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Shepard Johnson v. Chester Mitchell

May 10, 2012

SHEPARD JOHNSON, PLAINTIFF,
v.
CHESTER MITCHELL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiff first initiated this diversity action for malicious prosecution and civil conspiracy to commit malicious prosecution on July 23, 2010 and is currently proceeding with the third amended complaint filed on November 6, 2011. (See Dkt. No. 119.)

Presently pending before the court are defendant Kim Parsons's motions to dismiss plaintiff's claims against her for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2) and for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6), originally filed on March 29, 2012. (Dkt. No. 181.) On April 13, 2012, the court ordered plaintiff to file an opposition to the motions within 21 days, and permitted defendant Parsons to file a reply brief within 14 days of service with plaintiff's opposition, after which the motions would be submitted on the record without oral argument. (Dkt. No. 189.) On May 4, 2012, plaintiff filed a timely opposition to defendant Parsons's motions, along with a request for leave to amend his complaint. (Dkt. No. 199.)

After reviewing the papers in support of and in opposition to the motions, the court finds that further briefing would not be of material assistance in deciding the motions.*fn1

Therefore, upon consideration of the briefing submitted, the court's record in this matter, and the applicable law, the court FINDS AS FOLLOWS:

BACKGROUND

The facts and procedural history of this case were previously described in detail in the court's March 2, 2012 order and findings and recommendations related to other motions filed in this matter. (See Dkt. No. 169.) As such, the court only sets forth some limited background facts here.

Plaintiff is a real estate developer who claims that the defendants purchased lots for a planned unit development on an island in Panama. (See Third Amended Complaint, Dkt. No. 119 ["TAC"] at 2-3.) Plaintiff alleges that defendants did not want to be subject to the Conditions, Covenants, and Restrictions ("CC&Rs") for the development, and so rather than settling the matter by way of a contract dispute resolution, defendants "banded together and launched a barrage of deliberate falsehoods, and engaged in wrongful conduct...aimed at upsetting and intimidating him, destroying his reputation and business, disrupting relations with other lot owners, and discouraging prospective purchasers. (TAC at 3-4.) Defendants also allegedly initiated criminal proceedings against him in the Panama courts which were purportedly later dismissed, and which are the subject of plaintiff's malicious prosecution and conspiracy claims in this litigation. (TAC at 4-6.) Plaintiff alleges that he was forced to file for bankruptcy on July 3, 2007 "due in significant part to the false criminal complaints filed by Defendants." (TAC at 5.)

The instant motions to dismiss by defendant Parsons followed.

DISCUSSION

Defendant Kim Parsons's Motion to Dismiss for Lack of Personal Jurisdiction Defendant Parsons moves to dismiss plaintiff's claims against her pursuant to Fed. R. Civ. P. 12(b)(2), contending that she does not have the requisite minimum contacts with the forum state of California to allow the court to exercise personal jurisdiction over her.

As an initial matter, plaintiff objects that defendant Parsons's motion is unusually simple with minimum information. Indeed, the motion is only two pages long. However, defendant Parsons, like plaintiff, is proceeding pro se and the court accordingly has a duty to construe her pleadings and filings liberally. Additionally, despite the brevity of her motion, defendant Parsons sets forth her arguments succinctly with sufficient substance to provide plaintiff with meaningful notice of the grounds of the motion and an opportunity to respond. Accordingly, the court proceeds to the merits of the motion.

Whether Personal Jurisdiction Exists Over Defendant Parsons

The plaintiff generally bears the burden of establishing the district court's personal jurisdiction over the defendant. Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1128-29 (9th Cir. 2003). "A non-resident defendant may be subject to the personal jurisdiction of the court where the defendant has either a continuous and systematic presence in the state (general jurisdiction), or minimum contacts with the forum state such that the exercise of jurisdiction 'does not offend traditional notions of fair play and substantial justice' (specific jurisdiction)." Martinez v. Manheim Central California, 2011 WL 1466684, at *1 (E.D. Cal. Apr. 18, 2011) (citing Int'l Shoe Co. v. Washington, 325 U.S. 310, 316 (1945)). "Where there is no federal statute applicable to determine personal jurisdiction, a district court should apply the law of the state where the court is located." Id. (citing Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004)). "California law requires only that the exercise of personal jurisdiction comply with federal due process requirements." Id. (citing Cal. Civ. Proc. Code § 410.10 and Fred Martin Motor Co., 374 F.3d at 800-01).

In her motion, defendant Parsons states that she has been a continuous permanent resident of Colorado for 33 years and has not been to California since 1995 when she was there on vacation. She is a shareholder of the Solarte Inn Corporation, which was organized and operated only in Panama. She has never personally met plaintiff, nor did she have any written or electronic communications with or concerning plaintiff. She argues that all of the actions complained of in this litigation took place in Panama and that she has no connections or contacts with California. Accordingly, defendant Parsons requests dismissal for lack of minimum contacts with California pursuant to International Shoe v. Washington.

Plaintiff does not argue that this court has general jurisdiction over defendant Parsons. It is clear that she does not have the requisite continuous and systematic contacts with California that approximate a physical presence. Instead, plaintiff claims that the court has specific personal jurisdiction over defendant Parsons.

"Specific personal jurisdiction exists where a case arises out of forum-related acts." Martinez v. Manheim Central California, 2011 WL 1466684, at *2 (E.D. Cal. Apr. 18, 2011). The Ninth Circuit utilizes a three-prong test to determine whether specific jurisdiction exists:

(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the ...


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