Experian Information Solutions, Inc. v. Ellypsis, Inc.

NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction or to Transfer

C.D. Cal.August 11, 2016

NOTICE OF MOTION TO DISMISS Case No. 16-cv-01331-AG-DFM -1- B A R R O N & N E W B U R G E R , P .C . 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 TIMOTHY P. JOHNSON (BAR NO. 66333) BARRON & NEWBURGER, P.C. 1970 OLD TUSTIN AVENUE, SECOND FLOOR SANTA ANA, CA 92705 TELEPHONE: (714) 832-1170 FACSIMILE: (714) 832-1179 E-MAIL: tjohnson@bn-lawyers.com Attorneys for Defendant Ellypsis, Inc. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EXPERIAN INFORMATION SOLUTIONS, INC., a corporation, Plaintiff, vs. ELLYPSIS, INC., a corporation d/b/a GO CLEAN CREDIT; and DOES 1 through 10, inclusive, Defendants. Case No. 16-cv-01331-AG-DFM NOTICE OF MOTION AND MOTION OF DEFENDANT ELLYPSIS, INC. TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR TO TRANFER Date: September 26, 2016 Time: 10:00 a.m. Courtroom: 10D Hon. Andrew J. Guilford TO PLAINTIFF EXPERIAN INFORMATION SOLUTIONS, INC. AND TO ITS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on September 26, 2016, at 10:00 a.m., in Courtroom 10D at the United States District Court located at 411 West Fourth Case 8:16-cv-01331-AG-DFM Document 11 Filed 08/11/16 Page 1 of 3 Page ID #:65 NOTICE OF MOTION TO DISMISS Case No. 16-cv-01331-AG-DFM -2- B A R R O N & N E W B U R G E R , P .C . 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 Street, Santa Ana, California, Defendant Ellypsis, Inc. will move the Court pursuant Federal Rule of Civil Procedure 12(b)(2) for an order dismissing this action on the ground that the court lacks personal jurisdiction over this defendant or to transfer this case to the United States District Court for the District of Arizona. This Motion is based upon this Notice; the Memorandum of Points and Authorities filed herein; the Declaration of Dawn McCraw filed herein; and on the papers, pleadings and records on file herein. This Motion is made following the conference of counsel pursuant to L.R. 7-3 which took place on August 11, 2016. Dated: August 11, 2016 BARRON & NEWBURGER, P.C. By:_______/s/Timothy Johnson TIMOTHY P. JOHNSON _____ Attorneys for Defendant Ellypsis, Inc. Case 8:16-cv-01331-AG-DFM Document 11 Filed 08/11/16 Page 2 of 3 Page ID #:66 NOTICE OF MOTION TO DISMISS Case No. 16-cv-01331-AG-DFM -3- B A R R O N & N E W B U R G E R , P .C . 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 Experian v. Ellypsis et al. USDC, Case No. 16-cv-01331-AG-DFM CERTIFICATE OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is 1970 Old Tustin Avenue, Second Floor, Santa Ana, CA 92705. On August 11, 2016, I served a true copy of NOTICE OF MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION OF DAWN MCCRAW on all interested parties in this action by: [ ] By personally delivering it to the person(s) indicated below in the manner as provided in FRCP 5(B); [ ] By depositing it in the United States mail in a sealed envelope with the postage thereon fully prepaid to the following: [ ] By overnight delivery using an envelope or package provided by the overnight service carrier and addressed to the following: [ X] By ECF: On this date, I electronically filed the document(s) with the Clerk of the Court using the CM/ECF system, which sent electronic notification of such filing to the following: Richard J. Grabowski, Esq. JONES DAY 3161 Michelson Dr., Suite 800 Irvine, CA 92612 I declare that I am employed in the office of a member of the Bar of this Court, at whose direction the service was made. EXECUTED on August 11, 2016 at Santa Ana, California. ____/s/Timothy Johnson TIMOTHY P. JOHNSON ________________ Case 8:16-cv-01331-AG-DFM Document 11 Filed 08/11/16 Page 3 of 3 Page ID #:67 NOTICE OF MOTION TO DISMISS Case No. 16-cv-01331-AG-DFM -1- B A R R O N & N E W B U R G E R , P .C . 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 TIMOTHY P. JOHNSON (BAR NO. 66333) BARRON & NEWBURGER, P.C. 1970 OLD TUSTIN AVENUE, SECOND FLOOR SANTA ANA, CA 92705 TELEPHONE: (714) 832-1170 FACSIMILE: (714) 832-1179 E-MAIL: tjohnson@bn-lawyers.com Attorneys for Defendant Ellypsis, Inc. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EXPERIAN INFORMATION SOLUTIONS, INC., a corporation, Plaintiff, vs. ELLYPSIS, INC., a corporation d/b/a GO CLEAN CREDIT; and DOES 1 through 10, inclusive, Defendants. Case No. 16-cv-01331-AG-DFM MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION OF DEFENDANT ELLYPSIS, INC. TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR TO TRANFER CASE Date: September 26, 2016 Time: 10:00 a.m. Courtroom: 10D Hon. Andrew J. Guilford I. INTRODUCTION This lawsuit has no connection to California. This case has been brought by a Ohio corporation which has corporate offices in California against an Arizona Case 8:16-cv-01331-AG-DFM Document 11-1 Filed 08/11/16 Page 1 of 12 Page ID #:68 NOTICE OF MOTION TO DISMISS Case No. 16-cv-01331-AG-DFM -2- B A R R O N & N E W B U R G E R , P .C . 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 corporation with its principal place of business in Tempe, Arizona. The conduct that is the subject of the lawsuit did not take place in California but rather was directed to Plaintiff’s facilities in Allen, Texas. There is simply no basis for this lawsuit having been filed in a court in California. II. UNDERLYING FACTS Ellypsis, Inc. (“Ellypsis”) is an Arizona corporation with its principal place of business located at 1204 E. Baseline Road, Suite 207, Tempe, Arizona. First Amended Complaint (“FAC”), ¶13; (Declaration of Dawn McCraw (“McCraw Declaration”), ¶2) Ellypsis was served with this lawsuit at that address. (McCraw Declaration, ¶2) Ellypsis only does business in Arizona. It has approximately ten employees and all of them live in Arizona. (McCraw Declaration, ¶3) The principals of Ellypsis live in Arizona. (McCraw Declaration, ¶3) All of Ellypsis’ advertising and marketing is directed to Arizona consumers and business entities. (McCraw Declaration, ¶5) Ellypsis is not present in the state of California. It has no offices, employees or business locations in the state of California. (McCraw Declaration, ¶3) Ellypsis does no advertising or other marketing in the state of California for clients. (McCraw Declaration, ¶5) Ellypsis has not registered with any government agencies in the state of California including the California Secretary of State as an entity doing business in the state of California since it does not do business in the state of California. (McCraw Declaration, ¶4) Ellypsis does have California clients although the number of its California clients has averaged fewer than 50 over the past few years. Those clients were not solicited by Ellypsis but contacted Ellypsis in Arizona as a result of referrals from other Ellypsis clients. Less than 8% of the business done by Ellypsis involves its Case 8:16-cv-01331-AG-DFM Document 11-1 Filed 08/11/16 Page 2 of 12 Page ID #:69 NOTICE OF MOTION TO DISMISS Case No. 16-cv-01331-AG-DFM -3- B A R R O N & N E W B U R G E R , P .C . 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 California clients. Ellypsis does have periodic contacts with its California clients by telephone, email and/or text regarding their accounts, however those contacts are with Ellypsis at its Arizona offices. (McCraw Declaration, ¶6) Plaintiff alleges that Ellypsis, Inc. does various things in violation of federal and state law in the representation of its clients. Ellypsis, Inc. categorically denies any such violations, however, that is not the issue presently before the Court. The gravamen of this lawsuit as it relates to Plaintiff is its claim that Ellypsis mailed it written dispute letters on behalf of Ellypsis’ clients which Plaintiff claims violates federal and state law. (FAC, ¶¶11, 25, 26, 27 and 28) Plaintiff raises a number of issues alleging that Ellypsis violated various federal and state laws, however, none of those claims has anything to do with Plaintiff other than the purported improper mailing of dispute letters. Thus, Plaintiff would have no standing to prosecute this action with regard to any claims other than possibly those arising out of the mailing of the dispute letters. Again, Ellypsis categorically denies that its involvement with its clients’ dispute letters violates any federal or state laws, but that again is an issue for a later time. What is important with regard to this Motion is that those dispute letters were not mailed to Plaintiff in California, but rather to Plaintiff at an Allen, Texas location identified by Plaintiff as the location where all disputes are to be mailed. Any responses by Plaintiff to those letters are made directly to Ellypsis’ clients presumably from its Allen, Texas location. (McCraw Declaration, ¶7) Ellypsis has had no contacts or communications with Plaintiff in the state of California. (McCraw Declaration, ¶8) Plaintiff does not allege in its FAC that there have been any communications or contacts between Ellypsis and it in the state of California. Case 8:16-cv-01331-AG-DFM Document 11-1 Filed 08/11/16 Page 3 of 12 Page ID #:70 NOTICE OF MOTION TO DISMISS Case No. 16-cv-01331-AG-DFM -4- B A R R O N & N E W B U R G E R , P .C . 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 III. ISSUES RAISED BY THIS MOTION The issues raised by this Motion are straightforward. They are: 1. Whether this Court has general personal jurisdiction over Ellypsis; 2. Whether this Court has specific personal jurisdiction over Ellypsis; 3. If the answer to either question is yes, is it reasonable for this Court to exercise jurisdiction over Ellypsis in this case; 4. Should this case be transferred to the United States District Court for the State of Arizona as an alternative to dismissal. IV. ISSUES OF LAW A. THIS CASE SHOULD BE DISMISSED SINCE THERE IS NO BASIS FOR THIS COURT TO EXERCISE PERSONAL JURISDICTION OVER ELLYPSIS IN THIS CASE. 1. Legal Standards Governing This Motion to Dismiss “Where a defendant moves to dismiss a complaint for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating that jurisdiction is appropriate.” Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797,800 (9th Cir. 2004). The test for determining whether jurisdiction over a particular defendant exists is clear. Personal jurisdiction may be general or specific. To establish general personal jurisdiction, Plaintiff must demonstrate that Ellypsis is domiciled in the state of California. In other words, Plaintiff must establish that Ellypsis was incorporated in California or that its principal place of business is located in California. Without such a showing, Plaintiff must demonstrate that this is an “exceptional case” that justifies a determination of general jurisdiction. Daimler AG v. Bauman 134 S.Ct. 746, 760-761 (2014). To demonstrate specific personal jurisdiction, Plaintiff must show that Ellypsis Case 8:16-cv-01331-AG-DFM Document 11-1 Filed 08/11/16 Page 4 of 12 Page ID #:71 NOTICE OF MOTION TO DISMISS Case No. 16-cv-01331-AG-DFM -5- B A R R O N & N E W B U R G E R , P .C . 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 “has sufficient ‘minimum contacts’ with California arising from, or related to, its actions…that the forum may assert specific personal jurisdiction.” Id. at 801-802. The test for specific personal jurisdiction consists of three prongs: 1. Ellypsis must purposefully have directed its activities towards Plaintiff or purposefully availed itself of the privilege of conducting activities in the state of California; 2. the claim must have arisen out of Ellypsis’ forum related activities; and 3. the exercise of jurisdiction must be reasonable. Id. at 802. Plaintiff bears the burden of establishing the first two prongs of this test. If it meets that burden, Ellypsis has the burden to show that the exercise of jurisdiction would not be reasonable. Id. at 802. B. THIS COURT DOES NOT HAVE GENERAL PERSONAL JURISDICTION OVER ELLYPSIS. For this Court to exercise general personal jurisdiction, Plaintiff must demonstrate that Ellypsis is so “at home” in the state of California that it is effectively domiciled in this state. Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S.Ct. 2846, 2851 (2014). Typically, a corporate defendant will only be “at home” or “domiciled” where it has its principal place of business or where it is incorporated. Daimler, supra, 134 S.Ct. 746, 760-761. The Supreme Court in Daimler described the concept of determining general personal jurisdiction from forum related activities as “ ‘obsolescing notions of general jurisdiction’ based on nothing more than a corporation’s ‘doing business’ in a forum.” Id. at 756, fn.8. The comments by the Supreme Court are the culmination of a long line of cases holding that substantial forum related activities do not result in an out of state Case 8:16-cv-01331-AG-DFM Document 11-1 Filed 08/11/16 Page 5 of 12 Page ID #:72 NOTICE OF MOTION TO DISMISS Case No. 16-cv-01331-AG-DFM -6- B A R R O N & N E W B U R G E R , P .C . 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 corporation being deemed to be “at home” in the forum state. See, for example: Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1986) where no general jurisdiction was determined even though the defendant had purchased equipment, negotiated contracts and trained employees in the forum state; Congoleum Corp. v. DLW AG, 729 F.2d 1240, 1243 (9th Cir. 1984) where no general jurisdiction was determined even though the defendant had developed a sales force, solicited orders, bought products and attended meetings in California; Park v. Oxford Univ., 35 F.Supp.2d 1165, 1166-67 (1997) where no general jurisdiction was determined even though there was a long standing academic interaction between the defendant and California, the defendant had both purchased and sold academic journals and other materials in California and defendant had solicited money from California residents in its fundraising efforts; Cubbage v. Merchant, 744 F.2d 665, 667 (9th Cir. 1984) where no general jurisdiction was determined over Arizona doctors despite their having a significant number of California residents as patients, having used the California health insurance system, and listings in the California telephone directory; and Martinez v. Aero Caribbean, 764 F.3d 1062, 1070 (9th Cir. 2014) where no general jurisdiction was determined even though the defendant purchased parts from eleven California suppliers, advertised in California in a trade publication, sold between $225-450 million in airplanes to a California company, and sent its represents to promote products at trade conferences in California. The Supreme Court in Daimler held out the potential for some “exceptional case” where general jurisdiction may be determined even if the defendant is not incorporated in the forum state or its principal place of business is not located in the forum state. For such an exception to the general rule to be created, it must be determined that the defendant’s “operations in a forum other than its formal place of Case 8:16-cv-01331-AG-DFM Document 11-1 Filed 08/11/16 Page 6 of 12 Page ID #:73 NOTICE OF MOTION TO DISMISS Case No. 16-cv-01331-AG-DFM -7- B A R R O N & N E W B U R G E R , P .C . 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 incorporation or principal place of business may be so substantial and of such a nature as to render the corporation at home in that State.” Daimler, supra, at 761, fn.19. The Ninth Circuit is in accord. As stated in Ranza v. Nike, Inc. 793 F.3d 1059, 1069 (9th Cir. 2015): “Only in an ‘exceptional case’ will general jurisdiction be available anywhere else” other than in the defendant’s state of incorporation or where its principal place of business is located. This is certainly not the “exceptional case” that would justify a finding of general personal jurisdiction in this Court. Ellypsis is an Arizona corporation with its principal place of business in Arizona. It has no offices, employees or business locations in the state of California. All of its advertising and marketing is directed to Arizona consumers and business entities. It does no advertising or marketing in the state of California. It has not registered with any California agencies as an entity doing business in the state of California. It has clients in the state of California but those clients constitute less than 8% of the business of Ellypsis and the total number of such clients averages less than 50 in any recent year. However, maintaining minimal contacts with California clients is not the same as doing business in California. As stated in Monkton Ins. Services, Ltd. v. Ritter, 768 F.3d 429, 432 (5th Cir. 2014): “…even repeated contacts with forum residents by a foreign defendant may not constitute the requisite substantial, continuous and systematic contacts required for a finding of general jurisdiction-in other words, while it may be doing business with Texas, it is not doing business in Texas” citing to Revell v. Liidov, 317 F.3d 467, 471 (5th Cir. 2002) It is submitted that, given the facts of this case, this Court must determine that it has no general personal jurisdiction over Defendant Ellypsis in this case. Case 8:16-cv-01331-AG-DFM Document 11-1 Filed 08/11/16 Page 7 of 12 Page ID #:74 NOTICE OF MOTION TO DISMISS Case No. 16-cv-01331-AG-DFM -8- B A R R O N & N E W B U R G E R , P .C . 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 C. THIS COURT DOES NOT HAVE SPECIFIC PERSONAL JURISDICTION OVER ELLYPSIS. Whether this Court should exercise specific personal jurisdiction of Ellypsis in this case must focus on the relationship between California, Ellypsis and the claims in this lawsuit. Walden v. Fiore, 134 S.Ct. 1115, 1121 (2014). In evaluating that relationship, it must be demonstrated by Plaintiff that Ellypsis purposefully directed its activities towards Plaintiff in the state of California and that Plaintiff’s cause of action arises out of the activities of Ellypsis in California. There is no evidence that Ellypsis conducted any activity towards Plaintiff in the state of California. There is nothing alleged in the FAC suggesting that the conduct that Plaintiff complains of occurred in California. The subject of the FAC- the dispute letters-were not mailed to Plaintiff in California. They were mailed to Plaintiff in Texas. There have been no contacts or communications between Plaintiff and Ellypsis in California. Plaintiff does not allege that and Ms. McCraw has testified to that. While Ellypsis does have some California clients, it did not seek out these clients but rather were contacted by these clients at their office in Arizona. It is anticipated that Plaintiff will argue that Ellypsis maintains a web site which enables California residents to communicate with it or that Ellypsis maintains regular contact with its California clients by telephone, email or text. However, maintaining minimal contacts with California clients is not the same There is no connection between the state of California and the dispute letters which Plaintiff complains about in this lawsuit. The letters mailed by Ellypsis which are the subject of Plaintiff’s Complaint, those letters are mailed by Ellypsis in Arizona to Plaintiff in Texas. The only basis for Plaintiff bringing this lawsuit in California is that its corporate offices are located in California. Ellypsis did not purposefully direct any activities towards Plaintiff in the state Case 8:16-cv-01331-AG-DFM Document 11-1 Filed 08/11/16 Page 8 of 12 Page ID #:75 NOTICE OF MOTION TO DISMISS Case No. 16-cv-01331-AG-DFM -9- B A R R O N & N E W B U R G E R , P .C . 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 of California nor did any of the conduct-the mailing of the dispute letters-have anything to do with California. D. THE EXERCISE OF JURISDICTION OVER ELLYPSIS IN CALIFORNIA WOULD NOT BE REASONABLE. Even if it is determined that personal jurisdiction exists over Ellypsis in the state of California, the Court must nevertheless determine that its exercise of personal jurisdiction over Ellypsis is reasonable by comporting with fair play and substantial justice. Burger King Corp. v. Rudzewicz, 471 US 462, 477-478, 105 S.Ct. 2174, 2184-2185 (1985). There are several factors to be considered in determining reasonableness. They include the extent of a defendant’s purposeful activity in the forum state; the burden on defendant to defend in the forum state; the extent of conflict with the sovereignty of the defendant’s state; the forum state’s interest in adjudicating the dispute; the most efficient judicial resolution of the controversy; the importance of the forum to plaintiff’s interest in obtaining relief; and the existence of an alternative forum. Roth v. Garcia Marquez, 942 F.2d 617, 623 (9th Cir. 1991). Where the showing of purposeful activity in the forum state is not strong, “the less is jurisdiction to be anticipated and the less reasonable its exercise.” Core-Vent v. Nobel Indus. AB, 11 F.3d 1482, 1488 (9th Cir. 1993). The burden on Ellypsis to defend this case in California is not insignificant. It has no employees in California. All of its employee witnesses are located in Arizona. On the other hand, only Plaintiff’s corporate offices are located in California. Plaintiff does business in all 50 states and the dispute letters in question were sent to Plaintiff’s Texas facilities. Where the burdens regarding convenience are equal-not the case here-the burden upon the defendant must prevail. Terracom v. Valley Nat’l Bank, 49 F.3d 555, 561 (9th Cir. 1995). Case 8:16-cv-01331-AG-DFM Document 11-1 Filed 08/11/16 Page 9 of 12 Page ID #:76 NOTICE OF MOTION TO DISMISS Case No. 16-cv-01331-AG-DFM -10- B A R R O N & N E W B U R G E R , P .C . 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 This case will not have any significant effect on the sovereignty of Arizona nor is there a significant interest on the part of California in resolving Plaintiff’s Texas activities in dealing with dispute letters. Arizona is the location of the employees and principals of Ellypsis and would be a more efficient location to address Plaintiff’s issues than the state of California. Relief would be readily available to Plaintiff in Arizona where Ellypsis is located. Where the majority of the reasonableness factors weigh against a finding of reasonableness, it would be unreasonable for a court to exercise personal jurisdiction of the defendant. Aurora Corp. of Am. v. Michlin Prosperity Co., 2015 U.S. Dist. LEXIS 133340 at *33 (C.D. Cal. Sept. 29, 2015). E. AS AN ALTERNATIVE TO DISMISSAL, THE COURT SHOULD TRANSFER THE CASE TO THE ARIZONA DISTRICT COURT. Where a district court lacks personal jurisdiction and proper venue, it has the authority pursuant to 28 USC § 1406(a) to transfer the case to a district where those issues are avoided. Goldlawr, Inc. v. Heiman, 369 US 463, 466, 82 S.Ct. 913, 916. The case may be transferred even if venue is not an issue. SongByrd, Inc. v. Estate of Grossman, 206 F.3d 172, 179, fn. 9 (2nd Cir. 2000). Such a transfer may also be made pursuant to 28 USC § 1631. Roman v. Ashcroft, 340 F.3d 314, 328 (6th Cir. 2003). Whether to transfer rather than to simply dismiss the action is within the discretion of the Court. Stanifer v. Brannan, 564 F.3d 455, 457 (6th Cir. 2009). At the present time, there are 18 actions pending between in the Arizona District Court between Plaintiff here and consumers in which the very same issue- the validity of the dispute letters and Plaintiff’s obligations to the consumer upon receipt of the letters-is involved. Those cases have now been consolidated before the Honorable G. Murray Snow of the United States District Court for the District of Case 8:16-cv-01331-AG-DFM Document 11-1 Filed 08/11/16 Page 10 of 12 Page ID #:77 NOTICE OF MOTION TO DISMISS Case No. 16-cv-01331-AG-DFM -11- B A R R O N & N E W B U R G E R , P .C . 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 Arizona, Case No. CV-15-01212-PHX-GMS. See the Request for Judicial Notice filed with this Motion. Plaintiff is represented by the same attorney in those cases as in this case. It would be appropriate for this case to be transferred to the Arizona District Court as an alternative to the dismissal of the case for the convenience of the parties and the courts. V. CONCLUSION Based upon the foregoing, it is respectfully submitted that the Court should grant this Motion and dismiss this case for lack of personal jurisdiction over Defendant Ellypsis, Inc. In the alternative, it would be appropriate to transfer this case to the United States District Court for the District of Arizona where 18 other cases involving the same dispute letter issues are pending and have been consolidated. Dated: August 11, 2016 BARRON & NEWBURGER, P.C. By:_______/s/Timothy Johnson TIMOTHY P. JOHNSON _____ Attorneys for Defendant Ellypsis, Inc. Case 8:16-cv-01331-AG-DFM Document 11-1 Filed 08/11/16 Page 11 of 12 Page ID #:78 NOTICE OF MOTION TO DISMISS Case No. 16-cv-01331-AG-DFM -12- B A R R O N & N E W B U R G E R , P .C . 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 Case 8:16-cv-01331-AG-DFM Document 11-1 Filed 08/11/16 Page 12 of 12 Page ID #:79 Case 8:16-cv-01331-AG-DFM Document 11-2 Filed 08/11/16 Page 1 of 3 Page ID #:80 Case 8:16-cv-01331-AG-DFM Document 11-2 Filed 08/11/16 Page 2 of 3 Page ID #:81 Case 8:16-cv-01331-AG-DFM Document 11-2 Filed 08/11/16 Page 3 of 3 Page ID #:82