Baquet v. Dimon

MOTION to Dismiss for Failure to State a Claim and Lack of Personal Jurisdiction

D. Ariz.June 7, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P T W O N O R T H C E N T R A L A V E N U E , S U I T E 2 1 0 0 P H O E N IX , A Z 8 5 0 0 4 -4 4 0 6 T E L E P H O N E : (6 0 2 ) 3 6 4 -7 0 0 0 PX01DOCS\814587.2 BRYAN CAVE LLP, 00145700 Robert W. Shely, #014261 Daniel P. Crane, #030623 Two North Central Avenue, Suite 2100 Phoenix, AZ 85004-4406 Telephone: (602) 364-7000 Facsimile: (602) 364-7070 E-Mail: rwshely@bryancave.com dan.crane@bryancave.com Attorneys for Defendant James Dimon IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA STEPHEN MITCHELL BAQUET, Plaintiff, vs. JAMES DIMON, individual/CEO JP MORGAN CHASE, Defendant. No. 4:17-cv-00254-RCC DEFENDANT’S MOTION TO DISMISS (Appearing Specifically) (Hon. Raner C. Collins) Defendant James Dimon (“Mr. Dimon”), the CEO of JPMorgan Chase Bank, N.A. (“Chase”), appearing specially,1 moves to dismiss the Complaint pursuant to Rules 12(b)(2) and 12(b)(6) because this Court lacks personal jurisdiction over him and because Plaintiff Stephen Mitchell Baquet’s (“Baquet”) arguments fail to state a claim for relief as a matter of law. Baquet alleged that he offered a contract to Mr. Dimon, and Baquet seeks to hold Mr. Dimon, apparently, personally liable on the alleged offer, but fails to allege or otherwise demonstrate that Mr. Dimon accepted the alleged offer or that Baquet paid any consideration. 1 There is no evidence of proper service, and even if there were, Mr. Dimon is not subject to this Court’s personal jurisdiction, so Mr. Dimon appears specially to seek to dismissal of this nuisance litigation even in the absence of proper service. Case 4:17-cv-00254-RCC Document 5 Filed 06/07/17 Page 1 of 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P T W O N O R T H C E N T R A L A V E N U E , S U I T E 2 1 0 0 P H O E N IX , A Z 8 5 0 0 4 -4 4 0 6 T E L E P H O N E : (6 0 2 ) 3 6 4 -7 0 0 0 802667 2 MEMORANDUM OF POINTS AND AUTHORITIES I. BACKGROUND FACTS A. Loan and Deed of Trust In September 2012, Baquet and his wife, Marlene C. Baquet (collectively with Baquet the “Baquets”), borrowed funds with which to purchase a residence located at 4591 West Cosmos Place, Tucson, Arizona 85743 (“Property”). They granted JPMorgan Chase a security interest in the Property via a deed of trust recorded at Pima County Instrument No. 20122650368 (“Deed of Trust” attached at Exhibit A).2 The Deed of Trust secures a debt owed by the Baquets in the original principal amount of $333,000. See id. at 3. B. Allegations Baquet contends that on or about March 3, 2017, he sent a letter to Mr. Dimon enclosing a “negotiable instrument as full satisfaction and discharge of the claimed loan as final settlement to, JPMorgan Chase Bank, BEARER, or HOLDER as Final payoff, Discharge of debt . . . .” [See Doc. 1-13, at p. 11 (“Letter”)] The enclosed negotiable instrument identified as “Negotiable Security Instrument: No: 00000020000,” states that Baquet is a “Registered Private Banker” and that he promises to pay “JPMorgan Chase Bank, or Bearer (Holder)” of the “note” the full amount 2 The Court may consider the Deed of Trust cited in this Motion without converting this Motion into a motion for summary judgment because the Deed of Trust is a matter of public record and properly subject to judicial notice. See Pesci v. IRS, 67 F. Supp. 2d 1189, 1191-92 (D. Nev. 1999), aff’d, 225 F.3d 663 (9th Cir. 2000) (court deciding motion to dismiss may consider matters subject to judicial notice). 3 On or about May 8, 2017, Baquet mailed Chase the Complaint and exhibits totaling 19 pages. [See Doc. 1-1] The Complaint’s allegations begin on the first page of the document labeled “Summons/Complaint/Answer Small Claims Division,” continue on to the second page and then are interrupted by documents that appear to be exhibits before the allegations resume, on the small claims’ court’s standard complaint form, on page 13, [Doc. 1-1, p. 15]. The Court may consider the documents attached to the Complaint without converting this Motion into a motion for summary judgment because Baquet refers to and incorporates them in the Complaint. The Court is “not required to accept as true conclusory allegations which are contradicted by documents referred to in the complaint.” Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998). Case 4:17-cv-00254-RCC Document 5 Filed 06/07/17 Page 2 of 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P T W O N O R T H C E N T R A L A V E N U E , S U I T E 2 1 0 0 P H O E N IX , A Z 8 5 0 0 4 -4 4 0 6 T E L E P H O N E : (6 0 2 ) 3 6 4 -7 0 0 0 802667 3 of $315,000 (“Instrument”). [Id. at pp. 8 and 12 (emphasis in original)] Baquet signed the Instrument but the Instrument does not contain Mr. Dimon’s signature. [Id.] The Instrument further states that “[t]he Payment will be made against the obligations of the United States or assigns . . . in monthly installments of $920 . . . Holder has accepted this payoff legal tender as full settlement and discharge of this debt by acquiescence under FRCP, rule 8 . . . and your bilateral contracted signature.” [Id.] But there is no allegation that such “bilateral contracted signature” exists, and the copy of the correspondence that Baquet attached to the Complaint show no signature from Mr. Dimon and the reference to Federal Rules of Civil Procedure 8 is nonsensical gibberish. In addition to the Instrument, Baquet also attaches to the Complaint a copy of a check, allegedly from Baquet in his capacity as trustee of the Stephen M. Baquet Family Trust (“Trust”) to Chase in the amount of $315,000, stating “For: final payoff with security instrument” (“Check”). [Id. at p. 4] The Check contains handwriting stating that Chase defaulted and/or breached the “terms and conditions” of the “new approved contract.” [Id.] There is no evidence that Chase negotiated the check and there is no allegation that Baquet has otherwise paid off his loan with the legal tender allowed for the note and deed of trust. Finally, Baquet also attaches a supposed 1099-C in which he purportedly claims to be a creditor to Mr. Dimon, as a debtor, forgiving Mr. Dimon’s alleged debt to Baquet. [Id. at p. 11] Mr. Dimon cannot imagine how a 1099-C has any place in this action, nor does the 1099-C make any sense in a context in which Baquet owes Chase hundreds of thousands of dollars. C. Causes of Action Baquet’s first cause of action is labeled “trespass [contract default/breach].” [Id. at 3] Baquet alleges that the “trespass” occurred by “default and breach of terms and conditions of Wrongdoer’s newly signed and accepted bilateral mortgage payoff contract.” [Id.] On the form Complaint, Exhibit A p. 13, Baquet alleges that this action involves “1) no money just a breach and default of a signed bilateral contract between two parties; 2) Case 4:17-cv-00254-RCC Document 5 Filed 06/07/17 Page 3 of 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P T W O N O R T H C E N T R A L A V E N U E , S U I T E 2 1 0 0 P H O E N IX , A Z 8 5 0 0 4 -4 4 0 6 T E L E P H O N E : (6 0 2 ) 3 6 4 -7 0 0 0 802667 4 unjust enrichment; 3) conversion; 4) conversion & denied remedy of law & due process . . . .” Regardless of the manner in which Baquet states the claim, however, it appears that he ultimately seeks some judicial confirmation that he owns his home for free without actually having paid for it. It is unclear how Mr. Dimon, however, could have breached an alleged contract in which Baquet allegedly is supposed to pay Mr. Dimon $920.00 per month. Baquet does not allege that he has performed by so paying, so it is odd, to say the least, that in failing to perform, Baquet would think he had an action against the person to whom he allegedly promised performance but failed to perform. In any event, in the absence of allegations showing that this Court has personal jurisdiction over Mr. Dimon, and in the absence of a showing that Baquet himself has actually performed under the negotiable instrument, the Complaint fails to state a claim. It is unclear what factual basis Baquet relies upon for the unjust enrichment or conversion and “conversion & denied remedy of law & due process” claims. However, his breach of contract and “trespass” claims appear to rely upon his allegation that the Instrument, Check and/or Letter somehow became an enforceable contract and that he is entitled to a free home. II. ANALYSIS All of these allegations and claims arise from the latest internet-conspiracy theory websites that encourage people who cannot pay their mortgage to pursue a free home by the latest scam plan. But Baquet’s claims fail because he had failed to allege that this Court has personal jurisdiction over Mr. Dimon and he fails to allege or show the existence of an executed contract that he contends bound Mr. Dimon. None of the legal theories can withstand scrutiny. A. Lack of Personal Jurisdiction. In determining whether this Court has personal jurisdiction over Mr. Dimon, Arizona law applies. See Arizona Sch. Risk Retention Trust, Inc. v. NMTC, Inc., 169 F. Supp. 3d 931, 935 (D. Ariz. 2016), appeal dismissed (May 23, 2016). “Arizona's long-arm statute provides that an Arizona court may exercise personal jurisdiction over a Case 4:17-cv-00254-RCC Document 5 Filed 06/07/17 Page 4 of 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P T W O N O R T H C E N T R A L A V E N U E , S U I T E 2 1 0 0 P H O E N IX , A Z 8 5 0 0 4 -4 4 0 6 T E L E P H O N E : (6 0 2 ) 3 6 4 -7 0 0 0 802667 5 nonresident defendant to the maximum extent permitted under the Due Process Clause of the United States Constitution.” Id. “For personal jurisdiction over a non-resident to exist, the defendant must have sufficient minimum contacts in the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” In re Marriage of Peck, --- P.3d ---, 763 Ariz. Adv. Rep. 29, ¶ 7 (Ct. App. Apr. 20, 2017) (citing Williams v. Lakeview Co., 199 Ariz. 1, ¶ 6, 13 P.3d 280, 282 (2000) and Int’l Shoe Co. v. Washington, 326 U.S. 310, 320, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). Personal jurisdiction over a non-resident exists in two instances: general and specific. A non-resident is subject to general personal jurisdiction in Arizona if his “contacts with the state are so substantial or continuous.” Id. at *2, ¶ 8. Baquet does not allege that Mr. Dimon has substantial or continuous contacts in the State of Arizona that would support general personal jurisdiction. A non-resident might also be subject to specific personal jurisdiction in Arizona if “(1) the defendant purposefully availed [himself] of the privilege of conducting activities in Arizona; (2) the claim arises out of or results from the defendant’s activities related to Arizona; and (3) the exercise of jurisdiction would be reasonable.” Id. at *2, ¶ 9. Baquet’s allegations do not support specific personal jurisdiction either. Baquet sent the purported “contract” to an address in the state of New York. [Doc. 1-1 at p. 9] There is no evidence or allegation that Mr. Dimon ever saw, much less personally acquiesced to or signed the alleged “contract.” The alleged “contract” as set forth in the Complaint does not bear Mr. Dimon’s signature or any other sign that he executed it or acquiesced to its terms. The Court is “not required to accept as true conclusory allegations which are contradicted by documents referred to in the complaint.” Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998). B. Failure to State a Claim i. Breach of Contract Baquet apparently contends that by mailing the Check and Instrument to Mr. Dimon’s purported business address, the parties entered into a “bilateral contract,” which Case 4:17-cv-00254-RCC Document 5 Filed 06/07/17 Page 5 of 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P T W O N O R T H C E N T R A L A V E N U E , S U I T E 2 1 0 0 P H O E N IX , A Z 8 5 0 0 4 -4 4 0 6 T E L E P H O N E : (6 0 2 ) 3 6 4 -7 0 0 0 802667 6 Baquet now alleges Mr. Dimon breached. First, Baquet’s scheme that he can create a negotiable instrument and thrust it upon Mr. Dimon or Chase is not novel and courts repeatedly reject such claims. See Johnson v. North Carolina, Case No. 4:14-CV-50-FL, 2015 WL 413607, at *1, 5 (E.D.N.C. Jan. 30, 2015) (dismissing with prejudice plaintiff’s claims that the defendants “wrongfully refused to recognize negotiation instruments” drafted by the plaintiff). Second, Baquet fail to allege that Mr. Dimon personally “accepted” the Instrument or Check to form a valid contract. “For an enforceable contract to exist, there must be an offer, an acceptance, consideration, and sufficient specification of terms so that obligations involved can be ascertained.” K-Line Builders, Inc. v. First Fed. Sav. & Loan Ass'n, 139 Ariz. 209, 212, 677 P.2d 1317, 1320 (Ct. App. 1983). Baquet’s own attachments prove that Mr. Dimon never accepted any “contract” offered by Baquet. Baquet did not allege that Mr. Dimon accepted the Check or received a payment from Baquet in the amount of $315,000. Similarly, Baquet does not allege that Mr. Dimon signed and accepted the Instrument. Baquet’s breach of contract claim fails to state a claim because it fails to allege the elements required to establish a contract. ii. Unjust Enrichment “Unjust enrichment occurs when one party has and retains money or benefits that in justice and equity belong to another.” Trustmark Ins. Co. v. Bank One, Arizona, N.A., 202 Ariz. 535, 541 ¶ 31, 48 P.3d 485, 491 (Ct. App. 2002). “To establish a claim for unjust enrichment, a party must show: (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the impoverishment; (4) the absence of justification for the enrichment and the impoverishment; and (5) the absence of a legal remedy.” Id. No allegations support such a claim. iii. Trespass and Conversion Fail Baquet’s facts do not set out colorable claims for trespass and conversion. “Trespass is ‘any unauthorized presence on another’s personal property.’” Med. Lab. Mgmt. Consultants v. Am. Broad. Companies, Inc. 30 F. Supp. 2d 1182, 1201 (D. Ariz. Case 4:17-cv-00254-RCC Document 5 Filed 06/07/17 Page 6 of 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P T W O N O R T H C E N T R A L A V E N U E , S U I T E 2 1 0 0 P H O E N IX , A Z 8 5 0 0 4 -4 4 0 6 T E L E P H O N E : (6 0 2 ) 3 6 4 -7 0 0 0 802667 7 1998) (quoting State ex rel. Purcell v. Superior Court In and For Maricopa County, 111 Ariz. 582, 535 P.2d 1299, 1301 (1975)). Similarly, Conversion requires “wrongful interference with another’s ownership or right of possession.” Autoville, Inc. v. Friedman, 20 Ariz. App. 89, 91, 510 P.2d 400, 402 (Ct. App. 1973). No allegations support this theory. III. CONCLUSION Mr. Dimon requests this Court dismiss the Complaint with prejudice and without leave to amend on the grounds that amendment would be futile DATED this 7th day of June, 2017. BRYAN CAVE LLP By: /s/Daniel P. Crane Robert W. Shely Daniel P. Crane Two North Central Avenue, Suite 2100 Phoenix, AZ 85004-4406 Telephone: (602) 364-7000 Facsimile: (602) 364-7070 Attorneys for James Dimon Case 4:17-cv-00254-RCC Document 5 Filed 06/07/17 Page 7 of 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P T W O N O R T H C E N T R A L A V E N U E , S U I T E 2 1 0 0 P H O E N IX , A Z 8 5 0 0 4 -4 4 0 6 T E L E P H O N E : (6 0 2 ) 3 6 4 -7 0 0 0 802667 8 CERTIFICATE OF SERVICE I hereby that on June 7th, 2017, I electronically transmitted the foregoing document to the Clerk’s office using CM/ECF System for filing and mailed a copy to: Stephen Mitchell Baquet 890 W. Grant Road Tucson, AZ 85705 In Pro Per s/Cristina Daniels Case 4:17-cv-00254-RCC Document 5 Filed 06/07/17 Page 8 of 8 Exhibit A Case 4:17-cv-00254-RCC Document 5-1 Filed 06/07/17 Page 1 of 16 Case 4:17-cv-00254-RCC Document 5-1 Filed 06/07/17 Page 2 of 16 Case 4:17-cv-00254-RCC Document 5-1 Filed 06/07/17 Page 3 of 16 Case 4:17-cv-00254-RCC Document 5-1 Filed 06/07/17 Page 4 of 16 Case 4:17-cv-00254-RCC Document 5-1 Filed 06/07/17 Page 5 of 16 Case 4:17-cv-00254-RCC Document 5-1 Filed 06/07/17 Page 6 of 16 Case 4:17-cv-00254-RCC Document 5-1 Filed 06/07/17 Page 7 of 16 Case 4:17-cv-00254-RCC Document 5-1 Filed 06/07/17 Page 8 of 16 Case 4:17-cv-00254-RCC Document 5-1 Filed 06/07/17 Page 9 of 16 Case 4:17-cv-00254-RCC Document 5-1 Filed 06/07/17 Page 10 of 16 Case 4:17-cv-00254-RCC Document 5-1 Filed 06/07/17 Page 11 of 16 Case 4:17-cv-00254-RCC Document 5-1 Filed 06/07/17 Page 12 of 16 Case 4:17-cv-00254-RCC Document 5-1 Filed 06/07/17 Page 13 of 16 Case 4:17-cv-00254-RCC Document 5-1 Filed 06/07/17 Page 14 of 16 Case 4:17-cv-00254-RCC Document 5-1 Filed 06/07/17 Page 15 of 16 Case 4:17-cv-00254-RCC Document 5-1 Filed 06/07/17 Page 16 of 16