Klayman v. Deluca et al

MOTION to Dismiss for Lack of Jurisdiction

N.D. Cal.August 27, 2014

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 954138 14-CV-03190-EJD DEFENDANT STEPHANIE A. DELUCA'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FRCP 12(b)(2) & 12(b)(3); MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF R O B IN SO N & W O O D , IN C . A TT O R N EY S A T LA W JESSE F. RUIZ [SBN. 77984] jfr@robinsonwood.com HELEN H. CHEN [SBN. 213150] hhc@robinsonwood.com ROBINSON & WOOD, INC. 227 N 1st Street San Jose, California 95113 Telephone: (408) 298-7120 Facsimile: (408) 298-0477 Attorneys for Defendant STEPHANIE A. DELUCA UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION LARRY KLAYMAN, Plaintiff, vs. STEPHANIE A. LUCK DELUCA, SUZANNE JAMBE, JAMES ROLLINSON, BAKER HOSTETLER, HEWITT B. SHAW, EBAY, INC., PAYPAL, INC. (A SUBSIDIARY OF EBAY), Defendants. Case No. 14-CV-03190-EJD DEFENDANT STEPHANIE A. DELUCA'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FRCP 12(b)(2) & 12(b)(3); MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF Date: January 16, 2015 Time: 9:00 a.m. Dept.: 4 Judge: The Honorable Edward J. Davila / / / / / / / / / / / / / / / / / / / / / / / / Case 5:14-cv-03190-EJD Document 27 Filed 08/27/14 Page 1 of 17 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 954138 1 14-CV-03190-EJD DEFENDANT STEPHANIE A. DELUCA'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FRCP 12(b)(2) & 12(b)(3); MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF R O B IN SO N & W O O D , IN C . A TT O R N EY S A T LA W NOTICE IS HEREBY GIVEN that on January 16, 2015 at 9:00 a.m., or as soon thereafter as counsel may be heard, defendant Stephanie A. DeLuca ("DeLuca"), erroneously sued as Stephanie A. Luck Deluca, will move this Court, at the United States Courthouse located at 280 South First Street, San Jose, CA 95513, Courtroom 4, before the Honorable Edward J. Davila, for an order: NOTICE OF MOTION & MOTION TO DISMISS (a) pursuant to Federal Rules of Civil Procedure, Rule 12(b)(1) dismissing this action for lack of subject matter jurisdiction on the ground that the required diversity of citizenship of the parties is not present and the amount in controversy is far below the jurisdictional threshold under 28 U.S.C. § 1332(a); (b) pursuant to Federal Rules of Civil Procedure, Rule 12(b)(2), dismissing this action for lack of personal jurisdiction over defendant DeLuca on the ground that this Court has no personal jurisdiction over DeLuca; (c) pursuant to 18 U.S.C.S. § 1965 that this Court has no personal jurisdiction over the RICO defendants; and (d) granting defendant DeLuca such other incidental relief as may be appropriate. This motion is based on this Notice of Motion, the accompanying Declaration of Stephanie A. DeLuca, the accompanying Memorandum of Points & Authorities, oral argument of counsel, and on all of the pleadings and papers on file in this action. Dated: August 27, 2014 ROBINSON & WOOD, INC. By: /s/Jesse F. Ruiz JESSE F. RUIZ HELEN H. CHEN Attorneys for Defendant STEPHANIE A. DELUCA Case 5:14-cv-03190-EJD Document 27 Filed 08/27/14 Page 2 of 17 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 954138 i 14-CV-03190-EJD DEFENDANT STEPHANIE A. DELUCA'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FRCP 12(b)(2) & 12(b)(3); MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF R O B IN SO N & W O O D , IN C . A TT O R N EY S A T LA W TABLE OF CONTENTS Page I. INTRODUCTION ................................................................................................................. 1 II. THE COMPLAINT ............................................................................................................... 2 A. The Parties ................................................................................................................. 2 B. Jurisdiction & Venue ................................................................................................. 2 C. The Allegations ......................................................................................................... 2 III. LEGAL AUTHORITY ......................................................................................................... 5 A. This Court Has No Personal Jurisdiction over DeLuca ............................................ 5 1. This Court Has No General Personal Jurisdiction over DeLuca ................... 5 2. This Court Has No Specific Personal Jurisdiction over DeLuca .................. 6 B. This Court Has No Personal Jurisdiction over the RICO Defendants ...................... 8 1. The RICO Defendants Had No Significant Contacts with California .......... 9 2. The Ends of Justice Is Not Served by Conferring Personal Jurisdiction over the RICO Defendants ...................................................... 10 C. This Court Lacks Subject Matter Jurisdiction ......................................................... 10 1. There Is No Complete Diversity ................................................................. 10 2. The Amount in Controversy Is Far Below the Jurisdictional Threshold ..................................................................................................... 11 IV. CONCLUSION ................................................................................................................... 12 Case 5:14-cv-03190-EJD Document 27 Filed 08/27/14 Page 3 of 17 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 954138 ii 14-CV-03190-EJD DEFENDANT STEPHANIE A. DELUCA'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FRCP 12(b)(2) & 12(b)(3); MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF R O B IN SO N & W O O D , IN C . A TT O R N EY S A T LA W TABLE OF AUTHORITIES CASES Page Abeloff v. Barth, 119 F.R.D. 326 (D.C. Mass. 1988) ........................................................................ 8 Barclay Square Properties v. Midwest Fed'l Sav. & Loan Ass'n of Minneapolis, 893 F.2d 968 (8th Cir. 1990) ............................................................................................................... 11 Burger King Corp. v. Rudzewics, 471 U.S. 477 (1985) ................................................................ 6, 7 Butcher's Union Local No. 498 v. SDC Investments, Inc., 788 F.2d 539 (9th Cir. 1986) ............. 8, 9 Christensen v. Northwest Airlines, Inc., 633 F.2d 529 (9th Cir. 1980) ............................................ 11 Crenshaw v. Antokol, 287 F.Supp.2d 37 (D. C. 2003) .................................................................... 10 Dody v. Brown, 659 F. Supp. 541 (W.D. Mo. 1987) ........................................................................ 9 Edmunds v. Sup.Ct. (Ronson) (1994) 24 Cal.App.4th 221 ............................................................ 7, 8 Follett College Stores Corp. v. Fernandez, 587 F. Supp. 1051 (C.D. Ill. 1984) ........................ 9, 10 Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2851 (2011) ............................... 5, 6 IMO Indus., Inc. v. Kierkert AG, 155 F.3d 254, 257 (3d Cir. 1998) ................................................. 5 International Shoe Co. v. Wash., 326 U.S. 316 (1945) ................................................................. 5, 6 Keeton v. Hustler Magazine, Inc., 465 U.S. 774 (1984) ................................................................... 7 Lincoln Property Co. v. Roche, 546 U.S. 81 (2005) ....................................................................... 10 McNutt v. General Motors Accept. Corp. of Indiana, 298 U.S. 178 (1936) ................................... 11 Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 104-105 (1987) ............................... 7 Pavlovich v. Sup. Ct. (2002) 29 Cal.4th 262 ...................................................................................... 7 Scott v. Pasadena Unified School Dist., 306 F.3d 646 (9th Cir. 2002) ............................................ 12 Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal.4th 1054, 1067 .......................................... 7 St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283 (1938) ............................................... 11 Stranahan Gear Co., Inc. v. NL Industries, Inc., 800 F.2d 53, 58 (3d Cir. 1986) ............................ 5 Third Nat'l Bank v. Wedge Group, Inc., 882 F.2d 1089 (6th Cir. 1989) ............................................ 5 Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1172 (9th Cir. 2006) .......................................... 5, 6 Case 5:14-cv-03190-EJD Document 27 Filed 08/27/14 Page 4 of 17 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 954138 iii 14-CV-03190-EJD DEFENDANT STEPHANIE A. DELUCA'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FRCP 12(b)(2) & 12(b)(3); MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF R O B IN SO N & W O O D , IN C . A TT O R N EY S A T LA W World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 299 (1980) .................................................. 7 STATUTES 18 U.S.C. § 1965 ................................................................................................................. 2, 8, 9, 10 28 U.S.C. § 1332 ......................................................................................................................... 2, 11 28 U.S.C. § 1367 ............................................................................................................................... 2 28 U.S.C. § 1391 ............................................................................................................................... 2 Federal Rule of Civil Procedure § 12(b)(1) ...................................................................................... 1 Federal Rules of Civil Procedure, Rule 12(b)(2) .......................................................................... 1, 5 Case 5:14-cv-03190-EJD Document 27 Filed 08/27/14 Page 5 of 17 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 954138 1 14-CV-03190-EJD DEFENDANT STEPHANIE A. DELUCA'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FRCP 12(b)(2) & 12(b)(3); MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF R O B IN SO N & W O O D , IN C . A TT O R N EY S A T LA W MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT I. Defendant Stephanie A. DeLuca ("DeLuca"), erroneously sued as Stephanie A. Luck Deluca, moves this Court to dismiss the complaint under Federal rule of Civil Procedure § 12(b)(1) for lack of subject matter jurisdiction, and for lack of personal jurisdiction under § 12(b)(2). INTRODUCTION This action arises out of defendant (and Ohio resident) DeLuca's attempt to collect an attorneys' fees judgment entered in an Ohio marriage dissolution action and subsequent custody dispute. Plaintiff, who is a Florida resident and the ex-husband of DeLuca, was found by the Ohio state court in contempt of court for failure to pay the judgment. In connection with the contempt proceedings, DeLuca's Ohio attorneys sought the subpoena power of the Ohio court to compel PayPal to disclose information about plaintiff's PayPal accounts. Thereafter, subpoenas were issued by the Ohio court and received by the PayPal defendants in California. DeLuca contends that this Court lacks general personal jurisdiction over DeLuca on the ground that her alleged contact with California does not amount to the type of substantial, continuous and systematic contacts required for a finding of general jurisdiction. This Court also lacks specific personal jurisdiction over DeLuca because plaintiff fails to establish that DeLuca purposely availed herself of the benefits and protections of this district. Furthermore, the alleged predicate acts—bringing the contempt proceeding in the Ohio State Court and service of the court-issued subpoenas—are inadequate to confer personal jurisdiction over DeLuca and other RICO defendants in this Court. The RICO defendants had no significant contacts with California, and judicial economy does not favor trying action in this Court. Finally, this Court lacks diversity jurisdiction because (1) plaintiff and several co- defendants are residents of Florida; and (2) the amount in controversy is below the jurisdictional threshold. Case 5:14-cv-03190-EJD Document 27 Filed 08/27/14 Page 6 of 17 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 954138 2 14-CV-03190-EJD DEFENDANT STEPHANIE A. DELUCA'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FRCP 12(b)(2) & 12(b)(3); MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF R O B IN SO N & W O O D , IN C . A TT O R N EY S A T LA W II. A. THE COMPLAINT Plaintiff Larry Klayman ("Klayman") filed the complaint in this action on July 5, 2014. Plaintiff Klayman ("Klayman") is an attorney (para. 13) and resident of Florida (para. 1). Defendant DeLuca is a resident of Ohio and the ex-wife of Klayman (para. 2). The Parties Defendant Suzanne Jambe ("Jambe") is a resident of Ohio (para. 3). Defendant James Rollinson ("Rollinson") is a resident of Ohio (para. 4). Defendant Hewitt B. Shaw ("Shaw"), Jambe and Rollinson are attorneys and partners with the firm of Baker Hostetler, a limited liability partnership and a national law firm with offices in multiple cities, including Cleveland, Ohio, and with offices in California and doing business within this judicial district (para. 3-6). Shaw is the Office Managing Partner of the Cleveland headquarters of Baker Hostetler (para. 6). Defendant eBay, Inc. ("eBay") is a corporation with its headquarters and principal place of business in San Jose, California, and is the parent company of PayPal (para. 7). Defendant PayPal, Inc. ("PayPal") is a subsidy of eBay (collectively "the PayPal defendants"), and is a corporation with its headquarters and principal place of business in San Jose, California (para. 8). The PayPal defendants provide credit card services for plaintiff (para. 50). B. Plaintiff alleges that jurisdiction is proper pursuant to 28 U.S.C. § 1332 (complete diversity and the amount in controversy over $75,000); 28 U.S.C. § 1367 (supplemental jurisdiction ); and 18 U.S.C. § 1965 (nationwide jurisdiction under the Racketeer Influenced and Corrupt Organizations Act ("RICO") ) (para. 10). Jurisdiction & Venue Plaintiff alleges that venue is proper pursuant to 28 U.S.C. § 1391 as a substantial part of the events or omissions giving rise to the claim occurred within this district; and pursuant to PayPal's User Agreement (para. 11-12). C. Plaintiff divorced DeLuca in June 2003 (para. 14). At that time, the parties entered into a Consent Marital Settlement Agreement in the commonwealth of Virginia which contained a The Allegations Case 5:14-cv-03190-EJD Document 27 Filed 08/27/14 Page 7 of 17 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 954138 3 14-CV-03190-EJD DEFENDANT STEPHANIE A. DELUCA'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FRCP 12(b)(2) & 12(b)(3); MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF R O B IN SO N & W O O D , IN C . A TT O R N EY S A T LA W choice of law provision that mandated and required that Virginia law would apply to the enforceability and all other matters concerning the Consent Marital Settlement Agreement (para. 14). Plaintiff has two children with DeLuca (para. 16). Plaintiff alleges that in the summer of 2007, he was forced to file for custody of his children in the Court of Common Pleas for Cuyahoga County, State of Ohio (Case No. DR-07-316840). Plaintiff also alleges that DeLuca failed to provide to him medical information about a serious accident involving their youngest child. Id. Plaintiff subsequently withheld child support on the basis of disputes involving visitation following DeLuca's remarriage in 2007 (para. 17-19). The attorney defendants represented DeLuca in the contempt proceedings in the Ohio state court against plaintiff in which the court found plaintiff in contempt for not paying child support; DeLuca was awarded a judgment of $320,000 in attorney's fees on June 22, 2011 ("judgment") (para. 20). The attorney defendants, on behalf of DeLuca, brought a motion to show cause for plaintiff's alleged violation of the judgment, attempting to incarcerate plaintiff for his non-payment of the judgment against him (para. 21). In August of 2012, the attorney defendants, on behalf of DeLuca, sent subpoenas to third party entities, including the PayPal defendants, which sought financial records which they believed contained banking information related to plaintiff (para. 24-25(a)-(c)). Further, the attorney defendants sent the subpoena to the Cuyahoga Support Enforcement Agency requesting documents relating to all payments made (including checks and wire transfers), between January 1, 2012 to the present, by plaintiff to DeLuca, to either Ohio Support Payment Central or the Cuyahoga County Child Support Enforcement Agency (para. 25(d)). The subpoenas were issued by the Ohio court on August 8, 2012 (para. 24). The PayPal defendants received the subpoenas on August 12, 2012.1 1 The complaint is contradictory as to whether only one subpoena or multiple subpoenas were issued to the PayPal Defendants (para. 24-25.) (Id.) On August 16, 2012, PayPal responded to the subpoena and sent documents and a CD to defendant Rollinson via Federal Express (para. 29-30, 33). Case 5:14-cv-03190-EJD Document 27 Filed 08/27/14 Page 8 of 17 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 954138 4 14-CV-03190-EJD DEFENDANT STEPHANIE A. DELUCA'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FRCP 12(b)(2) & 12(b)(3); MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF R O B IN SO N & W O O D , IN C . A TT O R N EY S A T LA W On August 16, 2012, plaintiff, through written correspondence, voiced his intention to move to quash the subpoenas in correspondence to the attorney defendants (para. 27). On August 20, 2012, plaintiff filed his motion to quash the subpoenas in Ohio state court, pursuant to Ohio Rules of Civil Procedure Rule 45(C)(3) (para. 28). Upon learning of the release of documents by the PayPal defendants, plaintiff immediately demanded that the PayPal defendants retrieve the documents sent to the attorney defendants (para. 37). Plaintiff was contacted by PayPal's counsel on August 20, 2014, who informed plaintiff that PayPal would request the immediate return of the released records based on plaintiff's objections (para. 38). On the same day, the PayPal defendants demanded the return of the released documents and information. (Id.) The complaint alleges ten counts, eight of them are made against DeLuca and the attorney defendants: (1) fraud by statement to third parties; (2) fraud; (3) intrusion into private affairs; (4) trespass to chattels; (5) conversion; (6) unlawful, unfair, fraudulent business practices; (7) civil violations of RICO; and (8) conspiracy to engage in RICO. Two counts are made against the PayPal defendants: breach of contract and negligence. With respect to the RICO claim, plaintiff alleges that the predicate acts clustered around a continued pattern of fraud: (1) the attorney defendants, on behalf of DeLuca, sought to fraudulently have plaintiff held in contempt of court, in violation of the Ohio Constitution; and (2) the attorney defendants and DeLuca fraudulently sought and obtained financial records which contained banking information related to plaintiff (para. 99). Plaintiff further alleges that the attorney defendants, on behalf of DeLuca, engaged in a pattern of racketeering activity across state lines. (para. 89, 80, 96). Plaintiff prays for (1) general damages in an amount exceeding $1,000,000; (2) punitive and exemplary damages in excess of $2,000,000; (3) injunctive relief; (4) an award of treble damages as consistent with 18 U.S.C. § 1964(c); (5) attorney's fees and costs (regardless that plaintiff is in pro per); and (6) prejudgment interest. On August 5, 2014, this Court granted DeLuca an additional 21 days to file a responsive pleading. (Dkt. 17.) Case 5:14-cv-03190-EJD Document 27 Filed 08/27/14 Page 9 of 17 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 954138 5 14-CV-03190-EJD DEFENDANT STEPHANIE A. DELUCA'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FRCP 12(b)(2) & 12(b)(3); MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF R O B IN SO N & W O O D , IN C . A TT O R N EY S A T LA W III. A. LEGAL AUTHORITY This Court should dismiss the complaint for lack of personal jurisdiction over DeLuca. F.R.C.P. 12(b)(2). Once a defendant has filed a motion to dismiss for lack of personal jurisdiction, the burden rests on the plaintiff to prove that jurisdiction exists in the forum state. IMO Indus., Inc. v. Kierkert AG, 155 F.3d 254, 257 (3d Cir. 1998). Defendant may submit declarations and affidavits in support of her motion. Stranahan Gear Co., Inc. v. NL Industries, Inc., 800 F.2d 53, 58 (3d Cir. 1986). This Court Has No Personal Jurisdiction over DeLuca DeLuca is not a resident of this forum district. Personal jurisdiction over an out-of-state defendant arises when the defendant has "certain minimum contacts with [the forum] such that maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " International Shoe Co. v. Wash., 326 U.S. 310, 316 (1945). A plaintiff meets the burden by establishing that general or specific jurisdiction over the defendant exists. Third Nat'l Bank v. Wedge Group, Inc., 882 F.2d 1087, 1089 (6th Cir. 1989). 1. This Court Has No General Personal Jurisdiction over DeLuca General jurisdiction exists if non-resident defendants' activities in the forum state are "substantial, continuous and systematic" as to render them essentially at home in the forum State. Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011). In evaluating general jurisdiction, courts consider " 'whether the defendant makes sales, solicits or engages in business in the state, serves the state's markets, designates an agent for service of process, holds a license, or is incorporated there.' " Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1172 (9th Cir. 2006). Courts also consider other factors such as "[l]ongvity, continuity, volume, economic impact, physical presence, and integration into the state's regulatory or economic markets". Id. None of the factors supporting exercise of general jurisdiction are present here. DeLuca has never resided in California. (DeLuca Decl., ¶ 6.) She does not own any real or personal property in California. (DeLuca Decl., ¶ 11.) She maintains no bank accounts or records in Case 5:14-cv-03190-EJD Document 27 Filed 08/27/14 Page 10 of 17 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 954138 6 14-CV-03190-EJD DEFENDANT STEPHANIE A. DELUCA'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FRCP 12(b)(2) & 12(b)(3); MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF R O B IN SO N & W O O D , IN C . A TT O R N EY S A T LA W California. (DeLuca Decl., ¶ 12.) Moreover, DeLuca does not own or operate or transact any personal business in California, never solicits business in California, and has never had an office in California. (DeLuca Decl., ¶ 7.) She is never licensed to do business in California, and is never employed in California. (DeLuca Decl., ¶¶ 8-9.) She has no agent or representative in California. (DeLuca Decl., ¶ 10.) DeLuca's only specific contact with the forum is her Ohio attorneys' service of court-issued subpoenas upon a California entity. (DeLuca Decl., ¶ 5.) DeLuca's alleged single activity with California does not amount to the type of substantial, continuous and systematic contacts required for a finding of general jurisdiction. It would be unreasonable to require DeLuca to defend the action in this Court. Tuazon, supra, 433 F.3d at 1175. Travel costs would pose an undue financial burden on DeLuca. (DeLuca Decl., ¶ 14.) Moreover, DeLuca must take care of two young school aged children and her elderly mother who lives nearby. (Id.) Simply put, DeLuca will sustain unjustified hardship if she is haled into this forum court to defend herself. 2. This Court Has No Specific Personal Jurisdiction over DeLuca In contrast to general, all-purpose jurisdiction, specific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction. Goodyear Dunlop Tires, supra, 131 S. Ct. at 2851. Plaintiff must establish that the nonresident defendant purposefully directed its activities toward residents of the forum state or otherwise established contacts with the forum state, and that plaintiff's cause of action arises out of or results from the defendant's forum-related contacts. Burger King Corp. v. Rudzewics, 471 U.S. 462, 477 (1985). " 'Some single or occasional acts' related to the forum may not be sufficient to establish jurisdiction if 'their nature and quality and the circumstances of their commission' create only an 'attenuated' affiliation with the forum." Burger King Corp., supra, 471 U.S. at 476, fn. 18, citing International Shoe Co., supra, 326 U.S. at 318. To satisfy the "purposeful availment" requirement of specific jurisdiction, a defendant must purposefully and voluntarily direct her activities at residents of the forum state in an effort to obtain a benefit from that state, such as distributing commercial products or conducting extensive Case 5:14-cv-03190-EJD Document 27 Filed 08/27/14 Page 11 of 17 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 954138 7 14-CV-03190-EJD DEFENDANT STEPHANIE A. DELUCA'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FRCP 12(b)(2) & 12(b)(3); MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF R O B IN SO N & W O O D , IN C . A TT O R N EY S A T LA W advertising aimed at residents of the forum state. Burger King Corp., supra, 471 U.S. at 462, 472- 473; see also Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal.4th 1054, 1067.) A defendant should not be haled into a jurisdiction solely as a result of "random," "fortuitous," or "attenuated" contacts. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 299 (1980). Moreover, specific personal jurisdiction over a nonresident defendant exists only to the extent permitted by the forum state's long-arm statute and by the due process clause of the United States Constitution. Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104-105 (1987). Under California law, plaintiff must proffer "evidence of express aiming or intentional targeting" in order to establish personal jurisdiction over the nonresident defendant, Pavlovich v. Sup. Ct., 29 Cal.4th 262, 273 (2002) . For example, in Edmunds v. Sup.Ct. (Ronson), 24 Cal.App.4th 221, 236 (1994) , the court found that merely representing a California resident in an out-of-state action, although it involves receiving fee payments from California, taking a deposition in California, and communications from the California client, did not establish "purposeful availment" of the privilege of conducting activities in California. In Edmunds, an attorney who practiced in Hawaii represented a California partnership in a Hawaiian action. His clients later sued him for malpractice in California. The court found that the Hawaiian attorney's activities did not constitute purposeful availment sufficient to confer jurisdiction over the Hawaiian attorney. (Id. at 234.) The court noted that substantial evidence does not support plaintiff's claim that defendant attorney engaged in tortious conduct while within the State of California at the time of the deposition. (Id. at 222.) The court in Edmunds examined whether defendant's acts reflected a substantial connection with California, or whether there was only an "attenuated connection". (Id. at 223.) The court further considered public policy concerns of allowing an exercise of California jurisdiction over an out-of-state attorney who represented California clients in an out-of-state action, and whose contact with California was limited. The court pointed out that doing so would Case 5:14-cv-03190-EJD Document 27 Filed 08/27/14 Page 12 of 17 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 954138 8 14-CV-03190-EJD DEFENDANT STEPHANIE A. DELUCA'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FRCP 12(b)(2) & 12(b)(3); MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF R O B IN SO N & W O O D , IN C . A TT O R N EY S A T LA W effectively penalize out-of-state attorneys by subjecting them to suit in California on a highly attenuated theory. (Id. at 226.) The case at bar is akin to Edmunds in that the alleged contacts with California both arose out of an out-of-state proceeding. Here, the service of subpoenas upon the PayPal defendants was an incidental and highly attenuated contact with California arising out of the contempt proceedings in the Ohio state court. Most importantly, all legal services arising out of the contempt proceeding, including the issuance of subpoenas to the PayPal defendants, were performed by Baker Hostetler's attorneys at their Cleveland, Ohio office. (DeLuca Decl., ¶ 5.) Deluca did not retain, and no services were ever provided by attorneys in Baker Hostetler's California offices. (Id.) The acts or omissions for which DeLuca is sought to be held liable in this action, as described in paragraphs 14 to 77 of the complaint, all occurred outside California. (DeLuca Decl., ¶ 13.) Based on the above, the highly attenuated contact in the form of service of the subpoenas is insufficient to support this Court's specific jurisdiction over DeLuca. Plaintiff fails to establish that DeLuca purposely availed herself of the benefits and protections of this district. B. Alternatively, plaintiff claims that this Court may exercise personal jurisdiction over DeLuca and the attorney defendants under 18 U.S.C.S. § 1965, which confers nationwide jurisdiction in a RICO action over nonresident defendants. However, merely naming persons in a RICO complaint does not, in itself, make defendants subject to § 1965(b)'s nationwide service provisions. Butcher's Union Local No. 498 v. SDC Investments, Inc., 788 F.2d 535, 539 (9th Cir. 1986) Section 1965 requires a RICO plaintiff to establish personal jurisdiction over at least one defendant under section 1965(a), who "resides, is found, has an agent, or transacts his affairs" in the forum. Id. This Court Has No Personal Jurisdiction over the RICO Defendants The term "transacts his affairs" means the corporate defendants' business contacts with forum have been repeated, substantial, and continuous over a period of years. Abeloff v. Barth, 119 F.R.D. 315, 326 (D.C. Mass. 1988). As to individual defendants, the issue is whether position Case 5:14-cv-03190-EJD Document 27 Filed 08/27/14 Page 13 of 17 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 954138 9 14-CV-03190-EJD DEFENDANT STEPHANIE A. DELUCA'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FRCP 12(b)(2) & 12(b)(3); MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF R O B IN SO N & W O O D , IN C . A TT O R N EY S A T LA W of individuals within corporation was such that they had actual power to control and exercised power to control corporation's transaction of business in the forum state. Id. Further, it must be shown that "the ends of justice" require the exercise of personal jurisdiction over the nonresident defendant. 18 U.S.C.S. § 1965(b). Butcher's Union Local No. 498, supra, 788 F.2d at 538. DeLuca contends that there is a lack of personal jurisdiction over the RICO defendants because the RICO defendants had no significant contacts with California, and judicial economy does not favor trying action in this Court. 1. The RICO Defendants Had No Significant Contacts with California In Follett College Stores Corp. v. Fernandez, 587 F. Supp. 1051 (C.D. Ill. 1984), plaintiff based its RICO claim on the alleged falsification of accounting reports, manipulation of store inventory, and misuse of assets and funds by the defendants originating at its regional office outside the forum district. Id. at 1053. Defendants' only contact with the forum district which relate to the subject matter of plaintiff's complaint were the mailing of documents and the making of telephone calls to persons within the forum district. Id. at 1052. While various defendants may have made numerous trips into the forum district, plaintiff did not allege or support the proposition that these trips related directly to the subject matter of the lawsuit. Id. at 1053. The court found that the forum district is unrelated to the heart of the lawsuit, and had no personal jurisdiction over defendants in a RICO action because virtually all of the alleged activities concerning the RICO cause of action referred to operation of defendant's business outside the forum area. Id. The court concluded that defendants' only contacts with the district involved document mailings and telephone calls originating from outside the forum district, and deemed such contacts to be minimal. Id.; see also Dody v. Brown, 659 F. Supp. 541, 545-546 (W.D. Mo. 1987) (finding that telephone calls and mailings that were done from outside of the district to a person within the district did not give rise to the level of regular, substantial and continuous activity within the district so as to satisfy § 1965(a)'s transaction of affairs requirement). Similarly, here, no RICO defendants have significant contacts with California with respect to the underlying cause of action. DeLuca, Jambe, Shaw and Rollinson are all residents of Ohio Case 5:14-cv-03190-EJD Document 27 Filed 08/27/14 Page 14 of 17 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 954138 10 14-CV-03190-EJD DEFENDANT STEPHANIE A. DELUCA'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FRCP 12(b)(2) & 12(b)(3); MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF R O B IN SO N & W O O D , IN C . A TT O R N EY S A T LA W (para. 2-4, 6). The contempt proceeding is venued in Ohio state court (para. 20). While Baker Hostetler is a national law firm and has an office in California (para. 5), none of the legal services for DeLuca were handled by Baker Hostetler's California office. (DeLuca Decl., ¶ 5.) Rather, all legal work was done at the firm's Cleveland, Ohio office. (Id.) The only contact the RICO defendants had with this forum involved sending court-issued subpoenas to the PayPal defendants in connection with the contempt proceeding in Ohio (para. 24-25(a)-(c)). Serving subpoenas from an outside forum is analogous to document mailings and telephone calls originating from outside the forum district as in Follet. See Follett College Stores Corp., supra, 587 F. Supp. at 1053. Such acts are insufficient to meet the constitutional requirement that defendants purposefully availed themselves of the benefits of this district. Plaintiff fails to establish that this Court may exercise personal jurisdiction over even one RICO defendant. 2. The Ends of Justice Is Not Served by Conferring Personal Jurisdiction over the RICO Defendants In undertaking 18 U.S.C.S. § 1965(b) "ends of justice" analysis, courts consider: 1) location of parties, witnesses, records, and acts or omissions giving rising to claims; 2) whether juridical economy favors trying action in one court; 3) whether § 1965(b) venue promotes orderly and expeditious disposition of case; and 4) whether there exists alternative forum where venue is proper. Crenshaw v. Antokol, 287 F.Supp.2d 37, 42 (D. C. 2003). Here, venue under § 1965(b) does not promote expeditious disposition of this case, because the RICO defendants reside in Ohio, defendants' witnesses and records are located in Ohio, and the alleged RICO Act claim occurred in Ohio. Judicial economy simply does not favor trying action in this Court. C. 1. There Is No Complete Diversity This Court Lacks Subject Matter Jurisdiction In a complaint against a limited partnership, the location of the partnership's "principal place of business" or headquarter is irrelevant to subject matter jurisdiction. Its citizenship for diversity purposes is determined by examining the citizenship of all of its partners, not the location of the entity. Lincoln Property Co. v. Roche, 546 U.S. 81, 84 (2005). Allegations are insufficient Case 5:14-cv-03190-EJD Document 27 Filed 08/27/14 Page 15 of 17 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 954138 11 14-CV-03190-EJD DEFENDANT STEPHANIE A. DELUCA'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FRCP 12(b)(2) & 12(b)(3); MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF R O B IN SO N & W O O D , IN C . A TT O R N EY S A T LA W as to complete diversity if the complaint fails to allege citizenship of all partners. Barclay Square Properties v. Midwest Fed'l Sav. & Loan Ass'n of Minneapolis, 893 F.2d 968, 969 (8th Cir. 1990). Here, several partners at defendant Baker Hostetler, like plaintiff, are residents of Florida. (Dkt 13-1, ¶ 4.) Thus, there is no complete diversity between the parties. 2. The Amount in Controversy Is Far Below the Jurisdictional Threshold Diversity jurisdiction exists only "where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs . . ." 28 U.S.C. § 1332(a). A dismissal for lack of jurisdictional amount is proper if it was legally impossible for plaintiffs to recover on their damages theories when the case was filed. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-289 (1938). Plaintiff has the burden to establish there is a preponderance of evidence which justifies recovery of at least the minimum jurisdictional amount. McNutt v. General Motors Accept. Corp. of Indiana, 298 U.S. 178, 189 (1936). In Christensen v. Northwest Airlines, Inc., 633 F.2d 529, 530-531 (9th Cir. 1980), plaintiff passenger sought general and punitive damages exceeding the jurisdictional threshold for anger and embarrassment suffered from a short verbal altercation with agents and employees of the defendant airline. The Ninth Circuit upheld the trial court's dismissal on ground the plaintiff's claims of damages were not made in good faith but only for the purpose of obtaining federal court jurisdiction. Id. at 530-531. The court found that it is clear to a legal certainty that plaintiff could not sustain a judgment over the jurisdictional minimum. Id. at 531. "A federal court should not and cannot adjudicate such minor claims." Id. at 530-531. Here, it is legally impossible for plaintiff to recover damages over the jurisdictional threshold because the predicate acts, the attorneys' fees judgment and the subpoenas, had been sanctioned by the Ohio state court. Plaintiff fails to quantify how he arrives at the general damages figure of $1,000,000 or the punitive and exemplary damages of $2,000,000. Like the plaintiff in Christensen, plaintiff's claims of damages were not made in good faith but only for the purpose of securing federal court jurisdiction. Case 5:14-cv-03190-EJD Document 27 Filed 08/27/14 Page 16 of 17 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 954138 12 14-CV-03190-EJD DEFENDANT STEPHANIE A. DELUCA'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FRCP 12(b)(2) & 12(b)(3); MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF R O B IN SO N & W O O D , IN C . A TT O R N EY S A T LA W In light of the above, the complaint must be dismissed for lack of subject matter jurisdiction based on lack of complete diversity and the amount of controversy falling below the jurisdictional threshold. Further, dismissal for lack of subject matter jurisdiction deprives this Court of power over plaintiff's supplemental claims. Scott v. Pasadena Unified School Dist., 306 F.3d 646, 664 (9th Cir. 2002). IV. Based on the foregoing, DeLuca respectfully requests that the Court grant this Motion to Dismiss for lack of subject matter jurisdiction and lack of personal jurisdiction. CONCLUSION Dated: August 27, 2014 ROBINSON & WOOD, INC. By: /s/Jesse F. Ruiz JESSE F. RUIZ HELEN H. CHEN Attorneys for Defendant STEPHANIE A. DELUCA Case 5:14-cv-03190-EJD Document 27 Filed 08/27/14 Page 17 of 17