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KIRSCH v. CUADRA

October 20, 2005.

STEVEN T. KIRSCH, Plaintiff,
v.
JAVIER A. CUADRA, et al., Defendants.



The opinion of the court was delivered by: MARTIN JENKINS, District Judge

Pending before the Court is Defendant Jere Ross's (aka Jerry Ross) Motion to Dismiss for Lack of Personal Jurisdiction (Doc. #5). Plaintiff Steven Kirsch has filed an Opposition (Doc. #22), and Defendant Ross has filed a Reply (Doc. #32). For the following reasons, the Court grants Defendant Ross's Motion.

I. Background

On January 25, 2005, Plaintiff filed a Complaint in California Superior Court against Javier A. Caudra, Camelot Promotions, LLC, and various Doe defendants, alleging that the defendants violated the federal Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227.*fn1 (Doc. #1, ex. 1 "Complaint.") Specifically, Plaintiff alleges that, beginning on April 4, 2004, the defendants sent 18 unsolicited advertisements to his facsimile line. (Compl. at ¶¶ 9, 11.) Based on this conduct, Plaintiff seeks $41,000 in damages, $82,000 in trebled statutory damages,*fn2 an injunction prohibiting the defendants from engaging in the alleged conduct, and an award of attorneys' fees and costs. (Id. at 6.) At some point after Plaintiff filed his Complaint, the Superior Court entered default against Defendants Javier Caudra and Camelot Promotions, LLC. Subsequently, on June 23, 2005, Plaintiff amended his Complaint to substitute Defendant Ross for Defendant Doe 1. On July 25, 2005, Defendant Ross removed the case to this Court on the basis of federal question and diversity jurisdiction.*fn3 (Doc. #1.) He now moves to dismiss the Complaint on the ground that this Court lacks jurisdiction over him.

  II. Legal Standard

  Pursuant to Federal Rule of Civil Procedure 12(b)(2), a defendant may move to dismiss a complaint for lack of personal jurisdiction. As the party seeking to invoke the federal court's jurisdiction, the plaintiff bears the burden of establishing that jurisdiction exists. Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977); Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). If the Court rules on the motion based on written materials without an evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdictional facts. Id. In such cases, the Court examines whether the plaintiff's pleadings and affidavits contain sufficient factual allegations to make a prima facie showing of personal jurisdiction. Caruth v. Int'l Psychoanalytical Ass'n, 59 F.3d 126, 128 (9th Cir. 1995). "Although the plaintiff cannot `simply rest on the bare allegations of its complaint,' uncontroverted allegations in the complaint must be taken as true." Schwarzenegger, 374 F.3d at 800 (internal citations omitted). In reviewing the written materials, the Court resolves factual conflicts in the parties' affidavits in the plaintiff's favor. AT&T, 94 F.3d at 588. Generally, A district court sitting in diversity has personal jurisdiction to the extent provided by the law of the forum state. Data Disc., Inc., 557 F.2d at 1286. California's jurisdictional statute*fn4 is co-extensive with federal due process requirements; therefore, jurisdictional inquiries under state law and federal due process standards collapse into one, and the Court considers only whether the exercise of jurisdiction over the defendant comports with due process. Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 F.3d 1114, 1123 (9th Cir. 2002). Specifically, to satisfy constitutional due process, the non-resident defendant "must have at least `minimum contacts' with the relevant forum such that the exercise of jurisdiction `does not offend traditional notions of fair play and substantial justice.'" Schwarzenegger, 374 F.3d at 801 (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). Depending on the defendant's contacts with California, the Court may exercise either general or specific jurisdiction. Because Plaintiff has not presented any argument in support of general jurisdiction over Defendant Ross in this action, the Court limits its analysis to determining whether specific jurisdiction exists.

  "A court exercises specific jurisdiction where the cause of action arises out of or has a substantial connection to the defendant's contacts with the forum." Glencore Grain Rotterdam B.V., 284 F.3d at 1123. The Court applies a three-part test when assessing specific jurisdiction:
(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.
Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987); Bancroft & Masters, Inc., 223 F.3d at 1086 (9th Cir. 2000). The plaintiff bears the burden of satisfying the first two prongs of the test. Schwarzenegger, 374 F.3d at 802. If the plaintiff fails under either prong, the Court must find that personal jurisdiction does not exist in the forum state. Id. If the plaintiff satisfies both prongs, the burden shifts to the defendant to "present a compelling case" demonstrating that the exercise of jurisdiction would be unreasonable. Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 276-78 (1985)).

  III. Discussion

  A. Defendant Ross's Motion

  Defendant Ross contends that the Court must dismiss Plaintiff's Complaint because the Court lacks personal jurisdiction over him. Specifically, he argues that Plaintiff has not and cannot make a prima facie showing of jurisdiction. In support of his Motion, Defendant Ross has filed a Declaration. (Doc. #7.) The following statements are taken from his Declaration.

  Defendant Ross is a United States citizen and a resident of Florida. He is an attorney licensed to practice law in Florida, and is a name shareholder in the Tampa law firm of Bush Ross, P.A. The law firm's only office is in Tampa; it has never maintained an office in California. Neither Defendant Ross, nor any member of his law firm, is licensed to practice in California. Defendant Ross has never represented a client with primary business interests in California and has not had any personal business interests in California. Defendant Ross does not own any real property in California.

  The last time Defendant Ross visited California was in 1998, for recreational purposes. Before that trip, Defendant Ross had visited California several times for depositions in a federal securities case in the 1980's, a vacation in the 1970's, several recreational trips in the 1960's, and a three-month stay at Camp Pendleton in 1962, during which time he was a lieutenant in the United States Marine Corps.

  Defendant Ross avers that he has "no acquaintance or affiliation with either [Defendant Cuadra or Defendant Camelot Promotions, LLC] nor any knowledge of their existence other than in connection with this legal action by plaintiff." He states that they are not clients of Bush Ross, and that neither Bush Ross nor any of its employees has ever served as an agent or employee for either of the named defendants.

  Defendant Ross further avers that neither he, nor any member or employee of his law firm sent any of the alleged facsimiles to Plaintiff; participated in or discussed with anyone else the sending of such facsimiles; or was aware that any of the alleged facsimiles were sent to Plaintiff.

  Finally, Defendant Ross states that he has never met Plaintiff, whether in California or elsewhere. He states that his only communications with Plaintiff has been by phone and email, and that Plaintiff initiated these contacts while Defendant Ross was at his Tampa office. He indicates that these contacts involved Plaintiff's inquiries about Defendant Ross's knowledge of Concorde America, Inc., certain persons appearing to have a relationship to that entity, and its responses to unusual volume in the public trading of shares of its capital stock in August 2004. Defendant Ross avers that neither he, nor his law firm, ever marketed, offered for sale, or sold any product or service in California via facsimile transmission. He also states that, because he ...


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