The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER RE MOTION TO DISMISS OR TRANSFER VENUE
Defendants move to dismiss for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2); to dismiss for lack of venue pursuant to Fed. R. Civ. P. 12(b)(3); and to dismiss under the doctrine of forum non conveniens; or in the alternative, to transfer for convenience pursuant to 28 U.S.C. § 1404(a). For the reasons that follow, this motion is DENIED.
Plaintiff is a citizen of California. Defendant Ledwin Oviedo is a citizen of New Jersey and Defendant LOIG is a Delaware limited liability company with its principal place of business in New York.
Plaintiff brings claims for RICO violations, common law fraud, and common law conspiracy. Plaintiff alleges that Defendants engaged in a series of fraudulent acts involving the use of a counterfeit standby letter of credit to fund various investment projects.
Plaintiff's primary allegation relates to a sale of emeralds valued at $500,000,000 ("emerald transaction"). (Compl. ¶ 12) On or about September 26, 2010, Plaintiff offered to sell Defendants these emeralds. Id. In a September 30, 2008 email, Plaintiff confirmed this offer and provided banking coordinates for payments to Plaintiff's bank located in San Diego, California. (Campbell Decl. ¶ 3, Ex. A) Defendants were to pay $50,000,000 for the emeralds in cash backed by an irrevocable stand-by letter of credit to be payable in sixty days. Id. On October 3, Defendants accepted this offer. (Compl. ¶ 5) Plaintiff alleges that Defendants failed to pay for the purchase of the emeralds and that documents involved in the purchase, including the stand-by letter of credit, were fraudulent. (Compl. ¶ 28-29)
In connection with Plaintiff's RICO claim, Plaintiff alleges that Defendants engaged in a pattern of racketeering activity by using similar counterfeit standby letters of credit in at least three other transactions. (Compl. ¶ 45) Two of these transactions involved contacts with California. First, Plaintiff alleges that Mr. Oviedo emailed a sample letter of credit in connection with a purchase of a masterpiece painting while he was in San Diego, California ("masterpiece transaction"). (Compl. ¶ 45(b)) Second, Plaintiff alleges that Mr. Oviedo directly contacted Plaintiff's client, Sam Nett, the President of AGO holdings, with respect to several investment projects and sent him a counterfeit standby letter of credit ("AGO transaction"). (Compl. ¶ 45(c)) Mr. Nett is a resident of Los Angeles, California and has a Los Angeles phone number. (Campbell Decl. ¶ 15, 18) Mr. Oviedo acknowledges that he exchanged emails and telephone calls with Mr. Nett regarding a potential business deal. (Oviedo Reply Decl. ¶ 19)
Fed. R. Civ. P. Rule 12(b)(2) permits a court to dismiss a suit for lack of personal jurisdiction over a defendant. "The burden of proof is on the plaintiff to show that jurisdiction is appropriate, but in the absence of an evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdictional facts." Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990). The "court may consider evidence presented in affidavits to assist in its determination and may order discovery on the jurisdictional issues." Doe v. Unocal Corp., 248 F.3d 915, 922 (9th Cir. 2001).
Generally, jurisdiction must comport with both the long-arm statute of the state in which the district court sits, as well as the constitutional requirements of due process. Mattel, Inc., v. Greiner & Hausser GmbH, 354 F.3d 857, 863 (9th Cir. 2003). The Ninth Circuit has recognized that the California long-arm statute, Cal. Code Civ. Proc. § 410.10, allows Courts to exercise jurisdiction consistent with the limits of the Due Process Clause of the Constitution, "so a federal court may exercise personal jurisdiction if doing so comports with federal constitutional due process." Boschetto v. Hansing, 539 F.3d 1011, 1015-16 (9th Cir. 2009).
1. Personal Jurisdiction Based On RICO's Nationwide Service Of Process Provision
Plaintiff argues that because RICO has provisions authorizing nationwide service of process, a defendant need only maintain minimum contacts with the United States as a whole, rather than any particular state, for a federal court to exercise personal jurisdiction. While the circuits are split, this is not the rule in the Ninth Circuit. See Butcher's Union Local No. 498 v. SDC Invest., Inc., 788 F.2d 535, 539 (9th ...