The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER GRANTING MOTION TO DISMISS [doc. #3] and GRANTING PLAINTIFF LEAVE TO AMEND
Defendant HCAL, LLC and specially appearing defendant Harrah's Operating Company, Inc. ("HOC") move to dismiss the complaint. The motion has been fully briefed and is submitted without oral argument pursuant to Civil Local Rule 7.1(d)(1).
Plaintiff Jack Hayek was employed by HCAL, LLC to work at Harrah's Rincon Casino & Resort in Valley Center, California. The Rincon Casino is located on the Rincon San Luiseno Band of Mission Indians Reservation. Hayek contends that his employment was constructively terminated because of his age and medical disability when HCAL refused to make reasonable accommodations for him.
On September 27, 2010, plaintiff filed a complaint with the California Department of Fair Employment and Housing alleging age and disability discrimination and wrongful discharge. He received a Right to Sue Letter. In addition, plaintiff filed a Request for Tribal Council Action; however, no action was taken. Although Hayek asserts that his administrative remedies have been exhausted, he does not allege that he has exhausted his federal Americans with Disabilities
Hayek originally filed this action in Superior Court for the State of California, County of San Diego. Defendants removed the action based on the Court's diversity jurisdiction. 28 U.S.C. § 1332(a).
Defendant HOC moves to dismiss the complaint contending that the Court lacks personal jurisdiction over it under Federal Rule of Civil Procedure 12(b)(2), and defendants also seek dismissal of the entire complaint under Federal Rule of Civil Procedure 12(b)(6).
Defendant HOC, a Delaware corporation with its principal place of business in Las Vegas, Nevada., moves to dismiss the complaint for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). Plaintiff bears the burden of establishing that jurisdiction is proper. Mavrix Photo, Inc. v. Brand Technologies, Inc., 2011 WL 3437047, *2 (9th Cir., Aug. 8, 2011.) If the defendant's motion is based on written materials rather than an evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdictional facts to withstand the motion to dismiss. Id. (citing Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1127 (9th Cir. 2010). "The plaintiff cannot 'simply rest on the bare allegations of its complaint,' but uncontroverted allegations in the complaint must be taken as true." Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004) (quoting Amba Mktg. Sys., Inc. v. Jobar Int'l, Inc., 551 F.2d 784, 787 (9th Cir. 1977)). The court "may not assume the truth of allegations in a pleading which are contradicted by affidavit," Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1284 (9th Cir. 1977), but must resolve "factual disputes in the plaintiff's favor." Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir.2006).
The district court applies the law of the state in which the court sits when no federal statute authorizes personal jurisdiction. FED. R. CIV. P. 4(k)(1)(A); Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998). California's long-arm statute, Civil Procedure Code § 410.10, is coextensive with federal due process requirements; therefore, the jurisdictional analyses under state law and federal due process are the same. Schwarzenegger, 374 F.3d at 800--01.
For a court to exercise personal jurisdiction over a nonresident defendant consistent with due process, that defendant must have "certain minimum contacts" with the relevant forum "such that the maintenance of the suit 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)). Under a due process analysis, a defendant may be subject to either general or specific personal jurisdiction. Helicopteros Nacionales de Columbia, S.A. v. , 466 U.S. 408, 414 (1984).
"For general jurisdiction to exist over a nonresident defendant . . . the defendant must engage in continuous and systematic general business contacts, that approximate physical presence in the forum state." Schwartzenegger, 374 F.3d at 801 (internal quotations omitted). "This is an exacting standard, as it should be, because a finding of general jurisdiction permits a defendant to be ...