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Lillian Bunting, An Individual v. June Carter-Bunting

February 13, 2012

LILLIAN BUNTING, AN INDIVIDUAL,
PLAINTIFF,
v.
JUNE CARTER-BUNTING, AN INDIVIDUAL;
RANDALL BUNTING, AN INDIVIDUAL;
AND DOES 1 THROUGH 10, INCLUSIVE,
DEFENDANTS.



The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER DENYING MOTION TO DISMISS OR TO TRANSFER TO THE DISTRICT OF NEVADA [doc. #3]

On February 28, 2011, Defendants June Carter-Bunting and Randall Bunting ("Defendants") removed this action for fraud to this Court. On March 7, 2011, Defendants filed a motion to dismiss based on lack of personal jurisdiction and improper venue, or alternatively, to transfer the action to the District of Nevada. [doc. #3]. Plaintiff opposes.

For the following reasons, the Court DENIES Defendants' motion to dismiss or to transfer the action to the District of Nevada.

BACKGROUND

Plaintiff is a resident of California. (Compl. at 1). Defendants, Plaintiff's son and daughter-in-law, are residents of Nevada. Id. at 2. In April 2007, Defendants visited Plaintiff in her home in Vista, California ("San Diego Real Property"). Plaintiff alleges that the purpose of the Defendants' visit was to convince her to move in with them in their Nevada home. Id. After Plaintiff agreed to move to Nevada, Defendants arranged for Plaintiff to stay with a friend while Defendants hired a realtor to pack up her personal property. Id. at 3. Plaintiff alleges this was done in order to prepare the property for sale. Id. Thereafter, Plaintiff moved to Nevada and lived with the Defendants for a period of two weeks. Id. During this time, Plaintiff, at the direction of the Defendants, purchased a house in Nevada ("Nevada Real Property"). Plaintiff also alleges that Defendant June took her to a notary public to sign a quitclaim deed to transfer the title of the Nevada Real Property to Defendants. Id. at 4. Approximately ten days after Plaintiff moved in with the Defendants, Plaintiff expressed a desire to move back to San Diego. at 3. At the end of the two weeks, Plaintiff returned to her home in San Diego. Id. at 4.

In June 2007, Defendants arrived at Plaintiff's home with a mortgage loan officer. Id. Under the direction of the Defendants, Plaintiff executed a reverse mortgage on her home and took out $262,000.00 from the property. Id. The parties dispute whether Plaintiff knowingly executed the reverse mortgage on her home. There is no dispute, however, that the $262,000.00 was paid to Defendants to pay off money owed on the Nevada Real Property. (Compl. at 4; Motion Memo. of Ps & As at 3).

On January 25, 2011, Plaintiff initiated this action in the Superior Court for the State of California, County of San Diego. [doc. #1]. In her Complaint, Plaintiff alleges six causes of action: (1) Fraud -- Intentional Misrepresentation; (2) Undue Influence -- Constructive Fraud; (3) Breach of Fiduciary Duty; (4) Financial Elder Abuse; (5) Constructive Trust -- Equitable Lien; and (6) Conversion. (Compl. at 1). On February 28, 2011, Defendants removed the action to this Court. [doc. #1].

Defendants move to dismiss for lack of personal jurisdiction under Rule (b)(2) of the Federal Rules of Civil Procedure, or to alternatively transfer the case to the District of Nevada under Section 1404(a) of Title 28 of the United States Code. Plaintiff opposes the motion.

DISCUSSION

A. Motion to Dismiss for Lack of Personal Jurisdiction

The plaintiff has the burden of establishing personal jurisdiction. See Farmers Ins. Exchange v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990). In ruling on the motion, 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). Where a motion is based on written materials rather than an evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdictional facts. In such cases, we only inquire into whether [the plaintiff]'s pleadings and affidavits make a prima facie showing of personal jurisdiction. Although the plaintiff cannot simply rest on the bare allegations of its complaint, uncontroverted allegations in the complaint must be taken as true. Conflicts between parties over statements contained in affidavits must be resolved in the plaintiff's favor.

Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1108 (9th Cir. 2002)(citations and quotation marks omitted).*fn1 A prima facie showing means that "the plaintiff need only demonstrate facts that if true would support jurisdiction over the defendant." Unocal, 248 F.3d at 922.

"The general rule is that personal jurisdiction over a defendant is proper if it is permitted a long-arm statute and if the exercise of that jurisdiction does not violate federal due process." Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006). Both the California and the federal long-arm statute, FED. R. CIV. P. 4(k)(2), see Holland Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 461 (9th Cir. 2007), require compliance with due process requirements. Pebble Beach, 453 F.3d at 1155.

There are two types of personal jurisdiction: general and specific. General jurisdiction "enables a court to hear cases unrelated to the defendant's forum activities . . . ." Fields v. Sedgewick Assoc. Risks, Ltd., 796 F.2d 299, 301 (9th Cir. 1986). Specific jurisdiction allows the court to exercise jurisdiction over a defendant whose forum-related activities gave rise to the action before the court. See Bancroft & Masters, Inc. v. Augusta Nat. Inc., 223 F.3d 1082, 1086 (9th Cir. 2000). Plaintiff claims that the Court has specific jurisdiction over Defendants.

Specific jurisdiction is established by showing three elements: (1) the out-of-state defendant purposefully directed its activities toward a resident of the forum state; (2) the cause action arose out of or resulted from the defendant's forum-related action; and (3) the forum's exercise of personal jurisdiction is reasonable. Myers v. The Bennett Law Offices, 238 F.3d 1068, 1072 (9th Cir. 2001). "If any of the three requirements is not satisfied, jurisdiction in the forum would deprive the defendant of due process of law." Pebble Beach, 453 F.3d at 1155.

1. Purposeful Direction

Under the first prong of the specific jurisdiction test, the plaintiff must establish that the defendants either purposefully availed themselves of the privilege of conducting activities in California, or purposefully directed their activities toward California. See Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). The Court of Appeals for the Ninth Circuit has noted that purposeful availment and purposeful direction are two distinct concepts. A purposeful availment analysis is most often used in suits sounding in contract. A purposeful direction analysis, on the other hand, is most often used in suits sounding in tort. Id. (internal citations omitted). In this case, Plaintiff's claims--fraud, undue influence, breach of fiduciary duty, financial elder abuse, constructive trust, and equitable lien--sound primarily in tort.

In analyzing purposeful direction, the Court applies the "effects" test first established by the Supreme Court in Calder v. Jones, 465 U.S. 783 (1984). See Schwarzenegger, 374 F.3d at 803. Under this test, "the defendant must have (1) committed an intentional act, which was (2) expressly aimed at the forum state, and (3) caused harm, the brunt of which is suffered and which the defendant knows is likely to be suffered in the forum state." Bancroft & Masters, Inc. v. Augusta Nat'l, Inc., 223 F.3d 1082, 1087 (9th Cir. 2000).

Defendants argue that the case centers around Plaintiff's acts while she lived with the Defendants in Nevada. Specifically, they argue that Plaintiff's purchase of the Nevada Real Property and the related events that took place in Nevada are the crux of this case. However, Plaintiff's lawsuit arises out of Defendants' visit to her home in June 2007, where they allegedly "unduly influenced, pressured and fraudulently coerced her into signing" the reverse mortgage agreement, (Opp. at 6), not the transactions that took place in Nevada. Based on the facts set forth in Plaintiff's Complaint, the Court concludes that the case arises out of ...


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