                                                                           FILED
                              NOT FOR PUBLICATION                           JAN 26 2010

                                                                        MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                    U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT

KIMBERLY BONNELL, individually and                No. 08-17468
as Special Administrator to the Estate of
Mary Hayducka; NELSON HAYDUCKA,                   D.C. No. 2:08-cv-00910-PMP-
individually,                                     LRL

                Plaintiffs - Appellants,
                                                  MEMORANDUM *
  v.

CABO AZUL RESORT, a timeshare
resort; PACIFIC MONARCH RESORT,
INC., a registered foreign corporation in
the State of Nevada, doing business in
Nevada; RESORT, defendants,

                Defendants - Appellees.



                      Appeal from the United States District Court
                               for the District of Nevada
                        Philip M. Pro, District Judge, Presiding

                        Argued and Submitted January 14, 2010
                              San Francisco, California

Before: BRIGHT, ** HAWKINS, and M. SMITH, Circuit Judges.


            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9 TH C IR. R. 36-3.

       **    The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.
      Appellants brought suit against defendant-appellee Pacific Monarch Resort,

Inc. (PMRI) and others in Nevada state court for negligence based on premises

liability and failure to warn. PMRI removed the case to federal court. On PMRI’s

motion, the district court dismissed the suit for lack of personal jurisdiction.

Appellants challenge that dismissal. We vacate and remand.

      This court reviews de novo a dismissal for lack of personal jurisdiction.

Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006). Where, as here,

a trial court rules on personal jurisdiction without holding an evidentiary hearing, a

plaintiff need only establish a prima facie showing of personal jurisdiction. See id.

      There are two limitations on a court’s power to exercise personal jurisdiction

over a nonresident defendant: the applicable state long-arm statute and

constitutional principles of due process. Sher v. Johnson, 911 F.2d 1357, 1360

(9th Cir. 1990). Nevada’s long-arm statute reaches the limit of federal

constitutional due process, and thus the only relevant inquiry is whether due

process prohibits the exercise of jurisdiction over PMRI. Myers v. Bennett Law

Offices, 238 F.3d 1068, 1072 (9th Cir. 2001). Due process requires that a

defendant have certain minimum contacts with the forum state “such that the

maintenance of the suit does not offend traditional notions of fair play and




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substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)

(internal quotations omitted).

      Requiring PMRI to defend this suit in Nevada federal district court does not

violate due process. PMRI has a presence in Nevada, is registered and conducts

business in Nevada, and the timeshare purchase giving rise to this suit occurred in

Nevada.

      On the premises liability claim, the district court should have allowed

discovery to determine PMRI’s ownership relation to the Cabo Azul Resort. This

issue relates to the merits and not jurisdiction. The failure to warn claim is not

dependent on ownership and is sufficiently well pled to proceed. We therefore

vacate the order dismissing appellants’ suit for lack of personal jurisdiction over

PMRI and remand for further proceedings.

      VACATED AND REMANDED. Costs on appeal are awarded to

appellants.




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