IN BAZARO WORLD OF ARIZONA DIPLOMA MILL PH.D/MBA'S DONT GET JURISDICTION
I was shocked that Davidson and Hensley cases where dismissed for lack of jurisdiction in Arizona. Me on the other had emailed the Attorney General about Davidsons Diploma Mill degree and I have my case go forward because of it. What a backwards Third World Country Arizona is. Crooks who claim they are authorities and pass themselves off as a fake Pd.D/mba get special consideration where citizens who report things to Gov loss get different treatment. Real Bazaar since Snell and Wilmer where their patient attorneys for the fake Docter R. Steven Davidson. But I keep finding new items. Wonder why this was not disclosed to Matrixx shareholders? "$1.7M was stolen by the past CFO,"
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Attorney, Agent or Firm: Snell & Wilmer L.L.P.
United States Patent 6,673,835
Hensley , et al.
Inventors: Hensley; Charles (Woodland Hills, CA); Davidson; Robert Steven (Woodland Hills, CA)
Assignee: Zicam LLC (Phoenix, AZ)
Appl. No.: 388816
Filed: September 1, 1999
patft.uspto.gov
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"The full paragraph is as follows: “Fundraising to date – 6
the Board asked about the 2 rounds of financing to date and [board
member Johnson] Liu identified round 1 as $4.5M at $1.00/share and
round 2 as $7.25M at $2.50/share. Of this, he indicated $4M was
spent on the Gel Tech advertising, $2M on the Gel Tech acquisition,
$1.7M was stolen by the past CFO, $3M was GAO associated expense to
date and $700,000 had been spent in toto on attorneys fees; the
monthly burn rate is near $200,000.00.”"
cofad1.state.az.us
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
IN RE CONSOLIDATED ZICAM PRODUCT
LIABILITY CASES
ANABEL BENTLEY, a single woman; RODNEY
C. BRITT and COLEEN D. BRITT, husband
and wife; and TERRENCE D. WOODRUFF and
CAROL DEE WOODRUFF, husband and wife,
TAMMY RINGBAUER, JANARA J. ABRAMSEN,
ARTHUR J. BALOG, SHARLENE BECK, JUDY L.
BEDINGFIELD, RONALD R. BELL, ROBERT R.
BENTON, RANDALL B. BUSH, KATE M.
BUSWELL, FRANK M. BUTTIGIEG, MICHAEL E.
CANNAN, JOAN L. COMES, JAMES E.
CONNELLY, JOHN C. COX, LAURA A. CRIPE,
STEVE B. CROUCH, TRANCY M. CRUCITTIPORTER,
DANNY S. CURTIS, RICHARD J.
DALY, ANDREW N. DENNISON, DAVID A.
EDLUND, LESLIE A. ENGEN, ANA MARIA
ESTEVEZ, JERRY FELTS, FRANNI M. FERRERO,
PATRICIA A. GARCIA, DALE W. GARTEN,
MOREY GROSSE, MARTHA K. HADLEY, DONNA K.
HALLEY, GRETCHEN HERD, LEA J. HOUSE,
DEBRA A. HURLEY, PAULA V. JACKSON,
MATTHEW KARP, MARK L. KENYON, REGINA C.
LAWRENCE, DONALD F. LLEWELLYN, VICKEY W.
MAPLES, JANIS H. MCKENZIE, RICHARD H.
MONTE, JIMMY D. MOORING, DEBORAH MORRIS,
RAYMOND P. ONIDI, SANDRA ORR, KATHRYN J.
PLATNER, SALLY I. POWELL, AVIAN T.
QUOCK, RICHARD N. RAY, JAMES T. SCHERZ,
BARBARA A. SCHIAVONE, BRIAN SMITH, MARY
ANN SPENCE, KENT D. STARK, NOEL H.
STOCK, KATHLEEN TAORMINA, JUDITH A.
TART, BELINDA K. TAYLOR, MICHELLE D.
THOMAS, DONNA G. VAN DRIES, RICHARD W.
WAGNER, GREGORY W. WARREN, ROSA M.
WEITZEL, COLLEEN L. WHITEFORD, SANDRA A.
WUTSCH, LUCY B. LUTCHE, EDWIN R. ADAMS
JR., MARY JEAN ANDERSON, BENJAMIN
ARMSTRONG, LINDA L. BAYLEY, CAROLYN E.
BENNETT, ROBERT J. BEZIO, KEVIN
BODDICKER, KATHLEEN BOLTON, GINGER L.
BOYD, CATHY BRIGHT, RUTHIE CARR, GARLAND
CASTANEDA, MERRY CIBULA, MARGUERITE M.
COCHRAN, MARIANA COKU, THOMAS C. COOPER,
GARY R. CUVELIER, CHRISTOPHER H. DAY,
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1 CA-CV 05-0196
DEPARTMENT E
O P I N I O N
2
JAMES deGIVENCY, RAJEN DESAI, ANN MARIE
DOSCHE-WILLING, MELANIE A. DUVALL, VAL
DZIAGWA, WANDA ESTES, DOROTHY FELTON,
DAVID E. FIELD, ELANA FINE, CLAUDE
GASPARD, FRANK GILBERT, RHONDA I.
GRAEBER, DENNIS GREENSTEIN, MATTHEW V.
HAMMARLUND, JOANNE M. HANSON, LAWRENCE
HANSON, ALLEN N. HAWLEY, JACK R.
HENDRIXSON, MARGARET HENSLEE, KERMIT G.
HICKMAN, KELLY HOOVER, PAULA HUBSCH,
GLENN L. JETTON, HERSCHEL R. JOHNSON,
JOYCE L. JURGENSEN, KATHLEEN M. KERR,
NORBERT M. KHALIFA, MARYON F. KING,
AUDREY A. KOVAL, JENNIFER KRUGER,
PERNELL LARSON, DONNA G. LAYCOCK, DANIEL
LEVIN, SUSAN C. LYONS, DANIEL MALLOY,
RAOUL K. MANGRUM, WALTER MARAIST, EILEEN
MCCLAUGHLIN, DON MCCOLLOUGH, SHERRI B.
MESSIMER, AGNES MIKEL, MARY MORRIS,
PHILLIP E. MURRAY, LEE O’NEAL, PAUL
PAGE, GARY L. PASSMORE, COAST D.
PAULINE, MARTA PLUTA, BARRY RABSON,
CARLOS RAMOS, DONNA J. REYNOLDS-MILLER,
RUTH ROBINSON, MARLA J. ROSENBERG,
MARION T. ROWLAND, NOREEN R. SADLER, H.
JOE SHIMPFKY, CLAUDE W. SHIRES,
ELIZABETH A. SIMS, LORRAINE SORENSEN,
STEHPANIE L. SUGAR, ALAN TORPPA, ADOLPH
J. VOIGT, JANINE WALLACE-MEHTA,
ELIZABETH D. WAMPLER, JOHN WANKNER,
SHERRI WEDEL, SUSAN WEISS, CONSETTA
WELLS, MARY WEST, JUDY ZORN, DAVID
ZUEGER, JOHN DOUILLARD, JODI HUNTER,
CAROL JAPNGIE, TINA KIRKHAM, RICHARD
MILLER, MARY MULHERN, DIANE RUSSELL,
JULIE SCHOCH, REBECCA AKERS, W. FRANK
ALEXANDER, JAKE H. ARMSTRONG, PAUL R.
BATHOLOMEW, FRED BECHT, JAY O. BENNETT,
SUSAN D. BESELIN, ALISON M. BOTELER,
BRUCE BOWLER, KOLLEEN BRIGANCE, KAY
BRINKLEY, ELAINE N. BROGOITTI, WILLIAMS
BURKETT, LAVENIA L. BURLESON, NANCY
BYRNES, ROBERT CAREY, JACK D. CARTER,
EMILY O. CHADWICK, RODNEY CHAVEZ,
PHILIP J. CHIAPPINI, JULIEN COOK, YVONNE
F. CROUSE, EUGENE E. CURRY, GERI C.
DAVIS, SUZANNE DAY, LORRAINE DESIERVO,
ROBERT K. DEWITT, GRETCHEN M. DITTRICH,
))))))))))))))))))))))))))))))))))))))))))))))))
3
MARIE ECKERT, DIANE M. ESCH, RICHARD
ESPINOZA, ROBET A. FOSTER, DAVID
FRANZEN, EMERY W. FREEMAN, GEORGIA
FRESHWATER, JILL D. GILLESPIE, ROBERT E.
GILLIS, KATHRYN J. HACKETT, ANN M.
HEPWORTH, SHARON E. HICKOX, SANDRA L.
HINSON, SHERRY HOLLADAY, CYNTHIA HUCKO,
DON JACOBS, MIHAELA R. JARDINI, NANCY C.
JOHNSON, JENNIFER JORDAN, DAWN KENWARD,
DOROTHY LAGRONE, BETTY L. LAUCHLAN, JODY
LERNER, WILLIAM R. LEWIS, JUDY H. LEWIS,
AMY J. LIETZ, LUCIA MALENKY, MARY ANN
MARTINOVSKY, LORANE MATTARAZO, HILARIA
I. MCALLISTER, LOIS MCGUIRE, MILLIE L.
MCKELVY, ROBERT S. MCCLEAN, MARY M.
MELCHOR-LUDWIG, ERIC T. MILLER, CAROL
MINER, MEREDITH L. MOON, CONNIE A.
MOREHOUSE, JOHN MORRIS, GREGG C.
NEWQUIST, JANICE OTTOSEN, VINCENT
PACIFICO, LINDA POPE, KATHY S. POPEJOY,
ALLYSON C. POWELL, SAMUEL S. RAMIREZ,
CHARLES E. RAMSAY, RUTH E. RICHARDS,
JOHN V. ROBINSON, CINDY M. ROSSI, CAROL
RUETTINGER, LINDA L. RYAN, JONATHAN
SCHACHTER, MATTHEW F. SOLATKA, CATHERINE
P. TEUTSCH, RONALD O. THOMPSON, TRACY L.
TODARO, on behalf of herself and her
minor child, KYLA J. TODARO, ELISA M.
UMPIERRE, DEBBIE VENDEN, CURTIS WARD,
ROBERT L. WEIBUSH, RAYMOND D. WEIMER,
JEANINE WILSON, MELVIN WYMAN, GEBI
YEMANE-BERHANE, MARGARET YOUNG, WILLIAM
G. ZARLENDO JR., and DAVID J. ZIMMERMAN,
Plaintiffs-Appellants
v.
ZENSANO, INC., sucessor by merger to
BioDelivery Technologies, Inc.; and
ZENGEN, INC.,
Defendants-Appellees.
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There are other defendants who remain in the litigation, 1
but, since they are not parties to this appeal, we will simply
refer to Zensano and Zengen as if they are the only defendants.
4
Appeal from the Superior Court in Maricopa County
Cause Nos. CV2004-001338, CV2004-002822, CV2004-004415,
CV2004-008704, CV2004-008929, CV2004-010830, CV2004-016010,
CV2004-008950 (Consolidated)
The Honorable F. Pendleton Gaines, III, Judge
AFFIRMED
Zimmerman Reed PLLP Scottsdale
By Barry Reed, Hart L. Robinovitch
and
Williams Dailey O’Leary Craine & Love, P.C. Portland, Oregon
By Brian Campf
and
Bush Lewis PLLC Beaumont, Texas
By Kenneth W. Lewis and Sonya Coffman
and
Weller Green Toups & Terrell, LLP Beaumont, Texas
By Mitchell A. Toups
and
Alexander Hawes & Audet LLP San Jose, California
By Joshua Ezin
Attorneys for Plaintiffs-Appellants
Richard W. Shapiro PLC Phoenix
By Richard W. Shapiro
Attorneys for Defendants-Appellees
E H R L I C H, Judge
¶1 Numerous individuals (collectively “the plaintiffs”) have
appealed the superior court’s judgment dismissing with prejudice
their complaints against Zensano, Inc., and Zengen, Inc.
(collectively “the defendants”). The court ruled that it lacked 1
personal jurisdiction over the defendants and that the plaintiffs
Alaska, Arkansas, California, Colorado, Georgia, 2
Illinois, Iowa, Michigan, Nevada, New York, North Carolina, Ohio,
Oklahoma, Pennsylvania, South Carolina, Texas and Washington.
5
had failed to state a claim for relief against the defendants. For
the reasons discussed below, we agree with the court that it was
without jurisdiction, and we therefore affirm the judgment without
addressing the merits of the second contention.
BACKGROUND
¶2 The plaintiffs filed lawsuits in the Superior Court of
Arizona (Maricopa County) alleging that their use of Zicam Cold
Remedy Nasal Gel (“Zicam”) had caused the permanent impairment or
loss of their senses of smell and taste because of the toxicity of
the product’s active ingredient, zinc, to the olfactory epithelium.
The plaintiffs resided not only in Arizona but in seventeen other
states, and they asserted causes of action for strict products 2
liability (unreasonably dangerous condition and failure to warn),
negligence, breach of warranties, fraud, consumer fraud and
negligent misrepresentation against the defendants, both directly
and on a theory of vicarious liability. The several lawsuits were
consolidated.
¶3 Zicam is manufactured by Gel Tech, an Arizona limited
liability company (“LLC”). Zengen is the parent corporation of
Zensano; both are California companies with their principal places
of business in that state. On December 26, 2000, Zensano merged
with Gel Tech member BioDelivery Technologies, Inc., also a
Gum Tech was Nekros International Marketing, Inc., a Utah 3
corporation; it is now Matrixx Initiatives, Inc., a Delaware
corporation. Gel Tech is now Zicam, LLC, an Arizona company. Also
involved is Botanical Laboratories, Inc.
6
California corporation, and, as the surviving company, Zensano
succeeded to BioDelivery’s 40% interest in Gel Tech. A year later,
Gum Tech International, Inc., acquired Zensano’s 40% interest in
Gel Tech. 3
¶4 The defendants moved to dismiss the plaintiffs’
complaints on the basis that the superior court lacked jurisdiction
over the defendants because the companies had not engaged in any
activities in Arizona sufficient to give rise to the plaintiffs’
claims. The defendants also moved to dismiss the complaints
because the plaintiffs had failed to state any cause of action
against them.
¶5 The superior court gave the plaintiffs additional time in
which to obtain the evidence necessary to justify a good-faith
opposition to the defendants’ motion pursuant to Arizona Rule of
Civil Procedure 56(f) (2001) because the defendants had filed
documents outside the complaints in support of their motion to
dismiss. The plaintiffs consequently conducted additional
discovery and filed a supplemental memorandum in opposition to the
defendants’ motion, referring to evidence that they claimed
demonstrated the defendants’ contacts with Arizona and independent
participation in the marketing and distribution of Zicam.
7
¶6 The superior court granted the defendants’ motion to
dismiss with prejudice “on both grounds raised, collectively and
independently,” and it entered final judgment as to the defendants.
See Ariz. R. Civ. P. 54(b) (2001). The plaintiffs timely appealed.
We have jurisdiction pursuant to Arizona Revised Statutes § 12-
2101(B) (2003).
DISCUSSION
¶7 The plaintiffs maintain that the superior court could
exercise specific jurisdiction over the defendants because of the
companies’ business activities with Gel Tech since it is an Arizona
LLC and because of their distribution and marketing of Zicam in
Arizona. The defendants respond that they lack the minimum
contacts with Arizona necessary to support jurisdiction because
they did not design, formulate, manufacture, distribute or sell
Zicam and because their business relationship with Gel Tech was
conducted solely in California. We review the facts in the light
most favorable to the plaintiffs, but we review de novo the court’s
legal determination that it lacked jurisdiction. A. Uberti and C.
v. Leonardo, 181 Ariz. 565, 566, 569, 892 P.2d 1354, 1355, 1358,
cert. denied, 516 U.S. 906 (1995).
¶8 When the defendants moved to dismiss the complaints for
lack of personal jurisdiction, the plaintiffs assumed the burden of
establishing that jurisdiction is proper. Coast to Coast Mktg. Co.
v. G & S Metal Prods. Co., 130 Ariz. 506, 507, 637 P.2d 308, 309
8
(App. 1981). The plaintiffs could not rest on the bare allegations
of their complaints; they had to come forward with facts supporting
personal jurisdiction. MacPherson v. Taglione, 158 Ariz. 309, 311-
12, 762 P.2d 596, 598-99 (App. 1988). If the plaintiffs made a
prima facie showing of jurisdiction, then the defendants had the
burden of rebuttal, id. at 312, 762 P.2d at 599, although any
contradictions had to “be resolved in [the plaintiffs’] favor for
purposes of determining whether a prima facie case for in personam
jurisdiction ha[d] been established.” Id. (quoting Wessel Co. v.
Yoffee & Beitman Mgmt. Corp., 457 F.Supp. 939, 940 (D.C. Ill.
1978)).
¶9 Arizona courts may exercise either general or specific
personal jurisdiction over non-resident defendants. General
jurisdiction subjects such defendants “to suit on virtually any
claim, ‘[e]ven when the cause of action does not arise out of or
relate to [their] activities’” in Arizona, but such jurisdiction
applies only when the defendants have “substantial” or “continuous
and systematic” contacts with Arizona. Rollin v. William V.
Frankel & Co., 196 Ariz. 350, 352-53 ¶9, 996 P.2d 1254, 1256-57
(App. 2000) (quoting Batton v. Tenn. Farmers Mut. Ins. Co., 153
Ariz. 268, 270, 736 P.2d 2, 4 (1987)). The plaintiffs have not
maintained that Arizona has general jurisdiction over the
defendants, and none of the traditional indicia of general
jurisdiction such as agents, personal presence, offices or property
9
in Arizona are present. See A. Uberti, 181 Ariz. at 569, 892 P.2d
at 1358.
¶10 Arizona courts may exercise specific personal
jurisdiction over non-resident defendants to the extent permitted
by the Due Process Clause of the United States Constitution. Ariz.
R. Civ. P. 4.2(a) (2001); A. Uberti, 181 Ariz. at 569, 892 P.2d at
1358. Due process is satisfied if (1) the defendants performed
some act or consummated some transaction with Arizona by which they
purposefully availed themselves of the privilege of conducting
activities in this state; (2) the claim arises out of or results
from the defendants’ activities related to Arizona; and (3) the
exercise of jurisdiction would be reasonable. Cybersell, Inc. v.
Cybersell, Inc., 130 F.3d 414, 416 (9th Cir. 1997).
¶11 “The ‘purposeful availment’ requirement ensures that
[defendants] will not be haled into a jurisdiction solely as a
result of ‘random,’ ‘fortuitous’ or ‘attenuated’ contacts, or of
the ‘unilateral activity of another party or a third person.’”
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (citations
omitted). Jurisdiction is only proper if the defendants may
reasonably anticipate that their conduct and connection with
Arizona may subject them to its jurisdiction. Bils v. Nixon,
Hargrave, Devans & Doyle, 179 Ariz. 523, 525, 880 P.2d 743, 745
(App. 1994). Moreover, the plaintiffs’ cause of action must arise
out of or relate to the defendants’ contacts with Arizona. “If the
The plaintiffs do not allege that Zensano’s membership 4
interest in Gel Tech alone is sufficient to subject Zensano to personal
jurisdiction in Arizona. See Cannon Mfg. v. Cudahy Packing
Co., 267 U.S. 333 (1925).
10
non-resident defendant[s’] forum-related activities ‘are not
sufficiently connected for [the] court to conclude that the
plaintiff[s’] claim arises out of’ those activities, dismissal is
warranted.” Rollin, 196 Ariz. at 354 ¶14, 996 P.2d at 1258
(quoting Westphal v. Mace, 671 F.Supp. 665, 668 (D. Ariz. 1987));
see also Chandler v. Roy, 985 F.Supp. 1205, 1212 (D. Ariz. 1997)
(The “arising out of” test is met if, “‘but for’ the contacts
between the defendant and the forum state, the cause of action
would not have arisen.”).
¶12 The plaintiffs identify six activities allegedly
demonstrating that the defendants directed marketing and business
activities toward Arizona sufficient to constitute “purposeful
availment” and therefore adequate to support Arizona’s exercise of
personal jurisdiction. We discuss each activity in turn. 4
1. $2 Million Cash Advance to Gel Tech
¶13 The plaintiffs allege that Zengen advanced $2 million to
Gel Tech. The documentation upon which they rely, however,
demonstrates only that Zengen gave the money to Gel Tech as a
capital contribution by BioDelivery “for use in funding Gel Tech’s
advertising and promotion” in exchange for BioDelivery’s promissory
note for repayment of the loan. The plaintiffs offer no evidence
11
that the loan was negotiated or that the funds were delivered in
Arizona. To the contrary, the record shows only that Zengen and
BioDelivery are California companies and that the promissory note
for the loan is governed by California law.
¶14 Moreover, the plaintiffs do not explain the causal
connection, if any, between Zengen’s loan and their causes of
action. Williams v. Lakeview Co., 199 Ariz. 1, 4-5 n.2 ¶13, 13
P.3d 280, 283-84 n.2 (2000) (The court would not assume, without
additional evidence, that a decision to employ or offer hotel
services to Arizona residents showed a purposeful availment of the
privilege of conducting business in Arizona.). The plaintiffs
therefore have not presented prima facie evidence that the
defendants had this contact with Arizona sufficient to support
personal jurisdiction.
2. $600,000 Loan to Gel Tech
¶15 The plaintiffs claim that Zengen loaned $600,000 to Gel
Tech, thereby directing money to an Arizona company. The
memorandum that they offer as evidence of this transaction,
however, does not demonstrate that either Zengen or Zensano in fact
loaned this money to Gel Tech. Rather, the memorandum documents a
request from Zengen’s corporate secretary to the Zengen Board of
Directors for the directors’ consent to a $1.5 million loan to Gel
Tech, of which amount “Zengen/Zensano as the forty percent owner of
Gel Tech” would be responsible for $600,000 “in order to meet [Gel
12
Tech’s] currently committed advertising campaign” “in support of
the Zicam cold product.” However, the plaintiffs have not provided
evidence that Zengen or Zensano even approved, let alone
effectuated, the loan proposed in this memorandum. Accordingly,
they have not satisfied their obligation to offer prima facie
evidence of a contact with Arizona.
3. Confidentiality and Non-Competition Agreement
¶16 Zengen and Zensano entered a Confidentiality and Non-
Competition Agreement (“Agreement”) with Gum Tech and Gel Tech in
connection with Zensano’s sale of its interest in Gel Tech to Gum
Tech. Although the plaintiffs assert that the Agreement is a
contact with Arizona sufficient to allow this state to exercise
personal jurisdiction over the defendants, they gave the superior
court only the Agreement without the exhibits and other documents
that the Agreement incorporates and to which it refers. As a
result, the record with regard to the Agreement contains nothing
having to do with Arizona other than that Gel Tech is an Arizona
LLC, a contact that itself is not sufficient. Again, the
plaintiffs have provided no prima facie evidence of the defendants’
contact with this state.
4. Assignment of Intellectual Property
¶17 On June 27, 2000, Zensano and two individuals, Zengen’s
President Charles Hensley and Gel Tech’s President and Chief
Executive Officer Robert Davidson, assigned Gel Tech the rights to
Advertising alone is usually not sufficient to support 5
the imposition of strict products liability. But see Torres v.
Goodyear Tire & Rubber Co., 163 Ariz. 88, 92, 786 P.2d 939, 943
(1990) (noting the “essence of production” test that might permit
liability).
13
and interests in Patent Number 6,080,783, entitled “Method and
Composition for Delivering Zinc to the Nasal Membrane” (“the
Assignment”). The Assignment states that it was executed in
California, where Davidson and Hensley resided and where Zensano
was located. The plaintiffs offered no evidence that the
Assignment in any way involved a contact with Arizona except for
Gel Tech’s status as an Arizona LLC. See Williams, 199 Ariz. at 4-
5 n.2 ¶13, 13 P.3d at 283-84 n.2. While they argue that the
methodology for Zicam is based on the process contained in Patent
6,080,783, they have not directed us to, and we have not found in
the record, any evidence that Zicam’s methodology is indeed based
on that patented process. Their unsupported allegation does not
constitute prima facie evidence sufficient for personal
jurisdiction.
5. $4 Million Advertising Payment
¶18 The plaintiffs claim that the defendants financed Gel
Tech’s advertising of Zicam in Arizona. To support this 5
allegation, they rely on a statement in the Minutes of a Special
Meeting of the Board of Directors of Zengen about a report from a
board member that “$4 [million] was spent on the Gel Tech
The full paragraph is as follows: “Fundraising to date – 6
the Board asked about the 2 rounds of financing to date and [board
member Johnson] Liu identified round 1 as $4.5M at $1.00/share and
round 2 as $7.25M at $2.50/share. Of this, he indicated $4M was
spent on the Gel Tech advertising, $2M on the Gel Tech acquisition,
$1.7M was stolen by the past CFO, $3M was GAO associated expense to
date and $700,000 had been spent in toto on attorneys fees; the
monthly burn rate is near $200,000.00.”
For example, the Introduction to the International 7
Distribution Agreement states that Gel Tech’s “principle [sic]
asset is the homeopathic cold remedy Zicam.” Also, the memorandum
from the Zengen corporate secretary requesting that the Zengen
Board of Directors consent to a $600,000 loan to Gel Tech states
that Gel Tech “produces the Zicam product line” and noted that the
proposed loan would be in support of the “Zicam cold product.”
Certainly neither Davidson’s deposition testimony that Gel Tech
advertised Zicam regionally nor his response that “I’m sure we had
advertisements nationally” when asked whether Zicam was advertised
in Arizona was sufficient to establish a prima facie showing that
any advertising of Zicam funded by the defendants reached Arizona.
Moreover, his complete testimony is not in the record, and the
plaintiffs do not cite this testimony in support of their argument
that Zengen spent this money on advertising Zicam.
14
advertising.” If we may infer from this document that Zengen 6
financed Gel Tech advertising, there nonetheless is no evidence
either that this money was spent to advertise Zicam, the product at
issue, or, if it were, whether the advertising was in Arizona.7
Therefore, the plaintiffs have not provided prima facie evidence of
a contact with Arizona giving rise to their claims.
6. International Distribution Agreement
¶19 The plaintiffs contend that the defendants distributed
Zicam internationally, citing a document entitled “Zensano, Inc.
Introduction To International Distribution” as well as an
International Distribution Agreement between Zengen and Gel Tech.
15
Even if this evidence were sufficient to establish that Zengen or
Zensano actually distributed Zicam internationally, see discussion
supra, it would not establish a contact with Arizona giving rise to
the plaintiffs’ claims, see Williams, 199 Ariz. at 4-5 n.2 ¶13, 13
P.3d at 283-84 n.2, and, therefore, does not support Arizona’s
exercise of personal jurisdiction.
CONCLUSION
¶20 The plaintiffs did not establish a prima facie case for
personal jurisdiction. MacPherson, 158 Ariz. at 311-12, 762 P.2d
at 598-99. The superior court therefore did not err in granting
the defendants’ motion to dismiss the complaints with prejudice.
The judgment is affirmed.
_____________________________
SUSAN A. EHRLICH, Judge
CONCURRING:
___________________________________
PATRICIA A. OROZCO, Presiding Judge
___________________________________
ANN A. SCOTT TIMMER, Judge |
