Full Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DAMIEN DERNONCOURT, No. 88890-1-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION UBS AG, Respondent. HAZELRIGG, C.J. — Damien Dernoncourt appeals from the trial court’s order that granted UBS AG’s CR 12(b)(2) motion to dismiss his claims for lack of personal jurisdiction. Because Dernoncourt does not establish that UBS AG had sufficient minimum contacts with Washington state to support our exercise of personal jurisdiction in this case, the trial court did not err, and we affirm. FACTS In April 2024, Dernoncourt filed a complaint in King County Superior Court against Credit Suisse AG and UBS Group AG, in which he presented four tort claims against the banks. According to his complaint, he is a French national and a resident of Hong Kong, China, and the banks were organized under Swiss law and based in Zurich, Switzerland. Dernoncourt alleged that Credit Suisse AG engaged in an ongoing campaign of surveillance against him between 2016 and 2019, when, according to Dernoncourt, Credit Suisse AG’s chief executive officer (CEO) was romantically No. 88890-1-I/2 involved with Dernoncourt’s then-wife. He further alleged that the surveillance was directed by the CEO and conducted both by Credit Suisse AG employees and third parties hired for this purpose and, pursuant to this “surveillance campaign,” Credit Suisse AG, or those working at its direction, “hacked” his Microsoft 365 1 e-mail account and read three confidential e-mail exchanges between him and his divorce attorneys. Counsel for Credit Suisse AG and UBS Group AG entered notices of appearance in early May, and shortly thereafter, the parties filed a joint stipulation that extended the banks’ time to file either an answer or responsive motion, which the court accepted. UBS Group AG subsequently filed a CR 12(b)(2) motion to dismiss Dernoncourt’s action for lack of personal jurisdiction, arguing that he failed to establish that Washington had personal jurisdiction over the defendant banks. 2 Dernoncourt opposed the motion, claiming that the King County Superior Court had personal jurisdiction over the banks via Washington state’s long-arm statute 3 because, as alleged, bank employees or contracted agents hacked into his Microsoft e-mail account, which “has been administered by the Microsoft Corporation . . . located in King County, Washington.”4 1 Microsoft 365 is a collection of online services and office applications offered by the Microsoft Corporation. 2 UBS Group AG’s motion also presented CR 12(b)(6) and forum non conveniens as alternate bases for dismissal. 3 RCW 4.28.185. 4 As relevant here, Dernoncourt does not assert that either he or Credit Suisse AG were located in Washington state during the time of any of these events. Rather, his assertion of personal jurisdiction is based solely on Microsoft’s connection to Washington. -2- No. 88890-1-I/3 In October 2024, the trial court stayed the action to allow for jurisdictional discovery. 5 The resulting materials disclosed in discovery included a number of exhibits containing e-mails and messages between Credit Suisse AG employees along with excerpts from documents detailing Credit Suisse AG’s surveillance activities aimed at Dernoncourt. It is undisputed that the materials disclosed during jurisdictional discovery did not produce any new facts connecting Credit Suisse AG’s actions to Washington state. Dernoncourt also filed a motion to compel Microsoft to produce his account data from the time of the alleged hacking incident, specifically that from servers on which his e-mail account was stored. Microsoft opposed the motion and stated that it “would not be able to comply, because after a reasonable search it ha[d] not located the requested data in its records.” Accordingly, the trial court denied the motion as moot. In March 2025, the parties stipulated as follows: 1. The Complaint names Credit Suisse AG and UBS Group AG (allegedly as legal successor to Credit Suisse AG) as defendants. 2. Credit Suisse AG and UBS Group AG have made the following representation to Plaintiff and the [c]ourt: “Credit Suisse AG ceased to exist as of May 31, 2024. And its legal successor is not UBS Group AG (the entity named in the Complaint), but rather UBS AG. Accordingly, the proper defendant to be named here (whether in Washington or Swiss courts) is UBS AG.” 3. The parties therefore stipulate that: (a) UBS AG should be substituted into the case as the sole defendant and Credit Suisse AG and UBS Group AG removed as defendants; and (b) the caption should be amended accordingly. 4. The parties further stipulate that UBS AG has assumed the assets, liabilities, and operations of Credit Suisse AG. 5 The same order that stayed the proceedings also denied the CR 12(b)(6) and forum non conveniens alternate bases for dismissal. -3- No. 88890-1-I/4 5. Subject to the above, the parties agree that the substitution is without prejudice to any party’s claims or defenses. The trial court accepted the parties’ stipulation. 6 In September, after nearly a year of jurisdictional discovery, the court entered an order that granted UBS AG’s motion to dismiss for lack of personal jurisdiction. 7 The court found, despite the discovery authorized in the case, that Dernoncourt “ha[d] not gathered any evidence that would support the exercise of personal jurisdiction.” Specifically, the court found that “no evidence shows that Plaintiff’s alleged injuries arise out of or relate to any such contacts between UBS [AG] (or any predecessor) and Washington state, and the exercise of personal jurisdiction over UBS [AG] (or any predecessor) would be unreasonable.” Dernoncourt timely appealed. ANALYSIS Dernoncourt asserts that the trial court erred when it granted UBS AG’s motion to dismiss his claims for lack of personal jurisdiction. The trial court did not err. In describing the relevant standard of review, we have stated as follows: We review de novo the denial of a motion to dismiss for lack of personal jurisdiction. State v. LG Elecs., Inc., 186 Wn.2d 169, 176, 375 P.3d 1035 (2016). “When a motion to dismiss for lack of personal jurisdiction is resolved without an evidentiary hearing, the plaintiff’s burden is only that of a prima facie showing of jurisdiction.” 6 In light of the parties’ stipulation, we hereinafter refer to the defendants/respondent as “UBS AG.” 7 One month earlier, Dernoncourt had filed a motion for further relief with the trial court, “seek[ing] for the [c]ourt to review any portions [of the discovered materials] that contain information concerning electronic surveillance of anyone by Credit Suisse [AG].” The court’s September order also denied Dernoncourt’s motion for further relief on the basis that “the requested discovery was not reasonably calculated to lead to the discovery of evidence of purposeful minimum contacts between UBS [AG] and Washington.” -4- No. 88890-1-I/5 LG Elecs., 186 Wn.2d at 176. Even when the trial court considers matters outside the pleadings, we treat the allegations in the complaint as established for purposes of determining jurisdiction. State v. LG Elecs., Inc., 185 Wn. App. 394, 406, 341 P.3d 346 (2015) (quoting Freestone Capital Partners, LP v. MKA Real Estate Opportunity Fund I, LLC, 155 Wn. App. 643, 654, 230 P.3d 625 (2010)), aff’d, 186 Wn.2d 169. For matters outside the pleadings, we draw reasonable inferences in the light favorable to the nonmoving party. State v. AU Optronics Corp., 180 Wn. App. 903, 912, 328 P.3d 919 (2014). Montgomery v. Air Serv Corp., 9 Wn. App. 2d 532, 537-38, 446 P.3d 659 (2019). The exercise of personal jurisdiction over a party must comport with the due process clause of the Fourteenth Amendment to the United States Constitution. See, Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72 (1985); Walden v. Fiore, 571 U.S. 277, 283-84 (2014). “Washington courts may exercise personal jurisdiction over a nonresident defendant so long as (1) purposeful minimum contacts exist between the defendant and the forum state, (2) the plaintiff’s injuries arise out of or relate to those minimum contacts, and (3) the exercise of jurisdiction is consistent with notions of fair play and substantial justice.” Montgomery, 9 Wn. App. 2d at 538. “The central concern of the federal constitutional inquiry is the relationship between the defendant, the forum, and the litigation.” Failla v. FixtureOne Corp., 181 Wn.2d 642, 650, 336 P.3d 1112 (2014). “Contingent on the particular facts and claims in a case, Washington courts may possess either general[8] or specific personal jurisdiction over a defendant corporation.” Montgomery, 9 Wn. App. 2d at 539. Specific jurisdiction “requires that the suit arise out of or relate to the defendant’s contacts with the forum.” LG 8 Dernoncourt concedes in his appellate briefing that he “does not allege general jurisdiction over Defendant.” -5- No. 88890-1-I/6 Elecs., 185 Wn. App. at 411 (emphasis added). “It is well established in Washington ‘that under the long-arm statute, RCW 4.28.185, our courts may assert jurisdiction over nonresident individuals and foreign corporations to the extent permitted by the due process clause of the United States Constitution, except as limited by the terms of the statute.’” Shute v. Carnival Cruise Lines, 113 Wn.2d 763, 766-67, 783 P.2d 78 (1989) (quoting Deutsch v. W. Coast Mach. Co., 80 Wn.2d 707, 711, 497 P.2d 1311, cert. denied, 409 U.S. 1009 (1972)). Washington’s long-arm statute authorizes our state courts to exercise specific personal jurisdiction over “[a]ny person, whether or not a citizen or resident of this state,” who, as relevant here, “commi[ts] . . . a tortious act within this state.” RCW 4.28.185(1)(b). “A tortious act is deemed to have occurred in Washington for the purposes of the long-arm statute if the injury occurred in Washington, because the injury is considered inseparable from the tortious act.” MBM Fisheries, Inc. v. Bollinger Mach. Shop & Shipyard, Inc., 60 Wn. App. 414, 425, 804 P.2d 627 (1991). And “[a]n injury ‘occurs’ in Washington if the last event necessary to make the defendant liable for the alleged tort occurred in Washington.” Id. Here, Dernoncourt alleges that UBS AG hacked into his Microsoft e-mail account. For the purpose of determining specific personal jurisdiction, we accept this allegation as true and draw all reasonable inferences therefrom. To make a prima facie showing that Washington state has personal jurisdiction over UBS AG, Dernoncourt must show that UBS AG committed a tort in the state of Washington when it hacked Dernoncourt’s e-mail. The question before us, therefore, is -6- No. 88890-1-I/7 whether he has established that the claimed act of UBS AG hacking his e-mail constituted a tort committed in this state. He has not. Dernoncourt’s complaint and the discovery disclosed here reflect that when his e-mail was allegedly hacked and when he purportedly discovered as much, he was located in Hong Kong. As mentioned supra, UBS AG is located in Zurich. Although this supports establishing a connection between UBS AG and Hong Kong or Zurich, it does not support establishing a connection between UBS AG and Washington state. Nor is it a reasonable inference that UBS AG’s connections with those foreign jurisdictions or its alleged conduct therein constitute a connection with this state. Thus, Dernoncourt does not carry his burden of establishing a prima facie showing that either the alleged tortious act by UBS AG or any injury to him resulting therefrom occurred in Washington state. Nonetheless, Dernoncourt asserts that because Microsoft, a nonparty to this suit, is located in Washington and, according to his complaint, the underlying e-mail account that UBS AG allegedly hacked was administered by Microsoft, he has carried his prima facie burden of showing sufficient contacts for Washington courts to exercise personal jurisdiction over UBS AG. Again, his assertion fails. As explained supra, for Washington courts to properly exercise personal jurisdiction, the case must arise out of the defendant’s contacts with the state, not those of a third party. Dernoncourt attempts to satisfy this burden by arguing that because his e-mail account is “administered” by Microsoft, the hacking necessarily occurred where the corporation is headquartered, Washington. However, the jurisdictional discovery that was conducted here, at Dernoncourt’s request and -7- No. 88890-1-I/8 over UBS AG’s objection, established that the servers related to Dernoncourt’s e- mail account were located in Japan, not in the United States, much less Washington. Furthermore, Dernoncourt fails to provide any authority establishing that a third party’s contacts with this state create the required minimum contacts to establish personal jurisdiction between the defendant and the state. We do not consider assertions on appeal unsupported by citation to decisional authority. RAP 10.3(a)(6); Camer v. Seattle Post-Intelligencer, 45 Wn. App. 29, 36, 723 P.2d 1195 (1986). Dernoncourt failed to carry his burden to make a prima facie showing that UBS AG has sufficient minimum contacts with this state such that our courts may properly exercise personal jurisdiction over UBS AG for these tort claims. Accordingly, the trial court did not err when it granted UBS AG’s motion to dismiss Dernoncourt’s complaint for lack of personal jurisdiction. Affirmed. WE CONCUR: -8-