The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS (Doc. No. 5)
On May 18, 2010, Plaintiff Del Mar Land Partners LLC, ("Plaintiff") filed this lawsuit against Defendant Stanley Consultants Inc. ("Defendant"). On June 17, 2010, Defendant moved to dismiss all of Plaintiff's claims pursuant to Federal Rules of Civil Procedure 12(b)(2), 12(b)(3) and 12(b)(6). Plaintiff has opposed the requested dismissal.
The Court decides the matter on the papers submitted and without oral argument pursuant to Civil Local Rule 7.1(d)(1). For the following reasons, the Court GRANTS Defendant's motion to dismiss.
Plaintiff is a Nevada Limited Liability Company. Its principal place of business is in Henderson, Nevada. (Doc. No. 1 ¶ 3.) Defendant is a an Iowa corporation. Its principal place of business is in Muscatine, Iowa. (Id. at ¶ 4.)
On October 17, 2006, Plaintiff and Defendant entered into a written contract at Defendant's office in Kingsman, Arizona. (Id. at ¶ 6.) Defendant contracted to provide civil engineering consulting services related to Plaintiff's property in Mohave County, Arizona ("the Property"). (Id. at ¶ 6.)
On January 4, 2007, Plaintiff and Defendant entered into a second contract under which Defendant was to perform additional civil engineering services related to the Property. (Id. at ¶ 7.)
On May 18, 2010, Plaintiff filed this lawsuit in the Southern District of California alleging the following: (1) Breach of Contract; (2) Fraud; (3) Unjust Enrichment; (4)Negligence; and (5) Negligent Misrepresentation. (Id.) On June 17, 2010, Defendant moved to dismiss Plaintiff's claims for lack of personal jurisdiction, improper venue, and failure to state a claim.
A. Lack of Personal Jurisdiction - Rule 12(b)(2)
Rule 12(b)(2) provides that a court may dismiss a claim for "lack of jurisdiction over the person." Fed. R. Civ. P. 12(b)(2). Although the defendant is the moving party in a motion to dismiss, the plaintiff is the party that invoked the court's jurisdiction. Therefore, the plaintiff bears the burden of proof on the necessary jurisdictional facts. Spacey v. Burgar, 207 F.Supp.2d 1037, 1042 (C.D. Cal. 2001); Ballard v Savage, 65 F.3d 1495, 1497 (9th Cir. 1995); Fields v. Sedgwick Associated Risks, Ltd., 796 F.2d 299, 301 (9th Cir. 1986); Flynth Distrib. Co., Inc. v. Harvey, 734 F.2d 1389, 1392 (9th Cir. 1984).
When a defendant's motion to dismiss is made as its initial response to a complaint, the plaintiff need only make a prima facie showing that personal jurisdiction exists. Motion, Inc. v. Environmental Tectonics Corporation, 196 F.Supp.2d 1051, 1055 (D. Or. 2001); Myers v. Bennett Law Offices, 238 F.3d 1068, 1071 (9th Cir. 2001); Data Disc., Inc. v. Sys. Technology Assoc., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977). In this context, a "prima facie" showing means that plaintiff has produced admissible evidence which, if believed, would be sufficient to establish the existence of personal jurisdiction. See American Tel. & Tel. Co. v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996) (citing WNS, Inc. v. Farrow, 884 F.2d 200, 203-04 (5th Cir. 1989)). The allegations contained in the affidavits and pleadings may not be merely conclusory, but rather, must assert particular facts which establish the necessary ties between the defendant and the forum state. H.M. Greenspun v. Del E. Webb Corp., 634 F.2d 1204, 1208 n.5 (9th Cir. 1980); Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 185 (2d Cir. 1998).
B. Improper Venue - Rule 12(b)(3)
Rule 12(b)(3) provides that a court may dismiss a claim for improper venue. See FED. R. CIV. P. 12(b)(3). Once venue is challenged, the burden is on the plaintiff to show that venue is properly laid. Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979); Bohara v. Backus Hosp. Medical Benefit Plan, 390 F. Supp. 2d 957, 960 (C.D. Cal. 2005); King v. Vesco, 342 F. Supp. 120, 125 (N.D. Cal. 1972). Facts supporting venue may be established through evidence ...