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Mykal S. Ryan v. Peter G. Zemanian

September 24, 2012

MYKAL S. RYAN,
PLAINTIFF,
v.
PETER G. ZEMANIAN, DEFENDANT.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER DENYING WITHOUT PREJUDICE MOTION TO DISMISS

Plaintiff, a resident of this District who is proceeding pro se, initially filed his complaint in state court. Defendant removed it on September 6, 2011, then moved to dismiss under Fed. R. Civ. P. 12(b)(2), (3), and (6) on the basis of lack of personal jurisdiction, improper venue, and failure to state a claim, respectively.

The complaint alleges Defendant slandered Plaintiff by falsely stating he had stolen money from a trust account. It also alleged Defendant or his agents invaded his privacy, placed him in a false light, and committed disability discrimination by informing various people he was disabled because of post-traumatic stress disorder, and also saying he was mentally deficient and mentally disturbed. As a result, Plaintiff says, he lost his job as a military intelligence officer, his security clearance was suspended, and he suffered various physical symptoms.

Venue

Because this action was removed, venue is governed by 28 U.S.C. § 1441(a), and not the general venue statute, 28 U.S.C. § 1391. See Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 665 (1953). Because venue is proper under § 1441(a), dismissal for improper venue will be denied. This does not preclude either party from moving to transfer the case, however.

Personal Jurisdiction

Defendant also moved to dismiss on the basis of lack of personal jurisdiction. He argues that Plaintiff has not pleaded any facts that would provide any basis for the Court or any California court to exercise personal jurisdiction over him. Although Defendant briefs the issues of general and specific jurisdiction, his argument essentially is that Defendant only had contact with Virginia, not California, that the only connection this case has with California is the Plaintiff himself. (Mot. to Dismiss, 6:9--23, 7:8--11.) These arguments are supported by Defendant's own declaration.

Courts in the Ninth Circuit apply a three-part test to determine whether it can exercise personal jurisdiction over a nonresident defendant:

(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 forum, thereby invoking the benefits and protections of its laws;

(2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and

(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.

Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004) (citation omitted).

When a defendant moves to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing personal jurisdiction. Farmers Ins. Exchange v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990). Where, as here, the motion is based on written materials, the plaintiff only needs to make a prima facie showing of jurisdictional facts to meet his burden. Uncontroverted allegations in the complaint are to be taken as true. AT & T v. Campagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996). Factual conflicts are resolved in the plaintiff's favor. Id.

Here, both parties relied on written materials. Defendant supported his arguments by means of a declaration, while Plaintiff filed a verified opposition. Because Plaintiff's evidence consists of written materials only, those materials need only demonstrate facts which support a finding of jurisdiction" in order to avoid dismissal. See Data ...


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