Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Perez v. Vezer Industrial Professionals

July 23, 2010

RUBEN PEREZ, MICHAEL MOORE, AND BRIGETTE MOORE PLAINTIFFS,
v.
VEZER INDUSTRIAL PROFESSIONALS, INS., A CALIFORNIA CORPORATION, DEFENDANTS.
VEZER INDUSTRIAL PROFESSIONALS, INC., THIRD-PARTY PLAINTIFF,
v.
PINPOINT HOLDINGS, INC., A CORPORATION; B2 GOLD, A CANADIAN CORPORATION, THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

ORDER

Plaintiffs seek damages for personal injuries they sustained due to the alleged negligence of a California corporation, Vezer Industrial Professionals, Inc. ("Vezer") while working at a Nicaragua mining site whose construction was being managed by Vezer. Vezer subsequently brought the owner of the mine, B2 Gold Corporation ("B2 Gold"), into this litigation as a third-party defendant. B2 Gold, a Canadian company, has now filed the motion presently before the Court (Docket No. 24). The first portion of that motion seeks dismissal for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2).*fn1 B2 Gold alternatively seeks dismissal under the common law doctrine of forum non conveniens, contending that an adequate forum for redress exists in either Canada or Nicaragua. For the reasons set forth below, both of B2 Gold's requests will be denied.*fn2

BACKGROUND

Defendant Vezer is a California corporation with its permanent place of business located in Suisun, California. Beginning in June or July of 2007, Vezer was approached by Central Sun Mining ("Central Sun") for the purchase of $1 million worth of equipment owned by Vezer and then located in the State of Nevada.

A contract for the purchase of that equipment was subsequently negotiated over a series of email and telephone communiques between Central Sun representatives and Vezer's Suisun offices.

Thereafter, in November of 2007, Vezer entered into additional negotiations with Central Sun for the construction of a gold mine located in La Libertad, Nicaragua. Representatives of Central Sun, Peter Tagliamonte and Graham Spiers, met with Frank Vezer, President of Vezer, on two occasions at Vezer's offices in Suisun to negotiate the terms of an agreement. Each of those meetings lasted approximately four hours. A third meeting then took place, also at Vezer's California offices, to finalize the necessary arrangements. This final meeting spanned approximately sixteen hours during the last two weeks of November 2007 and resulted in an "interim" agreement. After Graham Spiers sent a clarifying email on November 28, 2007, a final agreement was signed by the parties on December 12, 2007. In accordance with the agreement, Central Sun purchased tools and equipment from Vezer in California through individual transactions negotiated between the Defendant's offices in California and Central Sun's office's in Nicaragua. Vezer also agreed to provide construction support and personnel pursuant to the agreement.

B2 Gold is the successor-in-interest to Central Sun, having acquired the company in March 2009. B2 Gold is a Canadian company with a principal place of business in Vancouver, Canada. It does not advertise or own property in California, and it is not registered with the California Secretary of State.

Once the aforementioned construction agreement was in place, Plaintiffs Ruben Perez and Michael Moore ("Plaintiffs") were approached by Vezer through another company, Pinpoint Holdings, about working at the mine in Nicaragua. Perez and Moore, during all times relevant, were residents of Texas and Pennsylvania, respectively. Plaintiffs were required to reside at the mine for the duration of their work, but were provided transportation services by Vezer.

The provision of transportation services ultimately spawned the current litigation. On October 4, 2008, while being chauffeured in Nicaragua by J.J. Ocon, a driver allegedly employed by a private transportation company selected by Central Sun,*fn3 the pick-up truck driven by Ocon and occupied by Plaintiffs rolled off a mountain road. Plaintiffs allege they were injured due to Ocon's negligence and reckless driving.

Following commencement of this litigation, Vezer impled B2 Gold under Rule 14(a)(1) contending that, under the terms of its agreement with Central Sun, B2 Gold, as Central Sun's successor-in-interest, was obligated to indemnify Vezer for Plaintiffs' personal injury lawsuit.

B2 Gold then filed the present motion to dismiss for lack of personal jurisdiction or, alternatively, on forum non conveniens grounds.

STANDARD

A. Motion to Dismiss for Lack of Personal Jurisdiction

It is the plaintiff's burden to establish the court's personal jurisdiction over the defendant. Doe v. Unocal Corp., 248 F.3d 915, 922 (9th Cir. 2001). The court may consider evidence provided in affidavits in assessing the plaintiff's showing. Id. When a district court rules on a motion to dismiss for want of personal jurisdiction without holding an evidentiary hearing, "the plaintiff need make only a prima facie showing of jurisdictional facts to withstand the motion to dismiss." Id. (citing Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995)). Additionally, in circumstances where the facts are not directly controverted, the plaintiff's account is taken as true for the purposes of a 12(b)(2) motion to dismiss and when conflicts do arise, they must be resolved in the plaintiff's favor. Id.

A federal court may only exercise jurisdiction over a defendant if it "comport[s] with the state['s] long arm statute." Omeluk v. Langsten Slip & Batbyggerie A/S, 52 F.3d 267, 269 (9th Cir. 1995). California statute permits courts to hear any dispute that is not inconsistent with Constitutional due process requirements. See, e.g., Bancroft & Masters, Inc. v. August Nat'l Inc., 233 F.3d 1082, 1086 (9th Cir. 2000); Cal Code Civ. Proc. § 410.10. Therefore, federal courts within California "may exercise jurisdiction to the fullest extent permitted by due process." Scott v. Breeland, 92 F.2d 925, 927 (9th Cir. 1986).

In order to subject a defendant to in personam jurisdiction, he must be placed on notice that he may be haled before a court in the forum. See, e.g., World-Wide Volkswagen v. Woodson, 444 U.S. 286 (1980). This requires that the defendant maintain such "minimum contacts" with the forum that maintenance of the suit against the defendant does not offend "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).

The Ninth Circuit Court of Appeals applies a three-part test to ascertain whether exercise of specific jurisdiction over a defendant comports with Constitutional requirements:

"(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 benefit and protection of its laws;

(2) [T]he claim must be one which rises out of or relates to the defendant's forum related activities;

(3) [T]he exercise of jurisdiction must comport with fair play and substantial justice, i.e., it must be reasonable."

Boschetto v. Hansing, 539 F.3d 1011, 1016 (9th Cir. 2008) (citing Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987). The plaintiff bears the burden of establishing the first two prongs. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). If the plaintiff meets this requirement, the burden "then shifts to the defendant to 'present a compelling case' that the exercise of jurisdiction would not be reasonable." Id. at 802 (citing Burger King v. Rudzewicz, 471 U.S. 462 (1985)).

A presumption of reasonableness exists when there has been a showing that the defendant "purposefully directed [its] activities at forum residents." Haisten v. Grass Valley Medical Reimbursement Fund, Ltd., 784 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.