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Linthicum v. Shenkman

United States District Court, Ninth Circuit

September 10, 2013

ROBERT J. SHENKMAN, Executor and administrator of the estate of Stanley Zielony, Defendant.


WILLIAM Q. HAYES, District Judge.

The matter before the Court is the Motion to Dismiss filed by Defendant Robert J. Shenkman. (ECF No. 3).


On May 8, 2013, Plaintiff Christine Linthicum initiated this action with a Complaint against Defendant Robert J. Shenkman ("Defendant"), in his capacity as executor and administrator of the estate of Stanley Zielony. (ECF No. 1). Plaintiff alleges one claim for breach of contract related to a gift of $2, 500, 000.00 that Zielony allegedly made to Plaintiff in anticipation of his impending death. Plaintiff seeks to recover damages from Zielony's estate.

On May 31, 2013, Defendant filed the Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(2), 12(b)(3) and 12(b)(6), along with his declaration and exhibits. (ECF Nos. 3, 3-1, 3-2, 3-3, 3-4, 3-5). On April 24, 2013, Plaintiff filed an opposition to the Motion to Dismiss, along with her declaration. (ECF Nos. 5, 5-1). On July 1, 2013, Defendant filed a reply. (ECF No. 6).


"Linthicum became friends with Zielony in or around 1982, and they remained close until Zielony's death in or around late August 2012. Zielony promised Linthicum that he would always take care of her. In reliance on this promise, among other things, Linthicum maintained Zielony's house in Rancho Bernardo, California for almost a decade, from 1994 until 2003, and frequently showed Zielony's out-of-town guests around San Diego." (Complaint ¶ 7-9; ECF No. 1 at 3).

In late August 2012, a few days before Zielony's death, "[Plaintiff] called Zielony. During this call, Zielony told [Plaintiff] that he instructed [Defendant] to issue her a check for $2, 500, 000.00, and that she could retrieve this check after his (Zielony's) death." Id. ¶ 10. At the time of this call, "Zielony believed he was going to die in a few days." Id. ¶ 13. Plaintiff "accepted Zielony's gift, " which "was given without consideration." Id. ¶ 16-17. "Zielony intended to make [this] gift... to [Plaintiff], but also intended to revoke this gift in the event that he recovered from his illness." Id. ¶ 14. "Zielony never revoked his gift to [Plaintiff] prior to his death in late August 2012." Id. ¶ 18.

"Zielony, and now [Defendant], entered into a valid contract with [Plaintiff]...." Id. ¶ 19 (citing Cal. Civ. Code §§ 1039-40, 1146-48). "Plaintiff has duly performed all the terms and conditions of the contract on her part." Id. ¶ 21. "In early September, after Zielony's death, [Plaintiff] called [Defendant] to retrieve Zielony's $2, 500, 000.00 gift to her. [Defendant] refused to issue the $2, 500, 000.00 check to [Plaintiff], and still refuses." Id. ¶ 11. Defendant breached the contract by refusing to issue the check.

Plaintiff seeks damages in the sum of $2, 500, 000.00, pre-judgment interest, and attorneys' fees and costs. Plaintiff alleges that the Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1332 because she is a citizen of California, Defendant is a citizen of New York, and Zielony was a citizen of New York. Plaintiff alleges that the Court may properly exercise personal jurisdiction over Defendant because Zielony "purposefully directed his gift toward Plaintiff, who is a resident of the State of California, " and because Plaintiff's claim "arises out of Zielony's gift." Id. ¶ 2. Plaintiff alleges that venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(2) because "a substantial part of the events giving rise to Plaintiff's claim" occurred in this district. Id. ¶ 3.


Defendant moves to dismiss this action for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). "In opposition to a defendant's motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing that jurisdiction is proper." Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008) (citation omitted). In the absence of an evidentiary hearing, "the plaintiff need only make a prima facie showing of the jurisdictional facts." Id. (quotation omitted). "The plaintiff cannot simply rest on the bare allegations of its complaint, but uncontroverted allegations in the complaint must be taken as true. We may not assume the truth of allegations in a pleading which are contradicted by affidavit, but we resolve factual disputes in the plaintiff's favor." CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1073 (9th Cir. 2011) (quotations omitted).

The exercise of personal jurisdiction over a nonresident defendant must be authorized under the state's long-arm statute and must satisfy the due process clause of the United States Constitution. See Pac. Atl. Trading Co. v. M/V Main Express, 758 F.2d 1325, 1327 (9th Cir. 1985). "California's long-arm statute is co-extensive with federal standards, so a federal court may exercise personal jurisdiction if doing so comports with federal constitutional due process." Boschetto, 539 F.3d at 1015; see also Cal. Civ. Pro. Code § 410.10. "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.'" CollegeSource, 653 F.3d at 1073 (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1954)). Under due process analysis, a defendant may be subject to either general or specific personal jurisdiction. See Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414 (1984).


The Court may properly exercise personal jurisdiction over Zielony's estate, of which Defendant is executor, so long as the Court could properly exercise personal jurisdiction over Zielony, assuming he were alive. See Hartog v. Jots, Inc., C 03-2986 SBA, 2004 WL 2663197 (N.D. Cal. Jan. 9, 2004) ("If a decedent has minimum contacts with a forum state, then so too does his estate.") (citing SongByrd, Inc. v. Estate of Grossman, 206 F.3d 172, 181 (2d Cir. 2000); Hotel Ramada of Nevada v. Estate of Cheek, 716 F.Supp. 473, 472 (D. Nev. 1989)).

Defendant contends that the Court should dismiss this action pursuant to Rule 12(b)(2) on the ground that Zielony, if he were alive, would not have sufficient minimum contacts with California. Plaintiff contends that she has made a prima facie showing of facts to support the Court's exercise of both general and specific jurisdiction.

I. Evidence Submitted by the Parties

Defendant, as executor of Zielony's estate, states in ...

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