Lary Kennedy et al v. Chris Ferguson et al

NOTICE OF MOTION AND MOTION to Dismiss Plaintiffs' Third Amended Complaint

C.D. Cal.May 25, 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 NOTICE OF MOTION AND MOTION TO DISMISS UNDER FRCP 12(b)(2), 12(b)(5) LEGAL\30496329\1 Erik L. Jackson (SBN 166010) ejackson@cozen.com Nathan Dooley (SBN 224331) ndooley@cozen.com Alexander M. Kargher (SBN 259262) akargher@cozen.com COZEN O’CONNOR 601 S. Figueroa Street, Suite 3700 Los Angeles, CA 90017 Telephone: 213.892.7900 Facsimile: 213.892.7999 Attorneys for Defendants Tiltware LLC Howard Lederer, Andy Bloch, Erik Seidel and Chris Ferguson UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA LARY KENNEDY, an individual; and GREG OMOTOY, an individual Plaintiff, vs. CHRIS FERGUSON an individual; HOWARD LEDERER, an individual; RAYMOND BITAR, an individual; PHILLIP GORDON, an individual; ANDY BLOCH, an individual, PHIL IVEY, an individual; PERRY FRIEDMAN, an individual; JOHN JUANDA, an individual; ERIK LINDGREN, an individual; ERIK SEIDEL, an individual; MICHAEL MATUSOW, an individual, ALLEN CUNNINGHAM, an individual; GUS HANSEN, an individual; PATRIK ANTONIUS, an individual; RAFE FURST, an individual; TILTWARE LLC, a California limited liability company; POCKET KINGS LTD, an Irish limited company; KOLYMA CORPORATION A.V.V., a Curacao company; POCKET KINGS CONSULTING LTD., an Irish limited liability company; FILCO LTD., a limited company, VANTAGE LTD., a limited company; RANSTON LTD., a limited company; MAIL MEDIA LTD., a limited company; OXALIC LTD., a ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: CV-11-08591 GW (AGRx) NOTICE OF MOTION AND MOTION TO DISMISS THIRD AMENDED COMPLAINT FILED BY DEFENDANT HOWARD LEDERER [FED. R. CIV. P. 12(b)(2), 12(b)(5)] [Filed And Served Concurrently With Tiltware’s Notice of Motion and Motion to Dismiss Plaintiffs’ Third Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6); Chris Ferguson’s Notice of Motion and Motion to Dismiss Plaintiffs Third Amended Complaint pursuant to Res Judicata, Colorado River Abstention and Mootness; the Motions to Dismiss of Chris Ferguson, Andrew Bloch and Erik Seidel; (Proposed) Orders] Date: July 6, 2017 Time: 8:30 a.m. Courtroom: 9D Case 2:11-cv-08591-GW-AGR Document 189 Filed 05/25/17 Page 1 of 23 Page ID #:2995 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 NOTICE OF MOTION AND MOTION TO DISMISS UNDER FRCP 12(b)(2), 12(b)(5) LEGAL\30496329\1 limited company; ORINIC LTD., a limited company; IAN IMRICH, an individual; LAW OFFICES OF IAN IMRICH, APC, a California Corporation; COZEN O’CONNOR, a limited liability partnership; GROUP BERNARD TAPIE, a French general partnership; BERNARD TAPIE, an individual and DOES 1 through 10, inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) TO THE COURT AND TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: Please take notice that on July 6, 2017, at 8:30 a.m., or as soon thereafter as the matter may be heard, in the courtroom of Hon. George H. Wu, Courtroom 9D, located at 350 West 1st Street, Los Angeles, California 90012, Defendant Howard Lederer will, and hereby does, move the Court, pursuant to Federal Rule of Civil Procedure 12(b)(2), and 12(b)(5) for an order dismissing Plaintiffs’ Third Amended Complaint (“TAC”) for failure to properly serve the summons and complaint pursuant to Rule 12(b)(5) and for lack of personal jurisdiction under Rule 12(b)(2). Mr. Lederer also hereby gives Notice of his intent to join, and hereby does join in the companion Motion to Dismiss Plaintiffs’ TAC filed by Tiltware LLC (“Tiltware”) pursuant to Rule 12(b)(6) and in the motions to dismiss filed by all other Defendants. This Motion is based upon this notice, the attached Memorandum of Points and Authorities, the Declarations of Howard Lederer and Nathan Dooley filed on July 11, 2016, and the Request for Judicial Notice filed on July 11, 2016, and such other oral and documentary evidence as may be received by the court at the time of hearing on this motion. Case 2:11-cv-08591-GW-AGR Document 189 Filed 05/25/17 Page 2 of 23 Page ID #:2996 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 NOTICE OF MOTION AND MOTION TO DISMISS UNDER FRCP 12(b)(2), 12(b)(5) LEGAL\30496329\1 This motion is made following the conference of counsel pursuant to L.R. 7-3. Lederer’s counsel attempted to reach Plaintiffs’ counsel by email on May 19 but the parties were unable to reach a resolution that would eliminate the necessity for a hearing. Dated: May 25, 2017 COZEN O’CONNOR By: /S/ Erik L. Jackson Nathan Dooley Alexander M. Kargher Attorneys for Defendants Tiltware, LLC, Howard Lederer, Andy Bloch, and Eric Seidel Case 2:11-cv-08591-GW-AGR Document 189 Filed 05/25/17 Page 3 of 23 Page ID #:2997 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 i NOTICE OF MOTION AND MOTION TO DISMISS UNDER FRCP 12(b)(2), 12(b)(5) LEGAL\30496329\1 TABLE OF CONTENTS Page I. INTRODUCTION ........................................................................................... 1 II. STATEMENT OF FACTS .............................................................................. 1 A. The Parties ............................................................................................. 1 B. Plaintiff Has No Hard Evidence That Lederer Was Actually Served With The Summons and Complaint ...................................................... 3 C. Lederer has No Ties To California ....................................................... 3 D. The TAC Fails to Establish a Basis for Personal Jurisdiction .............. 3 III. MOTION UNDER FRCP 12(b)(5) TO DISMISS ON BEHALF OF DEFENDANT LEDERER .............................................................................. 4 A. There Is No Evidence That Plaintiffs Served Mr. Lederer ................... 4 IV. MOTION UNDER FRCP 12(b)(2) TO DISMISS ON BEHALF OF DEFENDANT LEDERER .............................................................................. 5 A. It Is Plaintiff’s Burden to Demonstrate That Personal Jurisdiction Exists As To Howard Lederer ............................................................... 5 B. The Motion Should Be Granted Because Plaintiffs Have Not And Cannot Demonstrate That Any of The Three Traditional Bases for Jurisdiction Are Present As To Mr. Lederer ......................................... 6 C. The Motion To Dismiss Should Be Granted Because Plaintiff Cannot Establish General or Specific Personal Jurisdiction Over Mr. Lederer............................................................................................ 7 (1) Plaintiff Cannot Establish General Jurisdiction.......................... 8 (2) Plaintiff Cannot Establish Specific Personal Jurisdiction .......... 9 (a) There Was No Purposeful Availment or Direction .......... 9 (b) Commission of Intentional Tort ..................................... 11 (c) The Brunt of the “Harm” Was Not in the Forum State .. 12 (d) The Claim Did Not Arise Out Of Mr. Lederer’s Forum- Related Activities ........................................................... 13 D. It Would Be Unreasonable To Hail Mr. Lederer Into Court In California ............................................................................................. 13 V. Joinder in Grounds and Arguments, Motions, and Points Authorities filed by Defendants Tiltware AND Ferguson ............................................................. 15 Case 2:11-cv-08591-GW-AGR Document 189 Filed 05/25/17 Page 4 of 23 Page ID #:2998 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 ii NOTICE OF MOTION AND MOTION TO DISMISS UNDER FRCP 12(b)(2), 12(b)(5) LEGAL\30496329\1 VI. CONCLUSION ............................................................................................. 15 Case 2:11-cv-08591-GW-AGR Document 189 Filed 05/25/17 Page 5 of 23 Page ID #:2999 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 NOTICE OF MOTION AND MOTION TO DISMISS UNDER FRCP 12(b)(2), 12(b)(5) LEGAL\30496329\1 TABLE OF AUTHORITIES Page(s) Cases Allen v. Ferguson, 791 F.2d 611 (7th Cir. 1986) ..................................................................................... 4 Amoco Egypt Oil Co. v. Leonis Navigation Co., 1 F. 3d 848 (9th Cir. 1993) ........................................................................................ 8 Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082 (9th Cir. 2000) ................................................................................... 8 Bolkiah v. Sup. Ct., 74 Cal. App. 4th 984 (1999) ...................................................................................... 4 Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985)............................................................................................. 9, 10 Burnham v. Sup. Ct., 495 U.S. 604 (1990)............................................................................................... 5, 6 Calder v. Jones, 465 U.S. 783 (1984)........................................................................................... 10, 11 Cardroom International, LLC v. Scheinberg et al., Case No. 2:12-cv-02870 ............................................................................................ 3 Caruth v. Int’l Psychoanalytical Ass’n, 59 F. 3d 126 (9th Cir. 1995) .................................................................................. 5, 6 Core-Vent Corp. v. Nobel Indus., AB, 11 F. 3d 1482 (9th Cir. 1993) .................................................................................. 12 Cruz v. Fagor Am., 146 Cal.App.4th 488 (2007) ...................................................................................... 4 Data Disc, Inc. v. Sys. Tech. Assoc., Inc., 557 F.2d 1280 (9th Cir. 1977) ............................................................................... 5, 6 Doe v. Unocal Corp., 248 F.3d 915 (9th Cir. 2001) ..................................................................................... 5 Case 2:11-cv-08591-GW-AGR Document 189 Filed 05/25/17 Page 6 of 23 Page ID #:3000 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 iv NOTICE OF MOTION AND MOTION TO DISMISS UNDER FRCP 12(b)(2), 12(b)(5) LEGAL\30496329\1 Dole Food Co., Inc. v. Watts, 303 F. 3d 1104 (9th Cir. 2002) .................................................................................. 7 Edmunds v. Sup. Ct. (Ronson), 24 Cal. App.4th 221 (1994) ..................................................................................... 10 Fahmy v. Hogge, No. CV 08-1152 PSG, 2008 WL 4614322 (C.D. Cal., Oct. 14, 2008) ......... 6, 11, 12 Fed. Deposit Ins. Corp. v. British-American Ins. Co., 828 F.2d 1439 (9th Cir. 1987) ........................................................................... 13, 14 Gray & Co. v. Firstenburg Machinery Co., Inc., 913 F.2d 758 (9th Cir. 1990) ................................................................................... 14 Harris Rutsky & Co. Ins. Serv., Inc. v. Bell & Clements Ltd., 328 F. 3d 1122 (9th Cir. 2003) .................................................................................. 6 IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254 (3d Cir. 1998) .................................................................................... 11 Int’l Shoe Co. v. Wash., 326 U.S. 310 (1945)............................................................................................... 5, 7 Limo Hosting v. Fiks, No. C 08-2474 BZ, 2008 WL 5118789 (N.D. Cal. Dec. 4, 2008) .......................... 11 Metro-Goldwyn-Mayer Inc. v. Grokster, Ltd., 243 F. Supp. 2d 1073 (C.D. Cal. 2003) ..................................................................... 5 Panavision Int’l, L.P. v. Toeppen, 141 F. 3d 1316 (9th Cir. 1998) ...................................................................... 7, 10, 13 Pavlovich v. Sup.Ct., 29 Cal.4th 262 .......................................................................................................... 12 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797 (9th Cir. 2004) ..................................................................... 8, 9, 10, 11 Sher v. Johnson, 911 F.2d 1357 (9th Cir. 1990) ................................................................................. 14 Sinatra v. Nat’l Enquirer, Inc., 854 F.2d 1191 (9th Cir. 1988) ................................................................................... 9 Case 2:11-cv-08591-GW-AGR Document 189 Filed 05/25/17 Page 7 of 23 Page ID #:3001 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 v NOTICE OF MOTION AND MOTION TO DISMISS UNDER FRCP 12(b)(2), 12(b)(5) LEGAL\30496329\1 Terracom v. Valley Nat’l Bank, 49 F.3d 555 (9th Cir. 1995) ..................................................................................... 14 Vons Cos., Inc. v. Seabest Foods, Inc. .......................................................................... 10 Wash. Restaurant Mgm’t v. Vons Cos., Inc., 522 U.S. 808 (1997)................................................................................................. 10 Washington Shoe Co. v. A-Z Sporting Goods Inc., 704 F.3d 668 (9th Cir. 2012) ................................................................................... 12 West Corp. v. Sup. Ct. (Sanford), 116 Cal. App. 4th 1167 (2004) .................................................................................. 7 Statutes Cal. Civ. Code § 1750 et seq. ......................................................................................... 2 Cal. Civ. Proc. Code § 417.20(a) .................................................................................... 4 Cal. Code Civ. Proc. § 410.10 ........................................................................................ 5 Cal. Code Civ. Proc., § 415.40 ................................................................................... 3, 4 California Business and Professions Code Section 17200 et seq. .................................. 2 Relief Under the Racketeer-Influenced Corrupt Organizations Act, 18 U.S.C. § 1964 et seq. ............................................................................................ 2, 4 Other Authorities FRCP 4(k)(1)(A) ............................................................................................................. 5 FRCP 12(b)(2) ............................................................................................................ 1, 5 FRCP 12(b)(5) ............................................................................................................ 1, 4 FRCP 12(b)(6) ................................................................................................................ 2 Case 2:11-cv-08591-GW-AGR Document 189 Filed 05/25/17 Page 8 of 23 Page ID #:3002 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 1 NOTICE OF MOTION AND MOTION TO DISMISS UNDER FRCP 12(b)(2), (5) LEGAL\30496329\1 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendant Howard Lederer was not properly served and the Third Amended Complaint (“TAC”) does not allege facts to establish personal jurisdiction. Mr. Lederer is a resident of Nevada. Mr. Lederer has not worked in California since 2006 with the exception of an occasional poker tournament. He does not enjoy substantive ties to the state that would justify the exercise of personal jurisdiction over him. In addition, the exercise of jurisdiction over Mr. Lederer would be plainly unreasonable. California has limited interest in this dispute, styled as a nation-wide class action, and based upon an indictment against other individuals and entities that was handed down by the U.S. Attorney for the Southern District of New York. Accordingly, the TAC must be dismissed pursuant to Rule 12(b)(2) because the Court lacks personal jurisdiction over Mr. Lederer. With respect to the request for dismissal for improper service of process pursuant to FRCP 12(b)(5), Plaintiffs have no hard evidence establishing that Mr. Lederer actually received service of their summons and complaint by certified mail, as required by California law. Thus, the Motion must also be granted for insufficient service of process upon Mr. Lederer under FRCP 12(b)(5). II. STATEMENT OF FACTS A. The Parties This action is styled as a class action even though many of the claims set forth in the TAC are so highly individualized that a class will likely never be certified. The representative Plaintiffs are a self-described professional poker player, Lary Kennedy, and another individual by the name of Greg Omotoy. In January of 2008, Ms. Kennedy’s and Mr. Omotoy’s accounts were seized by the operators of the FullTiltPoker.com because Ms. Kennedy violated the terms of service for the website by, among other things, playing on Mr. Omotoy’s account. [See Dkt. No. 181, TAC ¶¶ 53, 96; see also Dkt. 101, Ex. R at ¶ 29] In Lary Kennedy v. Full Tilt Poker, 09-cv- Case 2:11-cv-08591-GW-AGR Document 189 Filed 05/25/17 Page 9 of 23 Page ID #:3003 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 2 NOTICE OF MOTION AND MOTION TO DISMISS UNDER FRCP 12(b)(2), (5) LEGAL\30496329\1 07964 MMM (AGRx), Kennedy and Omotoy filed suit against Mr. Lederer and a long list of other Defendants on October 1, 2009, claiming that their funds should not have been seized. That matter was remanded to Los Angeles Superior Court on October 12, 2010, and subsequently dismissed. Lary Kennedy v. Full Tilt Poker, Case No. BC423036 (“Full Tilt Poker”). It is now fully briefed on appeal. With the TAC, Plaintiffs now purport to represent a nationwide class of Plaintiffs setting forth claims for (1) Money Had and Received; (2) Unjust Enrichment; (3) Relief Under the Consumers Legal Remedy Act, Cal. Civ. Code § 1750 et seq. (“CLRA”); (4) Fraud; (5) Relief Under California Business and Professions Code Section 17200 et seq.; and (6) Relief Under the Racketeer- Influenced Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1964 et seq. (See generally TAC.) The only harm alleged by Kennedy and Omotoy, however, remains the same seizure of their account that is at issue in Full tilt Poker, Case No. BC423036. The TAC names over 20 Defendants. Almost all of the Defendants are out-of- state residents. As discussed in more detail below, according to the TAC, the various Defendants conspired to engage in a form of money laundering. Neither Omotoy nor Kennedy claim to represent a financial institution that was allegedly defrauded by the payment processing described in the TAC. So they cannot claim to be harmed by the alleged money laundering.1 The gist of their claim appears to be they would not have played poker on the Fulltiltpoker.com if they had known how various transactions were processed. In reality, however, the only alleged harm that the representative Plaintiffs suffered in this case, as described in their Complaint filed in Full Tilt Poker, was that their accounts associated with FullTiltPoker.com were seized for violating the terms of service. Notably, Kennedy has admitted in multiple pleadings that she violated the terms of service by playing on Omotoy’s account. Against this backdrop, 1 This point is raised in connection with a Motion to Dismiss pursuant to Rule 12(b)(6). Mr. Lederer joins in that Motion. Case 2:11-cv-08591-GW-AGR Document 189 Filed 05/25/17 Page 10 of 23 Page ID #:3004 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 3 NOTICE OF MOTION AND MOTION TO DISMISS UNDER FRCP 12(b)(2), (5) LEGAL\30496329\1 Ms. Kennedy and Mr. Omotoy attempt to bring a nation-wide class action for money laundering based upon an indictment handed down by the U.S. Attorney for the Southern District of New York. Plaintiff’s counsel, Cyrus Sanai, has filed a number of lawsuits seeking to extort settlements from anyone he can discover who may be associated with Full Tilt Poker. In each of these cases, he has failed to serve many of the named defendants. B. Plaintiff Has No Hard Evidence That Lederer Was Actually Served With The Summons and Complaint According to the TAC, Mr. Lederer resides in Las Vegas, Nevada. Plaintiffs claim to have served him via certified mail under Cal. Code Civ. Proc., § 415.40. Mr. Lederer denies that he was served at all. Plaintiffs’ counsel has refused to provide undersigned counsel with any receipt of service or other hard evidence of service on any of these Defendants. [Dkt. No. 100-3, Declaration of Nathan Dooley “Dooley Decl.”), Ex. A.] C. Lederer has No Ties To California Mr. Lederer lives in Las Vegas, Nevada. [Dkt. No. 100-1, Lederer Decl., ¶ 3.]2 Mr. Lederer does not have an office in California. [See id. ¶ ¶ 3-11.] He does not pay taxes in California. [Id.] He has no employees in California and owns no property in California. [Id.] He was a manager of Defendant Tiltware, which was a California LLC, but he has not done any work for that company in California since mid-2006. [Id. at ¶ 5.] D. The TAC Fails to Establish a Basis for Personal Jurisdiction Absent from the TAC are any allegations that would suggest that Mr. Lederer has any ties whatsoever to California. There is no allegation, for example, that Mr. Lederer does business in California, either specifically with respect to Plaintiff or 2 In support of this Motion, Mr. Lederer submits his earlier filed Declaration filed in support of a similar Motion to Dismiss the FAC filed in the related matter, Cardroom International, LLC v. Scheinberg et al., Case No. 2:12-cv-02870. [Dkt. No. 24-8.]. Case 2:11-cv-08591-GW-AGR Document 189 Filed 05/25/17 Page 11 of 23 Page ID #:3005 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 4 NOTICE OF MOTION AND MOTION TO DISMISS UNDER FRCP 12(b)(2), (5) LEGAL\30496329\1 in general. The TAC also does not allege that Lederer committed any tort in California. The TAC similarly contains no allegation that any of the alleged fraud or underlying RICO predicate acts, took place in California. III. MOTION UNDER FRCP 12(B)(5) TO DISMISS ON BEHALF OF DEFENDANT LEDERER A. There Is No Evidence That Plaintiffs Served Mr. Lederer Plaintiffs failed to serve Howard Lederer. In determining validity of prior service of process, the federal court applies the law of the state under which the service was made. Allen v. Ferguson, 791 F.2d 611, 616 (7th Cir. 1986). “[S]trict compliance with service requirements is required under California law.” Bolkiah v. Sup. Ct., 74 Cal. App. 4th 984, 1000 (1999); Cruz v. Fagor Am., 146 Cal.App.4th 488, 498-99 (2007). Here, Plaintiffs claim to have attempted service on Lederer by certified mail under Cal. Code Civ. Proc. § 415.40 prior to Tiltware’s removal of the case to this Court. [See Dkt. No. 100-4, Dooley Decl. Ex B]. Lederer was allegedly served in Nevada. Section 415.40 states: A summons may be served on a person outside this state in any manner provided by this article or by sending a copy of the summons and of the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt. Service of a summons by this form of mail is deemed complete on the 10th day after such mailing. Cal. Civ. Proc. Code § 415.40. With respect to service by certified mail under California law, the proof of service requires proof of actual receipt or other hard evidence of service for the service to be valid. Bolkiah, 74 Cal. App. 4th at 1000 (“the proof of service must include ‘evidence satisfactory to the court establishing actual delivery to the person to be served, by a signed return receipt or other evidence.’”). This requirement is applied to out of state Defendants served by certified mail as stated in Cal. Civ. Proc. Code § 417.20(a). Section 417.20(a) states that “if service is made by mail pursuant to Section 415.40, proof of service shall include evidence satisfactory to the court Case 2:11-cv-08591-GW-AGR Document 189 Filed 05/25/17 Page 12 of 23 Page ID #:3006 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 5 NOTICE OF MOTION AND MOTION TO DISMISS UNDER FRCP 12(b)(2), (5) LEGAL\30496329\1 establishing actual delivery to the person to be served, by a signed return receipt or other evidence.” In this case, there is no such evidence and thus, no proof of service to comply with California law. IV. MOTION UNDER FRCP 12(B)(2) TO DISMISS ON BEHALF OF DEFENDANT LEDERER A. It Is Plaintiff’s Burden to Demonstrate That Personal Jurisdiction Exists As To Howard Lederer Traditionally, a California district court may exercise jurisdiction over a defendant if the defendant: (a) is personally served while physically present in California, (b) is domiciled within the State, or (c) consents to or appears in the action. See Burnham v. Sup. Ct., 495 U.S. 604, 609 (1990); see also Metro-Goldwyn-Mayer Inc. v. Grokster, Ltd., 243 F. Supp. 2d 1073, 1082 (C.D. Cal. 2003). In addition, a district court also may exercise jurisdiction over a defendant that has sufficient minimum contacts with California under its long-arm statute. See Fed. R. Civ. P. 4(k)(1)(A); Cal. Code Civ. Proc. § 410.10; Int’l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945).3 Plaintiffs bear the burden of establishing personal jurisdiction. Doe v. Unocal Corp., 248 F.3d 915, 922 (9th Cir. 2001). Plaintiffs must make a prima facie showing of jurisdictional facts to survive a motion to dismiss on personal jurisdiction grounds. See Caruth v. Int’l Psychoanalytical Ass’n, 59 F. 3d 126, 128 (9th Cir. 1995); Data Disc, Inc., 557 F. 2d 1280 at 1285. 3 The California long-arm statute provides that a court may exercise jurisdiction on any basis not inconsistent with the States Constitution or the Constitution of the United States. Cal. Civ. Proc. Code § 410.10. Section 410.10 imposes limits on the power of California courts to exercise personal jurisdiction that are “‘coextensive with the outer limits of due process under the state and federal constitutions, as those limits have been defined by the United States Supreme Court.’” Data Disc, Inc. v. Sys. Tech. Assoc., Inc., 557 F.2d 1280, 1288 (9th Cir. 1977) (quoting Republic Int’l Corp. v. Amco Engineers, Inc., 516 F.2d 161, 167 (9th Cir. 1975)). Case 2:11-cv-08591-GW-AGR Document 189 Filed 05/25/17 Page 13 of 23 Page ID #:3007 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 6 NOTICE OF MOTION AND MOTION TO DISMISS UNDER FRCP 12(b)(2), (5) LEGAL\30496329\1 Stated another way, the Plaintiffs must demonstrate facts that if true would support jurisdiction over the defendant. Data Disc., 557 F. 2d at 1285. Where the Court determines that it will receive only affidavits to rule on the motion to dismiss, the plaintiff must make its showing through the submitted materials. Caruth, 59 F. 3d at 128. These materials must demonstrate facts which support a finding of jurisdiction in order to avoid a motion to dismiss. Data Disc, 557 F.2d at 1285 (citing United States Ry. Equip. Co. v. Port Huron & Detroit Rr. Co., 495 F. 2d 1127, 1128 (7th Cir. 1974); O’Hare Int’l Bank v. Hampton, 437 F. 2d 1173, 1176 (7th Cir. 1971)). “A plaintiff, in defending itself against a motion to dismiss for lack of personal jurisdiction is ‘obligated to come forward with facts, by affidavit or otherwise, supporting personal jurisdiction.’” Fahmy v. Hogge, No. CV 08-1152 PSG (SHx), 2008 WL 4614322, at *5 (C.D. Cal., Oct. 14, 2008) (quoting Amba Mktg. Systems, Inc. v. Jobar Int’l., Inc., 551 F. 2d 784, 787 (9th Cir. 1977)) (emphasis added). In determining whether the plaintiff has presented a prima facie case, the Court must assume the truth of the complaint’s uncontroverted allegations. See Harris Rutsky & Co. Ins. Serv., Inc. v. Bell & Clements Ltd., 328 F. 3d 1122, 1129 (9th Cir. 2003). However, once the defendant has contradicted allegations contained in the complaint, plaintiff may not rest on the pleadings, but must instead present admissible evidence to support the court’s exercise of personal jurisdiction. See Data Disc, 557 F. 2d at 1284. Plaintiffs cannot meet their heavy burden in this case as to Mr. Lederer. Indeed, as explained below, none of the three traditional bases for jurisdiction are present. B. The Motion Should Be Granted Because Plaintiffs Have Not And Cannot Demonstrate That Any of The Three Traditional Bases for Jurisdiction Are Present As To Mr. Lederer Defendant Lederer is not subject to personal jurisdiction under any of the three traditional bases for jurisdiction: (a) personal service on persons physically present in Case 2:11-cv-08591-GW-AGR Document 189 Filed 05/25/17 Page 14 of 23 Page ID #:3008 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 7 NOTICE OF MOTION AND MOTION TO DISMISS UNDER FRCP 12(b)(2), (5) LEGAL\30496329\1 California, (b) domicile within the State, or (c) consent to or appearance in the action. See Burnham, 495 U.S. at 609. First, Mr. Lederer was not served with the summons in California. Plaintiff claims to have served him Las Vegas, Nevada. Second, Mr. Lederer does not reside in California. He is a resident of Nevada. Third, Mr. Lederer has not consented to this Court’s jurisdiction; nor has he appeared in this action. Thus, if personal jurisdiction exists, it must be conveyed by the long-arm statute. C. The Motion To Dismiss Should Be Granted Because Plaintiff Cannot Establish General or Specific Personal Jurisdiction Over Mr. Lederer Since personal jurisdiction over Lederer does not otherwise exist, Plaintiffs must show that Mr. Lederer has at least “minimum contacts” with California, such that the exercise of jurisdiction “does not offend traditional notions of fair play and substantial justice.” Dole Food Co., Inc. v. Watts, 303 F. 3d 1104, 1110-11 (9th Cir. 2002) (citing Int’l Shoe, 326 U.S. at 316). Under the minimum contacts test, an essential criterion is whether the “quality and nature” of the defendant’s activity is such that it is reasonable and fair to require the defendant to conduct his defense in that state. West Corp. v. Sup. Ct. (Sanford), 116 Cal. App. 4th 1167, 1172 (2004) (citations omitted).4 Courts have adopted a two-tiered approach to analyze whether a non-resident defendant’s contacts with the forum state are sufficiently substantial so as to comport both with the Constitution and with traditional notions of fair play and substantial justice. Int’l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945). This two-tiered approach involves a determination of whether a court has general or specific jurisdiction over a defendant. See Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998). 4 Where there is no applicable federal statute governing personal jurisdiction, the district court applies the law of the state in which the district court sits. See Panavision Int’l, L.P. v. Toeppen, 141 F. 3d 1316, 1320 (9th Cir. 1998). Case 2:11-cv-08591-GW-AGR Document 189 Filed 05/25/17 Page 15 of 23 Page ID #:3009 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 8 NOTICE OF MOTION AND MOTION TO DISMISS UNDER FRCP 12(b)(2), (5) LEGAL\30496329\1 (1) Plaintiff Cannot Establish General Jurisdiction General jurisdiction exists when there are “substantial” or “continuous and systematic” contacts with the forum state, even if the cause of action is unrelated to those contacts. Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082, 1086 (9th Cir. 2000)(citing Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 415 (1984)). “The standard for establishing general jurisdiction is ‘fairly high.’” Id. (quoting Brand v. Menlove Dodge, 796 F.2d 1070, 1073 (9th Cir. 1986)). The contacts with the forum state must be of a sort that “approximate physical presence.” Id.; see also Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir. 2004) (“This is an exacting standard, as it should be, because a finding of general jurisdiction permits a defendant to be haled into court in the forum state to answer for any of its activities anywhere in the world.”). “Factors to be taken into consideration are 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.” Bancroft & Masters, Inc., 223 F.3d at 1086. Finally, even if the contacts are substantial or continuous and systematic, the assertion of general jurisdiction must be reasonable. Amoco Egypt Oil Co. v. Leonis Navigation Co., 1 F. 3d 848, 852-53 (9th Cir. 1993). Here, Plaintiffs have not alleged any facts whatsoever which would support the exercise of general personal jurisdiction in California over Lederer. [See generally TAC.] This is because Plaintiff cannot so allege. The TAC concedes that Lederer is a resident of Nevada, not California. (TAC, ¶ 5.) Lederer does not own property in California. [Dkt. No. 100-1, Lederer Decl. ¶ 8.] He is not registered to do business in California, and does not pay taxes in California. [See id. ¶¶ 5-11.] He does not have employees in California, does not have an office in California and otherwise does not conduct business in California. [Id. ¶¶ 5-11.] Thus, Lederer does not have Case 2:11-cv-08591-GW-AGR Document 189 Filed 05/25/17 Page 16 of 23 Page ID #:3010 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 9 NOTICE OF MOTION AND MOTION TO DISMISS UNDER FRCP 12(b)(2), (5) LEGAL\30496329\1 substantial, continuous or systematic contacts with California as required for general personal jurisdiction. [See id.] (2) Plaintiff Cannot Establish Specific Personal Jurisdiction In order for the forum state to properly assert specific jurisdiction over an out of state defendant, the defendant must have purposefully directed its activities towards residents of the forum state in connection with the claim alleged. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985). The Ninth Circuit has developed a three-part test for assessing the exercise of specific personal jurisdiction over a party: (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) The claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) The exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. Schwarzenegger, 374 F.3d at 802; see also Sinatra v. Nat’l Enquirer, Inc., 854 F.2d 1191, 1195 (9th Cir. 1988). “The plaintiff bears the burden of satisfying the first two prongs of the test. . . . If the plaintiff succeeds in satisfying both of the first two prongs, the burden then shifts to the defendant to ‘present a compelling case’ that the exercise of jurisdiction would not be reasonable.” Schwarzenegger, 374 F.3d at 802 (quoting Burger King, 471 U.S. at 476-78). (a) There Was No Purposeful Availment or Direction In Burger King, the United States Supreme Court extensively discussed the level of “purposeful availment” that must be demonstrated before a court may constitutionally exercise personal jurisdiction over a nonresident defendant: The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with a Case 2:11-cv-08591-GW-AGR Document 189 Filed 05/25/17 Page 17 of 23 Page ID #:3011 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 10 NOTICE OF MOTION AND MOTION TO DISMISS UNDER FRCP 12(b)(2), (5) LEGAL\30496329\1 forum State. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking its benefits and protections of its laws. Burger King, 471 U.S. at 474-75 (emphasis added) (citing Hanson v. Denckla, 357 U.S. 235, 253 (1958). The “purposeful availment” requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of “fortuitous” or “attenuated” contacts. Id. at 475. Indeed, “‘absent some form of ‘purposeful availment,’ the fact a defendant’s conduct in the forum state has some relationship to the causes of action asserted in the lawsuit, cannot, in and of itself, render jurisdiction reasonable.’” Edmunds v. Sup. Ct. (Ronson), 24 Cal. App.4th 221, 231 (1994) (citation omitted). According to the California Supreme Court in Vons Cos., Inc. v. Seabest Foods, Inc.: [T]he cause of action must arise out of an act done or transaction consummated in the forum, or defendant must perform some other act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws. 14 Cal. 4th 434, 448 (1996), cert. denied subnom. Wash. Restaurant Mgm’t v. Vons Cos., Inc., 522 U.S. 808 (1997). The purposeful direction or availment requirement for specific jurisdiction is analyzed in intentional tort cases such as the case at bar under the “effects” test derived from Calder v. Jones, 465 U.S. 783 (1984); see Schwarzenegger, 374 F.3d at 802) (“[a] purposeful direction analysis . . . is most often used in suits sounding in tort”). The effects test has three elements: the defendant must have “(1) committed [an] intentional act [ ](2) expressly aimed at the forum state (3) causing harm, the brunt of which is suffered - and which the defendant knows is likely to be suffered in the forum state.” Panavision, 141 F. 3d at 1321. In the Ninth Circuit, the plaintiff Case 2:11-cv-08591-GW-AGR Document 189 Filed 05/25/17 Page 18 of 23 Page ID #:3012 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 11 NOTICE OF MOTION AND MOTION TO DISMISS UNDER FRCP 12(b)(2), (5) LEGAL\30496329\1 must show that the defendant’s intentional act was “expressly aimed” at the forum state. Schwarzenegger, 374 F. 3d at 806-807 (“[b]ecause the Ohio dealership ‘had no reason to believe that any Californians would see [the misappropriated images],’ the mere fact that Mr. Schwarzenegger lived in California did not confer jurisdiction where ‘the express aim [wa]s local’”). Here, Plaintiffs allege that Lederer appeared in online and television advertisements for Full Tilt. In addition, Plaintiffs’ claim that Lederer admitted to being the face of Full Tilt and that people deposited money with and played on Full Tilt because they trusted him. [TAC ¶¶ 36-38.] These allegations do not create grounds to haul Lederer into Court in California under this prong because Plaintiffs do not allege that the statements Lederer made in the advertisements were directed at California. Consequently, it cannot reasonably be disputed that Plaintiff has not met this prong of the specific jurisdiction analysis. (b) Commission of Intentional Tort Plaintiff’s TAC does not allege any facts to establish that Lederer actually committed any of torts alleged in the TAC. No facts are alleged, for example, setting forth the specific conduct by Lederer that would give rise to a jurisdictional nexus with California. For this reason, the TAC should be dismissed as to Lederer for lack of personal jurisdiction. See, e.g., Fahmy v. Hogge, No. CV 08-1152 PSG (SHx), 2008 WL 4614322, at *5 (C.D. Cal. 2008); Limo Hosting v. Fiks, No. C 08-2474 BZ, 2008 WL 5118789, *1-*2 (N.D. Cal. Dec. 4, 2008). The Fahmy court, for example, dismissed a complaint against a nonresident defendant for lack of personal jurisdiction because “. . . Plaintiff has failed to submit any admissible evidence showing that Defendant expressly aimed his conduct at the forum state by targeting Plaintiffs, knowing that she was a resident of California.” IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254 (3d Cir. 1998) (“[K]nowledge that the plaintiff is located in the forum is necessary to the application of Calder. . . .”); Case 2:11-cv-08591-GW-AGR Document 189 Filed 05/25/17 Page 19 of 23 Page ID #:3013 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 12 NOTICE OF MOTION AND MOTION TO DISMISS UNDER FRCP 12(b)(2), (5) LEGAL\30496329\1 Pavlovich v. Sup.Ct., 29 Cal.4th 262, 270-71 (“most courts agree that merely asserting that a defendant knew or should have known that his intentional acts would cause harm in the forum state is not enough to establish jurisdiction under the effects test.”). Id. at *5. Here, Plaintiffs allege that Lederer appeared in online and television advertisements for Full Tilt. In addition, Plaintiffs’ claim that Lederer admitted to being the face of Full Tilt and that people deposited money with and played on Full Tilt because they trusted him. [TAC ¶¶ 36-38.] These allegations do not create grounds to haul Lederer into Court in California because Plaintiffs do not allege that the statements Lederer made in the advertisements were false. Washington Shoe Co. v. A-Z Sporting Goods Inc., 704 F.3d 668, 678-679 (9th Cir. 2012). In fact, Plaintiffs do not even bother alleging what statements Lederer made and when those statements were made. Thus, Plaintiff also has not met this prong. (c) The Brunt of the “Harm” Was Not in the Forum State To satisfy this third prong of the effects test, the “brunt of the harm” caused by the defendant’s intentional tort must be suffered in the forum state. See Core-Vent Corp. v. Nobel Indus., AB, 11 F. 3d 1482, 1486 (9th Cir. 1993). Here, Plaintiffs do not allege that Lederer’s conduct was directed at California. Instead, Plaintiffs are alleging harm across the United States related to harm that is primarily alleged in a Complaint filed by the U.S. Attorney for the Southern District of New York. The only two California Plaintiffs in identified here are Kennedy and Omotoy. The class, however, includes “at least 200,000 individuals” residing “throughout the United States (excluding Washington State).” Thus, the brunt of the harm does not appear to have been suffered in California. Case 2:11-cv-08591-GW-AGR Document 189 Filed 05/25/17 Page 20 of 23 Page ID #:3014 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 13 NOTICE OF MOTION AND MOTION TO DISMISS UNDER FRCP 12(b)(2), (5) LEGAL\30496329\1 (d) The Claim Did Not Arise Out Of Mr. Lederer’s Forum- Related Activities This requirement is met if the Plaintiffs can plead and prove that it would not have been injured “but for” the defendant’s actionable activities in the forum state. Panavision, 141 F.3d at1322 (9th Cir. 1998). Plaintiffs fail to allege any facts to satisfy this “but for” requirement. Plaintiffs fail to allege any facts establishing that Lederer committed any act in California at all. Indeed, the allegations in the TAC are not clear as to what any defendant did. Rather, all the Defendants are simply lumped together without distinction, as if they were all the same individual. 5 Mr. Lederer is a resident of Las Vegas, Nevada. Many of the other named Defendants are also foreign residents or entities. Thus, based on the allegations set forth in the TAC, there does not appear to be a direct tie to California. D. It Would Be Unreasonable To Hail Mr. Lederer Into Court In California The assertion of specific jurisdiction over Lederer would be unreasonable. The following factors are considered: (1) The extent of purposeful interjection into the forum state; (2) the burden on the defendant of defending in the forum; (3) the extent of conflict with the sovereignty of defendant’s state; (4) the forum state’s interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to plaintiff’s interest in convenient and effective relief; and (7) the existence of an alternative forum. Fed. Deposit Ins. Corp. v. British-American Ins. Co., 828 F.2d 1439, 1442 (9th Cir. 1987) (citing Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 840 (9th Cir. 1986)). A balancing of the factors can only support a finding that the exercise of specific jurisdiction over Lederer would be unreasonable. First, as discussed above Mr. Lederer did not inject himself into California. Lederer6 resides in Nevada. [See 5 This argument is covered in greater detail in conjunction with the Motion to Dismiss Pursuant to 12(b)(6) filed by Tiltware LLC. Mr. Lederer has joined in that Motion. 6 Mr. Lederer is a managing member of Tiltware. [Dkt. No. 100-1, Lederer Decl. ¶ 2.] His activities as manager of an LLC, however, cannot without more Case 2:11-cv-08591-GW-AGR Document 189 Filed 05/25/17 Page 21 of 23 Page ID #:3015 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 14 NOTICE OF MOTION AND MOTION TO DISMISS UNDER FRCP 12(b)(2), (5) LEGAL\30496329\1 Dkt. No. 100-1, Lederer Decl. ¶ 3.] Mr. Lederer does not have any continuous or systematic ties with California. [See id.] Plaintiffs failed to allege any of the conduct giving rise to their claims actually took place in California. This factor strongly supports the conclusion that it would be unreasonable to exercise jurisdiction over Lederer. Second, because Lederer has no ties to California, he would be substantially burdened if forced to defend this action in this state. [See Dkt. No. 100-1, Lederer Decl. ¶¶ 3-11.] Where, as here, the defendants have “done little to reach out to the forum state,” the burden of defending itself in a foreign state militates against exercising jurisdiction. Fed. Deposit Ins. Corp., supra, at 1444 (citing Ins. Co. of N. Am. v. Marina Salina Cruz, 649 F. 2d 1266, 1272 (9th Cir. 1981)). Indeed, “the law of personal jurisdiction is asymmetrical and is primarily concerned with the defendant’s burden.” Terracom v. Valley Nat’l Bank, 49 F.3d 555, 561 (9th Cir. 1995). The third factor also does not weigh in favor of the California forum given the possibility of conflict with the sovereignty of a very long list foreign jurisdictions. But see Gray & Co. v. Firstenburg Machinery Co., Inc., 913 F.2d 758, 761 (9th Cir. 1990)(citing Hirsch v. Blue Cross, Blue Shield, of Kansas City, 800 F. 2d 1474, 1482 (9th Cir. 1986)) (observing that “choice-of-law rules, rather than jurisdictional tests are designed to accommodate these concerns.). Fourth, California does not have a special interest in this run-of-the-mill case. Indeed it the alleged harms and the core of the allegations were already adjudicated by the U.S. District Court for the Southern District of New York. Fifth, Plaintiffs named a large number of foreign Defendants in this action, including a large number of Defendants from other countries such as Ireland. Given California’s limited connection to this action, any of those foreign jurisdictions, confer personal jurisdiction over him in California. See e.g. Sher v. Johnson, 911 F.2d 1357, 1366 (9th Cir. 1990). Case 2:11-cv-08591-GW-AGR Document 189 Filed 05/25/17 Page 22 of 23 Page ID #:3016 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 15 NOTICE OF MOTION AND MOTION TO DISMISS UNDER FRCP 12(b)(2), (5) LEGAL\30496329\1 including Alderney, Ireland, or Nevada would be far more convenient and efficient forums for resolving the purported dispute because the Courts of those jurisdictions are more familiar with gaming law. Finally, there are many alternative jurisdictions for this action to be brought and there is no special connection, if any connection at all, to California. The burden for Lederer of litigating in California, in the meantime, clearly outweighs any burden to Plaintiffs for bringing the case in an appropriate forum. Given these circumstances, it would be unreasonable to litigate this case in California against Mr. Lederer. Accordingly, the TAC must be dismissed as to him for lack of personal jurisdiction. V. JOINDER IN GROUNDS AND ARGUMENTS, MOTIONS, AND POINTS AUTHORITIES FILED BY DEFENDANTS TILTWARE AND FERGUSON Lederer also joins in and incorporates by reference the arguments and grounds for dismissal of Plaintiffs’ TAC set forth in the Motions to Dismiss the Third Amended Complaint filed by Tiltware and Chris Ferguson in this action on grounds, including, without limitation, the following: (1) abstention and forum shopping; (2) comity; (3) the barring of claims because of the statutes of limitations on the claims and res judicata; (4) failure to state facts sufficient to constitute claims for relief; and (5) mootness requiring that the TAC be dismissed. VI. CONCLUSION For the foregoing reasons, Mr. Lederer respectfully requests that the Court dismiss Plaintiffs’ claims against him. Dated: May 25, 2017 COZEN O’CONNOR By: /S/ Erik L. Jackson Nathan Dooley Alexander M. Kargher Attorneys for Defendants Tiltware LLC, Howard Lederer, Eric Seidel, Andy Bloch and Chris Ferguson Case 2:11-cv-08591-GW-AGR Document 189 Filed 05/25/17 Page 23 of 23 Page ID #:3017 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 1 [PROPOSED] ORDER RE LEDERER MOTION TO DISMISS UNDER FRCP 12(b)(2), (5) LEGAL\30717937\1 Erik L. Jackson (SBN 166010) ejackson@cozen.com Nathan Dooley (SBN 224331) ndooley@cozen.com COZEN O’CONNOR 601 S. Figueroa Street, Suite 3700 Los Angeles, CA 90017 Telephone: 213.892.7900 Facsimile: 213.892.7999 Attorneys for Defendants Tiltware LLC Howard Lederer, Andy Bloch, and Erik Seidel UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA LARY KENNEDY, an individual; and GREG OMOTOY, an individual Plaintiff, vs. CHRIS FERGUSON an individual; HOWARD LEDERER, an individual; RAYMOND BITAR, an individual; PHILLIP GORDON, an individual; ANDY BLOCH, an individual, PHIL IVEY, an individual; PERRY FRIEDMAN, an individual; JOHN JUANDA, an individual; ERIK LINDGREN, an individual; ERIK SEIDEL, an individual; MICHAEL MATUSOW, an individual, ALLEN CUNNINGHAM, an individual; GUS HANSEN, an individual; PATRIK ANTONIUS, an individual; RAFE FURST, an individual; TILTWARE LLC, a California limited liability company; POCKET KINGS LTD, an Irish limited company; KOLYMA CORPORATION A.V.V., a Curacao company; POCKET KINGS CONSULTING LTD., an Irish limited liability company; FILCO LTD., a limited company, VANTAGE LTD., a limited company; RANSTON LTD., a limited company; MAIL MEDIA LTD., a limited company; OXALIC LTD., a limited company; ORINIC LTD., a limited company; IAN IMRICH, an ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: CV-11-08591 GW (AGRx) [PROPOSED] ORDER RE NOTICE OF MOTION AND MOTION TO DISMISS THIRD AMENDED COMPLAINT FILED BY DEFENDANT HOWARD LEDERER Date: July 6, 2017 Time: 8:30 a.m. Courtroom: 9D Case 2:11-cv-08591-GW-AGR Document 189-1 Filed 05/25/17 Page 1 of 2 Page ID #:3018 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 2 [PROPOSED] ORDER RE LEDERER MOTION TO DISMISS UNDER FRCP 12(b)(2), (5) LEGAL\30717937\1 individual; LAW OFFICES OF IAN IMRICH, APC, a California Corporation; COZEN O’CONNOR, a limited liability partnership; GROUP BERNARD TAPIE, a French general partnership; BERNARD TAPIE, an individual and DOES 1 through 10, inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) [PROPOSED] ORDER The Motion by Defendant Howard Lederer to Dismiss the Third Amended Complaint of Plaintiffs Lary Kennedy and Greg Omotoy pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(5) was considered by the Court, the Honorable George H. Wu, United States District Judge, presiding. Having considered the parties’ papers, Defendant’s motion is GRANTED and the Third Amended Complaint is DISMISSED WITH PREJUDICE. DATED:__________________ By:_____________________________ The Honorable George H. Wu United States District Court Judge Case 2:11-cv-08591-GW-AGR Document 189-1 Filed 05/25/17 Page 2 of 2 Page ID #:3019