the
other members of the conspiracy.”
Id. (cleaned up) (quoting Textor
v. Bd. of Regents,
711 F.2d 1387, 1392 (7th Cir. 1983)).
¶58 In Raser, we noted that a “conspiracy theory of jurisdiction
can satisfy” federal due process concerns. 2019 UT 44, ¶ 76. We
reasoned that a “defendant’s acts through an agent” is an “example
of one kind of relevant contact that may subject an individual to
jurisdiction.”
Id. (cleaned up). We recognized that “because a
conspiracy is a type of agency relationship, an act taken during the
course of a conspiracy relationship may lead to specific personal
jurisdiction over a defendant.” Id. ¶ 79.
¶59 This court was explicitly wary of adopting a conspiracy
theory of jurisdiction. Id. ¶ 86. We ultimately concluded that a Utah
plaintiff could attempt to allege that a nonresident defendant is
subject to the jurisdiction of the Utah court based upon a co-conspirator’s Utah contacts because the Utah Nonresident
Jurisdiction Act “direct[ed] us to apply the statute so as to assert
jurisdiction over nonresident defendants to the fullest extent
permitted by the due process clause of the Fourteenth Amendment
to the United States Constitution.” Id. ¶ 73 (cleaned up). Put simply,
because the Legislature “made the policy decision” about the scope
of a court’s jurisdiction over nonresidents, our job in Raser was to
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decide whether “a conspiracy theory of jurisdiction [] comports
with due process principles.” Id.
¶60 We understood and explained that if a court were to
exercise jurisdiction over a defendant based upon a co-conspirator’s contacts with the forum, that court would need to
assess “the role the co-conspirator played in the conspiracy and the
contacts between the conspirators and the forum state” to ensure it
had jurisdiction. Id. ¶ 86. We emphasized that courts applying the
Raser test should be guided by the principle that personal
jurisdiction can only exist where a defendant “could reasonably
anticipate being haled into court in” Utah. Id. We also stressed that
a “bare allegation of a conspiracy between the defendant and a
person within the personal jurisdiction of the court is not enough
to establish jurisdiction” and that a viable “complaint must set forth
reasonably definite factual allegations, either direct or inferential,
regarding each material element needed to show a civil
conspiracy.” Id. ¶ 87 (cleaned up) (emphasis added).
¶61 Against that backdrop, the Raser court held that to assert
specific personal jurisdiction under a conspiracy theory, a plaintiff
needs to “plead with particularity” for each defendant that:
(1) the defendant is a member of a conspiracy, (2) the
acts of the defendant’s co-conspirators create
minimum contacts with the forum, and (3) the
defendant could have reasonably anticipated that her
co-conspirator’s actions would connect the
conspiracy to the forum state in a meaningful way,
such that she could expect to defend herself in that
forum. 5
Id. ¶ 85.
__________________________________________________________
5 Raser’s requirement that a plaintiff plead that the defendant is
a member of a conspiracy presupposes that the plaintiff can also
adequately plead the existence of a conspiracy. This requires the
plaintiff to plead five elements: “(1) a combination of two or more
persons, (2) an object to be accomplished, (3) a meeting of the
minds on the object or course of action, (4) one or more unlawful,
overt acts, and (5) damages as a proximate result thereof.” Alta
Indus. Ltd. v. Hurst, 846 P.2d 1282, 1290 n.17 (Utah 1993) (cleaned
up).
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¶62 Our concerns about the potential for a conspiracy theory
of jurisdiction to run roughshod over an out-of-state defendant’s
due process rights are somewhat assuaged by the process for
allowing a defendant to contest jurisdiction early in the
proceedings. Utah Rule of Civil Procedure 12(b)(2) permits a
defendant to respond to a complaint with a motion to dismiss that
contests personal jurisdiction. Caselaw outlining the procedures
for handling those challenges has bloomed around the rule.
¶63 We began to develop our mechanism for resolving
personal jurisdiction disputes in Roskelley & Co. v. Lerco, Inc., 610
P.2d 1307 (Utah 1980). The defendant in Roskelley challenged the
district court’s ability to exercise personal jurisdiction over it and
supported its challenge with an affidavit contradicting the
plaintiff’s allegations.
Id. at 1308–09. The facts the defendant
asserted “were not controverted by plaintiff by counter-affidavit or
otherwise.”
Id. at 1309. The district court denied the defendant’s
motion and the defendant appealed.
Id. at 1308.
¶64 We declared that “when jurisdiction is challenged,
plaintiff cannot solely rely on allegations of jurisdiction in its
complaint in the face of an affidavit by defendant which specifically
contradicts those general allegations.” Id. at 1310. Because the
defendant’s affidavit specifically contradicted the plaintiff’s
general allegations, the Roskelley court reversed the district court.
Id. at 1309–10.
¶65 We continued to develop the procedure in Anderson v.
American Society of Plastic & Reconstructive Surgeons,
807 P.2d 825
(Utah 1990).
¶66 Anderson’s claims arose out of “experimental therapy she
received for a disfiguring condition of her face.” Id. at 826. Two out-of-state defendants did not conduct Anderson’s therapy, but they
did set up and monitor its implementation.
Id. Anderson and the
two defendants disputed whether the defendants had sufficient
contacts with Utah to permit the district court to “assert jurisdiction
compatible with due process requirements.”
Id. Anderson and the
two defendants submitted deposition testimony and affidavits to
support their arguments.
Id. The district court in Anderson
concluded “that to assert jurisdiction over [the] defendants would
offend due process.”
Id.
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¶67 We noted that we had not outlined a procedure to govern
jurisdictional contests in Roskelley because the plaintiff there had
failed to introduce any evidence to support the assertion of
jurisdiction. Id. at 826–27. Borrowing from federal procedure, we
held that when a court reviews a rule 12(b)(2) challenge, it must
accept the plaintiff’s factual allegations “as true unless specifically
controverted by the defendant’s affidavits or by depositions, but
any disputes in the documentary evidence are resolved in the
plaintiff’s favor.”
Id. at 827.
¶68 The test we developed in Anderson requires that if a
defendant introduces evidence to contradict the complaint’s
allegations that establish personal jurisdiction, the burden shifts to
the plaintiff to support those assertions with something more than
what is in the complaint. That is, the plaintiff can no longer rely on
the complaint’s allegations but must provide the court prima facie
evidence of personal jurisdiction. 6
¶69 If the plaintiff fails to provide prima facie evidence of
personal jurisdiction, then there is no evidentiary dispute, and the
jurisdictional facts offered by the defendant “are taken as true and
the facts recited in the complaint are considered only to the extent
that they do not contradict the” defendant’s evidence. Arguello v.
Indus. Woodworking Mach. Co., 838 P.2d 1120, 1121 (Utah 1992),
holding modified on other grounds by State ex rel. W.A.,
2002 UT 127,
63 P.3d 607.
¶70 If, however, the plaintiff puts forward evidence such that
there is evidentiary support on both sides of the jurisdictional
question, “any disputes in the documentary evidence are resolved
in the plaintiff’s favor.” Anderson, 807 P.2d at 827. Alternatively, if
__________________________________________________________
6 Courts can, in appropriate circumstances, permit limited
discovery aimed at jurisdictional issues to help address a plaintiff’s
informational disadvantage. District courts are “entrusted with
broad discretion in dealing with discovery matters,” including
whether to grant jurisdictional discovery. See In re Discipline of
Pendleton,
2000 UT 77, ¶ 38,
11 P.3d 284; see also ClearOne, Inc. v.
Revolabs, Inc.,
2016 UT 16, ¶ 35,
369 P.3d 1269 (“Denying
jurisdictional discovery is not an abuse of discretion when it is clear
that further discovery would not demonstrate facts sufficient to
constitute a basis for jurisdiction.” (cleaned up)), abrogated on other
grounds by Raser,
2019 UT 44, ¶ 35.
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jurisdiction turns on different facts than the merits of the case, a
district court has the option to hold an evidentiary hearing and
make findings and conclusions on the jurisdictional question. But
we have cautioned that it would be inappropriate to hold an
evidentiary hearing “[w]hen jurisdiction turns on the same facts as
the merits of the case” because this could intrude on the right to a
jury and result in inefficient use of judicial resources. Id.
III. THE DISTRICT COURT ERRONEOUSLY CONCLUDED IT POSSESSED
JURISDICTION OVER THE OUT-OF-STATE APPELLANTS
¶71 As noted above, we have consolidated several individual
appeals. Almost every appellant filed separate briefing in support
of his or her appeal. Although the appellants raise similar
arguments, each offers at least a slight variation based on Justin’s
particular allegations. At the risk of repetition, we discuss each
appellant individually.
A. Kristin Breinholt
¶72 Justin alleged that Breinholt “combined with other
[d]efendants” at Tiffani’s funeral to damage Justin’s reputation by
publicizing accusations that he committed domestic violence
against Tiffani and caused her death. Justin also alleges that
Breinholt “reached an explicit or implicit meeting of the minds with
other [d]efendants in this case” to do the same. Justin pleaded that
Breinholt visited Traci’s house to discuss the same objective. And
he claimed that Breinholt made a defamatory repost on a social
media site that contained a GoFundMe link to raise money for
victims of domestic violence.
¶73 Breinholt moved to dismiss Justin’s complaint for lack of
personal jurisdiction. She supported her motion with a sworn
declaration. Her declaration stated that during Tiffani’s “funeral
and related services, I did not discuss [Justin] or my or anyone
else’s intent to damage his reputation.” It further explained, “I
never reached an explicit or implicit meeting of the minds with any
person . . . to defame Justin [] or to place him in a false light by
publicizing unfounded accusations that he had committed
domestic violence against Tiffani [] or that he was responsible for
her death[.]” And the declaration denied that Breinholt had ever
visited Traci’s home.
¶74 The district court denied Breinholt’s motion to dismiss. It
commented that “at a Rule 12(b) situation, I am normally loathe to
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Opinion of the Court
dismiss because it would be without prejudice when there is
jurisdictional issues. . . . And I do have to take any undisputed facts
or facts that may be in dispute but [must make reasonable]
inferences and have those inferences go in favor of the plaintiff.”
The court concluded that “there is enough, barely, for a conspiracy
theory jurisdiction.” The court warned Justin’s counsel that the case
was “hanging on by very, very thin . . . threads of jurisdiction. And
you’re going to have to, I believe, have more to have this go much—
very much further.”
¶75 Breinholt argues that because she submitted documentary
evidence “contradicting [Justin’s] unverified allegations regarding
jurisdiction, ‘the facts asserted in the affidavit are taken as true and
the facts recited in the complaint are considered only to the extent
that they do not contradict the affidavit.’” (Quoting Arguello v.
Indus. Woodworking Mach. Co., 838 P.2d 1120, 1121 (Utah 1992).)
¶76 Justin counters that the “myriad legal conclusions as well
as ‘factual’ assertions that overlap with an ultimate issue of the
merits of a claim (e.g., whether a meeting of the Co-Conspirators
occurred) contained in the Co-Conspirators’ affidavits are entirely
irrelevant for purposes of this appeal.” 7 Justin claims that because
__________________________________________________________
7 Justin raises an interesting point about legal conclusions
masquerading as factual assertions. Justin contends that a clever
defendant might carefully word a denial so that it appears that the
defendant is denying the factual allegation when she is really just
contesting a legal conclusion embedded in the allegation. We can
agree, in the abstract, that a declaration that doesn’t really contest
the factual allegations may not be sufficient to trigger the need for
the plaintiff to support those allegations with evidence.
The problem for Justin here is that the appellants refuted his
allegations at the same level of generality at which those allegations
were pleaded. That is, when Justin made specific allegations, the
appellants countered with specific refutations. For example, Justin
alleged that Breinholt met with Traci at her home. Breinholt denied
ever having been to Traci’s house. And when Justin relied on
general statements, the appellants responded with general
refutations. For example, Justin contended that Breinholt combined
with other defendants to reach a meeting of the minds to defame
(continued . . .)
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“Breinholt’s dispute . . . ‘turns on the same facts as the merit of the
case,’” a determination of whether jurisdiction exists must wait
until the trial on the merits. (Quoting Anderson v. Am. Soc’y of Plastic
& Reconstructive Surgeons, 807 P.2d 825, 827 (Utah 1990).)
¶77 Where there is an evidentiary dispute over jurisdictional
facts, and that dispute goes to the merits of the case, the district
court should not resolve the evidentiary dispute at the motion to
dismiss stage but should allow the ultimate finder of fact to sort it
out. See id. Justin misapplies this concept because to create that
dispute there needs to be evidence on both sides of the ledger. Here,
the evidence was entirely one-sided. Breinholt submitted a
declaration contesting the lion’s share of the material allegations
against her. This triggered Justin’s obligation to put evidence
before the court that supported his assertions. See
id. at 826 (“[I]n a
pretrial determination of jurisdiction, a plaintiff cannot rely on
allegations made in the complaint if the defendant has specifically
controverted alleged jurisdictional facts by affidavit.”). Justin chose
not to. The consequence of that choice was that the district court
could not rely on any of his unsupported allegations to determine
whether jurisdiction is proper.
¶78 For Justin’s argument to have teeth, he needed to put
evidence before the court to support his allegations. 8 For example,
Justin alleges that Breinholt conspired with other defendants at
Tiffani’s funeral to defame him. Breinholt denied that allegation
under oath. To create the evidentiary conflict Justin says exists, he
would have needed to provide the district court with some
evidence that the meeting at the funeral occurred and that the
__________________________________________________________
him. Breinholt declared that she “never reached an explicit or
implicit meeting of the minds with any person.” Justin should not
be heard to complain about the form of denials that mirrored the
way he chose to frame his allegations. Once Breinholt refuted
Justin’s allegations, the burden shifted to him to forward some
evidence to create a factual issue.
8 To be sure, conflicts “between the affidavits submitted on the
question of personal jurisdiction are [] resolved in favor of the
plaintiff.” Am. Land Program, Inc. v. Bonaventura Uitgevers
Maatschappij, N.V., 710 F.2d 1449, 1454 n.2 (10th Cir. 1983) (cleaned
up); see also Anderson,
807 P.2d at 827. But a party in Justin’s shoes
must submit an affidavit to create that conflict.
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Opinion of the Court
defendants conspired. But he did not. And this prevents Justin
from relying on the caselaw that sets forth the procedure when
there is a bona fide evidentiary dispute before the court.
¶79 Justin pushes back against this conclusion and cites cases
where we have said that all a plaintiff needs to do at a pleading
stage is to “make a prima facie showing of personal jurisdiction.”
(Quoting id. at 827.) Justin’s argument demonstrates a
misunderstanding of a plaintiff’s burden when a defendant
challenges jurisdiction with evidence.
¶80 A rule 12(b)(2) motion to dismiss for lack of personal
jurisdiction comes in two flavors. An out-of-state defendant could
file a rule 12(b)(2) motion and argue that, even if the court accepts
the facts of the complaint as true, the plaintiff has not made a prima
facie showing that jurisdiction over him is proper. If, for example,
a plaintiff alleged that an out-of-state defendant stole property
from him, but the plaintiff’s complaint fails to allege that the theft
occurred in Utah, the defendant could argue that the plaintiff’s
allegations fail to establish the court’s specific personal jurisdiction
over him because it does not state a prima facie showing of
jurisdiction.
¶81 On the other hand, if the plaintiff alleged the theft occurred
in Utah, the defendant could still bring a rule 12(b)(2) motion
challenging jurisdiction. In this scenario, the defendant might
forward evidence to the district court contesting the accuracy of the
complaint’s allegations. In this circumstance, the motion would not
attack the sufficiency of the bare allegations of the complaint but
would put the accuracy of the jurisdictional allegations at issue.
¶82 In each instance, the plaintiff bears a burden to make a
prima facie showing of jurisdiction. But in the second example,
because the defendant has specifically challenged, with evidence, a
factual allegation that establishes personal jurisdiction, the plaintiff
must meet the defendant’s declaration with evidence to support the
exercise of jurisdiction. If the plaintiff fails to do so, he cannot make
a prima facie showing of jurisdiction, and dismissal is proper.
¶83 The Tenth Circuit has demonstrated this principle in
action. See Am. Land Program, Inc. v. Bonaventura Uitgevers
Maatschappij, N.V., 710 F.2d 1449 (10th Cir. 1983). The American
Land Program plaintiff “alleged by unverified complaint that a
conspiracy existed.”
Id. at 1454. The defendants “countered by
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sworn affidavits that no conspiracy to defame existed.” Id. And the
plaintiff “failed to controvert defendants’ affidavits other than by
conclusory allegations in its complaint and briefs.”
Id. The district
court dismissed the conspiracy defendants for lack of personal
jurisdiction. See id. at 1451. The Tenth Circuit affirmed the dismissal
of the conspiracy defendants, reasoning that the plaintiffs had not
“asserted by affidavit that defendants conspired to commit any
overt act in Utah.” Id. at 1454; see also id. at 1454 n.2 (“On a motion
to dismiss for lack of personal jurisdiction, the plaintiff rather than
the movant has the burden of proof. He need not, however,
establish personal jurisdiction by a preponderance of the evidence;
prima facie evidence of personal jurisdiction is sufficient. . . . In this
case, plaintiff offered no sworn statements to contradict the
assertions in defendants’ affidavits.” (cleaned up)).
¶84 Much like what occurred in American Land Program, when
Breinholt submitted a declaration contesting the complaint’s
allegations, Justin needed to forward evidence of his own. Justin
did not, and that meant that Justin is left with just the allegations
that Breinholt either admitted or failed to controvert.
¶85 Justin’s complaint alleges that Breinholt:
• went to Traci’s home on the day of Tiffani’s funeral to
discuss “the subject of [Tiffani’s] death in connection with
[Justin] and [Traci, Ashley, and Sara Grace Lewis’s] mutual
desire to damage [Justin’s] reputation”;
• attended Tiffani’s funeral;
• combined at the funeral with the other defendants and
“discussed their mutual intention to damage [Justin’s]
reputation by publicizing unfounded accusations that he
had committed domestic violence against [Tiffani] and was
responsible for her death”;
• “reached an explicit or implicit meeting of the minds with
the other [d]efendants in this case . . . to defame [Justin] . . .
by publicizing unfounded accusations that he had
committed domestic violence against [Tiffani] and was
responsible for her death”; and
• posted another defendant’s GoFundMe link that raised
money for domestic abuse victims and added a photo of
Tiffani and a caption that said: “JUST AS I KNOW TIFF DID
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Opinion of the Court
FIGHT FOR US . . . I WILL FIGHT FOR HER. . . . IF YOU,
OR SOMEONE YOU KNOW IS IN AN ABUSIVE
RELATIONSHIP PLEASE REACH OUT. . . . NO MORE,
THIS CAN’T HAPPEN ANYMORE.”
¶86 Breinholt’s declaration specifically controverted most of
these factual allegations by asserting, under oath, that:
• she “ha[s] never been to Traci Phillips’ home” and was not
“present for the alleged discussion between Traci [], Sara
Grace Lewis, and Ashley”;
• during Tiffani’s funeral, she “did not discuss [Justin] or my
or anyone else’s intent to damage his reputation”; and
• she “never reached an explicit or implicit meeting of the
minds with any person . . . to defame Justin . . . by
publicizing unfounded accusations that he had committed
domestic violence against Tiffani [] or that he was
responsible for her death.”
¶87 Because Justin did not controvert Breinholt’s declaration,
the only allegations left on which the district court could premise
jurisdiction were that Breinholt was friends with Tiffani and some
of the defendants, attended Tiffani’s funeral, and posted a
GoFundMe link that raised money for domestic abuse victims after
adding a photo of Tiffani and a plea to reach out to domestic abuse
victims.
¶88 This is plainly insufficient to establish what Raser held a
plaintiff must demonstrate for a court to assert conspiracy
jurisdiction. The Raser court held that a plaintiff needs to, among
other things, show that the defendant is a member of a conspiracy,
and that the defendant could have reasonably anticipated that her
co-conspirator’s actions would connect the conspiracy to the forum
state in a meaningful way, such that she could expect to defend
herself in that forum. Raser Techs., Inc. ex rel. Hous. Phx. Grp., LLC v.
Morgan Stanley & Co., 2019 UT 44, ¶ 85,
449 P.3d 150.
¶89 To demonstrate that a defendant is a member of a
conspiracy, a plaintiff must plead, among other things, that the
defendant had a meeting of the minds about an object to be
accomplished with her co-conspirators. See Alta Indus. Ltd. v. Hurst,
846 P.2d 1282, 1290 n.17 (Utah 1993). After Breinholt’s declaration
narrowed the field, the surviving allegations fail to meet that
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standard. That is, once Breinholt declared under oath that she
reached no meeting of the minds, the allegations that she attended
a funeral and posted that she believed Tiffani was in an abusive
relationship do not establish that she joined a conspiracy to defame
Justin.
¶90 Justin disagrees and argues that Breinholt’s “post[] on
social media that Tiffani was a victim of domestic violence” is
sufficient for the court to infer that she had joined the conspiracy to
defame him. 9 In other words, Justin contends that Breinholt’s postfuneral conduct is consistent with a person who had entered into a
conspiracy, so he has alleged a prima facie case of conspiracy
jurisdiction.
¶91 While proof of parallel actions might possibly, in some
circumstances, allow a finder of fact to conclude the existence of a
conspiracy—a question we need not resolve today—bare
allegations of such actions are insufficient to permit the assertion of
personal jurisdiction over an out-of-state defendant where that
defendant has declared under oath that she did not reach a meeting
of the minds to conspire. See Pohl, Inc. of Am. v. Webelhuth, 2008 UT
89, ¶ 30,
201 P.3d 944.
¶92 As noted above, Breinholt’s declaration specifically
contradicts Justin’s allegation that she visited Traci’s home to
discuss how to defame Justin and “combined with other
[d]efendants” at Tiffani’s funeral to discuss “their mutual
intention” to defame Justin. The district court could not, in the face
of those sworn denials, reasonably infer from allegations of
Breinholt’s presence at Tiffani’s funeral that she engaged in the
alleged conspiracy. To ensure that we respect an out-of-state
defendant’s due process rights, once that defendant provides
evidence to contradict conspiracy jurisdiction allegations, a
plaintiff in Justin’s position needs to forward evidence to support
the allegations of conspiracy jurisdiction.
¶93 The district court erred when it concluded that it could
assert jurisdiction over Breinholt after Justin failed to introduce
evidence to support his jurisdictional allegations.
__________________________________________________________
9 Justin makes similar arguments regarding Daly, Majors,
Morgan, and Seymore. And for each appellant, we reach the same
conclusion for the same reasons.
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Opinion of the Court
B. Kim Cerchiai
¶94 Justin alleged that, at Tiffani’s funeral, Cerchiai read aloud
defamatory statements about him that the Phillipses wrote. Justin
additionally alleged, on information and belief, that Cerchiai had
“reached an explicit or implicit meeting of the minds” with the
other defendants to defame Justin “and cause him emotional
distress by publicizing unfounded accusations that he had
committed domestic violence against [Tiffani] and was responsible
for her death.”
¶95 Cerchiai’s declaration specifically contested Justin’s
allegations. It stated that her “public comments at the funeral
service were composed by myself and were not written or
co-authored by any other individual.” It also stated that Cerchiai
“never reached an explicit or implicit meeting of the minds with
any person . . . to defame Justin” and that she “did not agree to act
in concert with anyone to defame Justin [] while [she] was present
for the funeral service of Tiffani [] in Scottsdale, AZ.”
¶96 The district court concluded that under “the facts right
now and the inferences that I need to draw from those, however,
I’m not going to grant [Cerchiai’s] motion as to denial of conspiracy
theory [jurisdiction].” The court’s written order concluded it did
“not have specific personal jurisdiction over . . . Cerchiai under
Utah Code [] § 78B-3-205, but the [c]ourt does have specific
personal jurisdiction . . . based on a conspiracy theory of personal
jurisdiction.”
¶97 Cerchiai advances an argument that the other appellants
do not make. She claims that Justin’s “conclusory allegations of a
civil conspiracy involving [] Cerchiai, made only upon information
and belief, fail to comply with the heightened pleading standard
required by Utah law, and therefore fail to make a prima facie
showing that specific personal jurisdiction can be exercised over”
her. Justin responds that his complaint “provided the who, what,
when, and where regarding Cerchiai’s involvement in the
conspiracy[,] meets any definition of ‘specificity’ that exists,” and
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Opinion of the Court
“has thus met his burden of making a prima facie showing that
Cerchiai is a member of the conspiracy.” 10
¶98 Most civil claims only require a “short and plain:
(1) statement of the claim showing that the party is entitled to relief;
and (2) demand for judgment for specified relief.” UTAH R. CIV. P.
8(a). Claims subject to heightened pleading standards, like fraud,
are governed by Utah Rule of Civil Procedure 9. See, e.g., Bright v.
Sorensen, 2020 UT 18, ¶ 34 n.6,
463 P.3d 626 (noting rule 9’s
particularity requirement for certain claims “supplements but does
not supplant Rule 8’s notice pleading standard” (cleaned up));
Rawcliffe v. Anciaux,
2017 UT 72, ¶ 26 n.15,
416 P.3d 362. Rule 9
makes no mention of civil conspiracy.
¶99 But when Raser stated that the “complaint must set forth
reasonably definite factual allegations, either direct or inferential,
regarding each material element needed to show a civil
conspiracy,” we created a standard that, for the purpose of
asserting jurisdiction over an out-of-state defendant, civil
conspiracy needs more than what rule 8 requires. 2019 UT 44, ¶ 87;
id. ¶ 87 n.27. To be sure, Raser does not stand for the proposition
that any claim of civil conspiracy must meet a heightened pleading
standard. It is only when a plaintiff seeks to use allegations of a
conspiracy to attribute a co-conspirator’s contacts to an out-of-state
conspirator that Raser’s dictates come into play.
¶100 We do not need to sort out whether the bare allegations of
Justin’s complaint would meet the heightened standard Raser
describes. This is because, as we have just discussed, the paradigm
shifted once Cerchiai submitted a declaration contesting Justin’s
allegations. Once that happened, the question became one of the
evidence on each side of the jurisdictional equation. And, as with
__________________________________________________________
10 Unlike his arguments regarding the other appellants, Justin
does not argue that we can infer Cerchiai had a meeting of the
minds with the other appellants to defame him. Justin instead
contends that when Cerchiai delivered the funeral speech allegedly
written by the Phillipses, “[s]he instantly became an active member
of the conspiracy.” As we further explain below, because Cerchiai
controverted by documentary evidence that the Phillipses wrote
her speech, and Justin provided no evidentiary opposition, the
allegations of Justin’s complaint fail to establish conspiracy
jurisdiction over Cerchiai.
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Opinion of the Court
Breinholt, Justin’s failure to put evidence of his own into the record
made for a one-sided affair.
¶101 Cerchiai’s declaration specifically refuted Justin’s
allegations about who wrote the speech she read at Tiffani’s
funeral. Cerchiai also refuted the allegation that she had combined
with the other defendants to defame Justin with domestic violence
accusations. The only material allegations from Justin’s complaint
that survive Cerchiai’s refutations are that Cerchiai was Tiffani’s
friend and that she spoke at Tiffani’s funeral.
¶102 Just as with Breinholt, Justin’s uncontroverted allegations
about Cerchiai do not make a prima facie showing of jurisdiction
under a conspiracy theory. The district court erred when it
concluded that it could assert jurisdiction over Cerchiai.
C. Leanne Daly
¶103 Justin’s complaint fails to specifically name Daly as a
conspirator. It instead alleges, on information and belief, that
“Breinholt combined with the other [d]efendants in attendance [at the
funeral and] met and discussed their mutual intention to damage
[Justin’s] reputation by publicizing unfounded accusations that he
had committed domestic violence against [Tiffani] and was
responsible for her death.” (Emphasis added.)
¶104 The complaint also alleges that
Upon information and belief, . . . Breinholt reached an
explicit or implicit meeting of the minds with the other
[d]efendants in this case . . . to defame [Justin] and place
him in a false light and cause him emotional distress
by publicizing unfounded accusations that he had
committed domestic violence against [Tiffani] and
was responsible for her death.
(Emphasis added.) One can only consider Justin to have alleged
Daly was a co-conspirator if she is one of the “other [d]efendants in
attendance” at Tiffani’s funeral or one of the “other [d]efendants in
this case.”
¶105 Daly’s declaration stated that she “attended Tiffani’s
funeral” and that she posted the following on a social media site:
“The best birthday gift that we can give our beautiful little [Tiffani
and Justin’s minor daughter] is to ensure that her Mom’s legacy
lives on to help other victims of abuse . . . victims that still have the
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chance to be saved.” Daly’s declaration also stated that she “did not
‘combine’ or meet with any other person or group of people at
Tiffani’s funeral to discuss a mutual intention to damage Justin’s
reputation or to publicize unfounded accusations that he had
committed domestic violence against Tiffani and was responsible
for Tiffani’s death.”
¶106 The district court declared during oral argument that it
was “ruling that there is barely enough to survive a Rule 12(b)
motion at this time.” The court’s written order concluded that the
court could assert jurisdiction over Daly under a conspiracy theory
of jurisdiction.
¶107 Daly argues that the submission of her declaration
controverting Justin’s allegations required him to “submit
adequate evidence making a prima facie showing that the court
ha[d] personal jurisdiction over” her, and his failure to do so meant
“there was no dispute regarding the facts presented in Daly’s”
declaration. Daly is correct.
¶108 In what by now must be a familiar refrain, Daly’s
contestations by documentary evidence triggered Justin’s burden
to provide documentary evidence controverting Daly’s
declaration. See Anderson, 807 P.2d at 826–27. Justin did not submit
opposing affidavits or declarations. Nor did he verify his
allegations on the record. This means the district court could only
look to the complaint’s uncontroverted allegations to assess
jurisdiction. Justin’s only material uncontroverted allegations
against Daly are that she is a friend of Tiffani and the Phillipses and
that she posted a message that identified Tiffani as a domestic
abuse victim.
¶109 Justin contends that Daly’s refutations by declaration are
“unavailing and should be rejected” because her post claiming
“Tiffani was the ‘victim of abuse’ . . . infer[entially] accuses Justin
of domestic violence.” Justin misses the mark. The relevant
question for jurisdiction is whether Daly had minimum contacts
with Utah as a member of a conspiracy such that she could have
reasonably anticipated that a Utah court might exercise jurisdiction
over her. If Justin had come forward with evidence that Daly had
conspired with the other defendants to defame him, there might
have been a dispute as to whether he was the subject of the post
such that it could be considered a step to further the conspiracy. In
the absence of evidence that Daly joined a conspiracy, whether
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Opinion of the Court
Daly’s post inferentially accused Justin of domestic violence has
little value in the jurisdictional calculation.
¶110 Justin’s uncontroverted allegations failed to make a prima
facie case of the district court’s jurisdiction over Daly. It was error
for the court to conclude that it could assert jurisdiction over Daly
under a conspiracy theory.
D. Marco Majors
¶111 Justin alleged, on information and belief, that Teal Marie
Deegan “reached an explicit or implicit meeting of the minds with
other [d]efendants in this case, in particular . . . Marco Majors.”
Justin asserted that the object of the conspiracy was “to defame
[Justin] and place him in a false light and cause him emotional
distress by publicizing unfounded accusations that he had
committed domestic violence against [Tiffani] and was responsible
for her death.”
¶112 Justin also alleged that Majors reposted a message to a
social media site that stated, “Be Strong For My Cousin Tiffani . . .
DV Abuse Is Very Real.” Justin further alleged that Majors
reposted:
We will not stop until we seek justice for Tiffani! Stop
domestic abuse . . . if you know someone that is in an
abusive relationship, please reach out to them and
offer help! . . . Tiffani was so loved by many, and
without a doubt will [sic] keep fighting for her.
Justin contends that these posts are evidence of Majors’s
participation in a conspiracy to defame him.
¶113 Majors’s declaration admitted that he attended Tiffani’s
funeral. But Majors’s declaration also maintained that he “did not
‘combine’ or meet with any other person or group of people at
Tiffani’s funeral to discuss a mutual intention to damage Justin’s
reputation or to publicize unfounded accusations that he had
committed domestic violence against Tiffani and was responsible
for Tiffani’s death.”
¶114 The district court held that the complaint’s allegations “are
enough under these facts to deny, right or wrong, [Majors’s]
motion as to conspiracy [jurisdiction].” And the court’s written
order concluded that “it does not have specific personal jurisdiction
over [] Majors under Utah Code [] § 78B-3-205 but [it] does have
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specific personal jurisdiction over [] Majors based on a conspiracy
theory of personal jurisdiction.”
¶115 As with the other appellants, Majors’s declaration
contesting the jurisdictional facts triggered Justin’s burden to
provide evidence controverting Majors’s declaration. See Anderson,
807 P.2d at 826–27. Justin failed to submit a counter-declaration to
the district court. This means there was no dispute about the
jurisdictional facts concerning Majors. Majors’s refutations
controlled where they specifically contradicted Justin’s allegations
against him.
¶116 The only allegations that the district court could consider
are that Majors attended Tiffani’s funeral and posted to social
media the messages we outlined above. These factual allegations,
even after making all reasonable inferences favorable to Justin, do
not establish a prima facie case of jurisdiction under a conspiracy
theory. The district court erred when it denied Majors’s motion to
dismiss.
E. Nancy Morgan
¶117 Justin alleged, on information and belief, that Traci and
other defendants “reached an explicit or implicit meeting of the
minds” with Morgan to defame Justin and “place him in a false
light by publicizing unfounded accusations and statements
implying that he had committed domestic violence” against Tiffani
and was responsible for her death.
¶118 Justin also alleged that after the funeral, Morgan reposted:
We will not stop until we seek justice for Tiffani! Stop
domestic abuse . . . if you know someone that is in an
abusive relationship, please reach out to them and
offer help! . . . Tiffani was so loved by many, and
without a doubt will [sic] keep fighting for her.
¶119 Morgan’s declaration stated, “I have not conspired with
the other [d]efendants in this case to convince or persuade others
that [] Justin [] had committed domestic violence against or was
culpable for the death of Tiffani.” It went on to state,
I did not meet with the other [d]efendants or agree to
spread word in . . . [Justin’s] community and on social
media that Tiffani [] was a victim of domestic
violence, that . . . [Justin] committed domestic
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Opinion of the Court
violence against [Tiffani], and that . . . [Justin] was
responsible for [Tiffani’s] death.
¶120 The district court concluded that, based on Morgan’s post
and the use of the word “we,” there was “an inference that would
lead the [c]ourt [to believe] that there was a conspiracy,” and that
Morgan “could have reasonably anticipated that her
co[-]conspirators’ actions would connect the conspiracy to [Utah].”
The court ruled that there was “no specific jurisdiction as to []
Morgan, but there is jurisdiction under a co[-]conspiracy theory.”
¶121 Like the conspiracy jurisdiction appellants above,
Morgan’s declaration prompted Justin’s burden to provide
evidence controverting Morgan’s declaration. See Anderson, 807
P.2d at 826–27. And Justin’s identical lack of response ends in the
same result. Without a counter-declaration from Justin, the
refutations made by Morgan’s declaration whittle down Justin’s
allegations to a point where they are insufficient to establish a
prima facie showing of jurisdiction under a civil conspiracy theory.
¶122 Justin’s uncontroverted allegations against Morgan are
that she is related to Tiffani and the Phillipses, she made the social
media post referenced above, and she commented on a social
media post about Tiffani, stating “[w]e will not rest until we have
justice for our Tiffani.” As with the other conspiracy jurisdiction
appellants, this is insufficient to establish that Morgan is subject to
jurisdiction in Utah under a conspiracy theory.
¶123 The district court erred when it denied Morgan’s motion
to dismiss.
F. Amanda Seymore
¶124 Justin alleged that close to the day of Tiffani’s funeral,
Seymore wrote on Facebook:
I still can not [sic] and will not accept this going
without Tiff’s voice being HEARD. If you haven’t
called yet, call. If you have called, call again. And
again. For her families [sic] sake, for her children’s
sake.[] SPEAK for Tiffani. Detective Dove was “off
duty” so continued on dispatch, got to chiefs
voicemail and finally spoke to lieutenant Page
possibly Paige, didn’t confirm spelling and can’t find
his standing in Utah after a deep long search.[] . . .
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Speak up, speak out. The case is still open for a
reason!!! Utah police department- (435) 986-1515,
press 1 for non emergency dispatch and hold for a
dispatcher, then ask for Detective Dove for
Lieutenant Page/Paige []. Any voice heard is a voice
worth hearing. They need feedback, they need you!!!
¶125 Justin alleged that Seymore could only have known about
the detective by contacting a defendant related to Tiffani. Justin
also alleged that “Seymore engaged in a discussion [via Facebook
comments] with” defendants who have now been dismissed,
“celebrating the effect their collective posts were having on . . .
[Justin’s] reputation.” Justin pointed to a reply Seymore made to a
comment where she stated, “They’re [sic] reputation is not worth
Tiffani’s life.”
¶126 Finally, Justin alleged
Upon information and belief, Amanda Jean Seymore
reached an explicit or implicit meeting of the minds
with the other [d]efendants in this case, in
particular[,] [d]efendants Traci Phillips [and] Ashley
Phillips[,] . . . to defame [Justin] and place him in a
false light and intentionally cause him emotional
distress by publicizing unfounded accusations that
he had committed domestic violence against [Tiffani]
and was responsible for her death.
¶127 Seymore’s declaration stated, “I did not attend Tiffani[’s]
[] funeral.” Her verified reply averred that “Seymore has not had a
meeting of the minds of any kind, implicit or explicit, with any of
the other [d]efendants in this matter to act together in any manner
whatsoever. . . . and she certainly has not conspired with any other
[d]efendant to attempt to harm [Justin].”
¶128 The district court denied Seymore’s motion, stating that
the inferences that the court “believes are reasonable under the
facts and arguments made supports” the denial of the motion to
dismiss. The court found “that there is enough evidence to get over
the initial hump to find that there is conspiracy theory jurisdiction.”
¶129 Justin asserts that Seymore’s Facebook comments
“implicitly acknowledge[d] membership and participation with
the group by simply responding that Justin’s reputation (the target
of the conspiracy) was not worth Tiffani’s life.” He further contends
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that Seymore’s post directing people to contact Detective Dove—
who, according to Justin, was the Utah detective investigating
Tiffani’s death—is evidence that Seymore was in a conspiracy with
the Phillipses. Justin specifically argues that Seymore’s post shows
“she had information that would only be privy to a family-member
defendant,” implying “that she knew and spoke with family-member Co-Conspirators that are masterminds of the conspiracy.”
¶130 Because Seymore specifically controverted Justin’s
allegations with documentary evidence—a declaration attached to
her motion to dismiss and her verified reply to the motion to
dismiss—Justin needed to supply his own evidence to create a
dispute. See Anderson, 807 P.2d at 826–27; supra ¶ 41 n.4 (explaining
why verified replies can be relied upon like a declaration). Justin
failed to supply a declaration, and he declined to verify his
complaint on the record. See supra ¶ 42–43. The court should not
have considered any of Justin’s allegations that were specifically
contradicted by Seymore’s declaration and verified reply.
¶131 This left only allegations that Seymore is a friend of
Tiffani’s and other appellants, engaged in a public Facebook
comment conversation about Justin’s family, and posted to social
media asking people to call a Utah detective who Justin asserts was
investigating Tiffani’s death and that Seymore could only have
learned of the detective from a defendant related to Tiffani.
¶132 As with the other conspiracy jurisdiction appellants, this
was insufficient to assert jurisdiction. Raser requires that a plaintiff
demonstrate, among other things, that the defendant entered into
a conspiracy and the defendant could have reasonably anticipated
that her co-conspirator’s actions would connect the conspiracy to
Utah such that she could expect to defend herself in that forum.
2019 UT 44, ¶ 85. After Seymore’s declaration refuted Justin’s
allegations, there existed insufficient evidence to permit the district
court to conclude, for the purposes of personal jurisdiction, that
Seymore entered into a conspiracy to harm Justin’s reputation. The
district court erred when it denied her motion to dismiss.
CONCLUSION
¶133 Traci and Ashley Phillips sought interlocutory review,
arguing that the district court improperly concluded that it had
personal jurisdiction over them under a conspiracy theory of
jurisdiction. We granted review only to discover that the district
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Opinion of the Court
court never reached that question with respect to them. The court
instead concluded that Traci’s and Ashley’s own contacts with
Utah gave rise to specific personal jurisdiction. Because Traci and
Ashley did not seek review of the question on which the district
court ruled against them, we dismiss their petitions as
improvidently granted. We offer no opinion about the district
court’s assertion of personal jurisdiction over them.
¶134 The district court erred when it determined that Breinholt,
Cerchiai, Daly, Majors, Morgan, and Seymore are subject to
jurisdiction in Utah under a conspiracy theory of jurisdiction. We
reverse the denial of their respective motions to dismiss and
remand to the district court. 11
__________________________________________________________
11 We note that Justin asked the district court to permit limited
jurisdictional discovery. In his appellate briefing, Justin argued that
if we ruled against him, we should order the district court to permit
that jurisdictional discovery. We also note that some defendants
moved for a dismissal with prejudice and others without. See supra
¶ 8 n.2. “The district court is entrusted with broad discretion in
dealing with discovery matters.” In re Discipline of Pendleton, 2000
UT 77, ¶ 38,
11 P.3d 284. This opinion does not foreclose an
argument from Justin that he should be permitted jurisdictional
discovery. Nor does it prevent a defendant from arguing that the
district court should enter a dismissal with prejudice.
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