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.

Forty Niner Truck Plaza, Inc v. Roger Shank

July 8, 2011

FORTY NINER TRUCK PLAZA, INC.,
PLAINTIFF,
v.
ROGER SHANK, CPA. DEFENDANT.



MEMORANDUM AND ORDER

This matter comes before the court on defendant Roger Shank's ("Shank") motion to dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). Plaintiff Forty Niner Truck Plaza, Inc. ("Forty Niner") opposes the motion, asserting that this court has specific personal jurisdiction over Shank. For the reasons set forth below,*fn1 Shank's motion to dismiss for lack of personal jurisdiction is DENIED.

BACKGROUND

Plaintiff Forty Niner is a Nevada corporation with its principal place of business in California. (Ex. 1, State Ct. Compl. ("Compl."), [Docket #1-1], filed Mar. 30, 2011, ¶ 1; Def's Reply in Supp. of Mot. to Dismiss ("Reply"), [Docket #22], filed Jun. 17, 2011, at 4). Forty Niner does business exclusively in California, and its primary business is operating a commercial truck stop plaza in Natomas, Sacramento County, California. (Compl. ¶ 1). Defendant Shank is a resident of Ohio and a licensed certified public accountant whose principal place of business is in Mansfield, Ohio. (Ex. 1, Aff. of Roger Shank ("Shank Aff."), [Docket #6-1], filed Apr. 5, 2011, ¶¶ 3, 9). Shank does not maintain offices in California, employ individuals or agents in California, or direct advertising towards California. (Id. ¶¶ 13--14, 16).

In the early 1990s, Forty Niner sought out Shank in order to retain an accountant for its truck stop plaza in California. (Id. ¶ 10). Shank then traveled to California to meet with Forty Niner's owner to discuss the accounting services he could provide and the terms of his employment. (Decl. of Terry Rust ("Rust Decl."), [Docket #19], filed Jun. 10, 2011, ¶ 6). Forty Niner hired Shank, and their agreement was controlled by an oral contract where Forty Niner compensated Shank based on an hourly rate. (Compl. ¶¶ 6--7). Shank also traveled to California in 2009 to act as an intermediary for a business transaction Forty Niner was conducting as well as to handle the accounting for said transaction. (Rust Decl. ¶ 6).

Shank performed services for Forty Niner that included providing: all tax preparation services, payroll services, inventory control and coding, business advice, maintenance of Forty Niner's general ledger, and monthly financial reports. (Id. ¶¶ 7, 9). Shank received all accounting information from Forty Niner via e-mail, facsimile, or internet based web portal. (Shank Aff. ¶ 21).

Shank rendered all accounting services for Forty Niner at his Ohio office, and Forty Niner was Shank's only client in California. (Id. ¶¶ 11, 22). While employed by Forty Niner, Shank did not conduct public accounting activity within California or seek a license or permit to conduct public accounting activity in California. (Id. ¶¶ 18--20).

In the spring of 2010, Forty Niner concluded its business relationship with Shank due to alleged professional negligence committed by Shank. (Compl. ¶ 8).

On January 27, 2011, Forty Niner filed a complaint against Shank in the Superior Court of the State of California, County of Sacramento, asserting claims for professional negligence, breach of fiduciary duty, and breach of oral contract. (Compl. ¶¶ 11--19). On March 30, 2011, Shank removed the case to this court on the basis of diversity jurisdiction.

ANALYSIS

Defendant Shank moves to dismiss plaintiff's complaint on the basis that this court lacks personal jurisdiction over him. Forty Niner argues that this court has specific jurisdiction over Shank. Specifically, plaintiff asserts that defendant's performance of accounting services for a California business satisfy the minimum contacts necessary for specific personal jurisdiction.*fn2

Under Rule 12(b)(2) of the Federal Rules of Civil Procedure, a defendant may seek dismissal of an action for lack of personal jurisdiction. "Where, as here, there is no applicable federal statute governing personal jurisdiction, the law of the state in which the district court sits applies." Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1484 (9th Cir. 1993) (citation omitted). "California's long-arm statute allows courts to exercise personal jurisdiction over defendants to the extent permitted by the Due Process Clause of the United States Constitution." Id. at 1484 (citation omitted). Thus, only constitutional principles constrain the jurisdiction of a federal court in California.

Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990). "Due process requires that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of suit does not offend traditional notions of fair play and substantial justice." Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1129 (9th Cir. 2003) (internal quotations omitted); see Burger King v. Rudzewciz, 471 U.S. 462, 476 (1985).

Once a defendant challenges jurisdiction, the burden of proof to show that jurisdiction is appropriate lies with the plaintiff. Sher, 911 F.2d at 1361. When a defendant's motion to dismiss is to be decided on the pleadings, affidavits, and discovery materials, the plaintiff need only make a prima facie showing that personal jurisdiction exists in order for the action to proceed. Id.

A court may exercise either general or specific jurisdiction over a non-resident defendant.*fn3 Where general jurisdiction does not exist, the court may still determine whether the defendant has had sufficient minimum contacts with the state, as it relates to the pending litigation against it, in order to justify the exercise of specific jurisdiction. See Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 270 (9th Cir. 1995). In determining whether a district ...


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.