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Perlow v. Mann

United States District Court, Ninth Circuit

October 22, 2013

JASON A. PERLOW, Plaintiff,
v.
PERRY MANN; MICHAEL MORTON, Defendants.

ORDER GRANTING DEFENDANT MICHAEL MORTON'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND DENYING CHANGE OF VENUE [33]

OTIS D. WRIGHT, II, District Judge.

I. INTRODUCTION

On September 12, 2013, Defendant Michael Morton moved to dismiss Plaintiff Jason A. Perlow's First Amended Complaint ("FAC") for defamation and conspiracy to defame under Federal Rule of Civil Procedure 12(b)(2). (ECF No. 33.) Alternatively, Morton moved to transfer venue to the United States District Court for the District of Nevada under 28 U.S.C. § 1404(a). ( Id. ) Morton argues that California lacks personal jurisdiction over him and that Nevada provides a more convenient forum for all parties. (Mot. 3, 8.) For the following reasons, the Court GRANTS Morton's Motion to Dismiss for Lack of Personal Jurisdiction and DENIES Morton's Motion to Transfer Venue.[1]

II. FACTUAL BACKGROUND

Perlow, Mann, and Morton are co-investors in NM Ventures, a nationwide business group that operates entertainment venues at the Palms Hotel and Casino in Las Vegas, Nevada. (FAC ¶ 14.) The Venture operates through an entity called N9NE Group. ( Id. ) On August 8, 2012, Defendant Perry Mann sent the following alleged email to Perlow, copying several other members of NM Ventures: "Perlow-I respect your loyalty to your pals SY but let's all remember you where [ sic ] the schmuck that got caught doing blow in the elevator at the Palms and subsequently banded [sic] from all the N9NE Venus [ sic ]." (FAC ¶ 19.)

An hour later, Mann allegedly sent another email to reiterate his previous statement: "You [Perlow] were banned from the N9NE venues by the mangers [ sic ], that's a fact my friend." (FAC ¶ 24.) Because the Venture is a nationwide organization, investors in California, Illinois, New Mexico, Nevada, and Colorado received the email. (Silver Decl. Ex. I at ¶ 6.) The parties also hail from different states: Perlow resides in Chicago, Illinois; Morton lives in Las Vegas, Nevada; and Mann lives in Manhattan Beach, California. (FAC ¶¶ 7, 9.; Mann Decl. Ex. H at ¶ 1.)

Morton served as NM Ventures's manager at the time Perlow allegedly used cocaine in the Palms Hotel elevator. (Mann Decl. Ex. B. at ¶ 10.) According to Mann, right before he sent the email, Morton "verbally told [him]" that Perlow had been caught using cocaine in the Palms Hotel elevator and had subsequently been banned from Palms' venues. ( Id. ) Mann then sent the alleged email from his home in Manhattan Beach, California. (Mann Decl. Ex. H at ¶ 10.)

In response to the allegedly defamatory emails, Perlow had George Maloof-a managing member of the Palms Hotel and Casino-send Perlow a letter, stating that Mann's claims were "totally false." (FAC ¶ 29, Ex B.) On August 9, 2012, Perlow's counsel sent a letter to Mann demanding that Mann retract the allegedly libelous comments. ( Id. Ex. C.) Then on July 16, 2013, Perlow filed his FAC. He added Morton as a defendant, alleging that Morton defamed and conspired to defame him by communicating the allegedly defamatory material to Mann, who then republished the statements in the email. (FAC ¶ 36.) On September 26, 2013, Perlow filed an Ex Parte Application requesting limited jurisdictional discovery on the personal-jurisdiction issue. (ECF No. 40.) The Court subsequently denied the Application, finding that the requested jurisdictional discovery would be futile. (ECF No. 41.) Morton's Motion to Dismiss is now before the Court for decision.

III. LEGAL STANDARD

A defendant may move to dismiss a case for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). The plaintiff bears the burden of demonstrating that jurisdiction exists. Love v. Assoc. Newspapers Ltd., 611 F.3d 601, 608 (9th Cir. 2010).

District courts have the power to exercise personal jurisdiction to the extent of the law of the state in which they sit. Fed.R.Civ.P. 4(k)(1)(A); Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1988). California's long-arm jurisdictional statute is coextensive with federal due-process requirements. Cal. Civ. Proc. Code § 410.10; Roth v. Garcia Marquez, 942 F.2d 617, 620 (9th Cir. 1991).

For a court to exercise personal jurisdiction over a nonresident defendant consistent with due process, the defendant must have sufficient "minimum contacts" with the forum state so that the exercise of jurisdiction "does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945). Using the "minimum contacts" analysis, a court may obtain either general jurisdiction or specific jurisdiction over a nonresident defendant. Doe v. Unocal Corp., 248 F.3d 915, 923 (9th Cir. 2001). If the defendant's activities are insufficient to subject him to general jurisdiction, then the court looks to the nature and quality of the defendant's contacts in relation to the cause of action to determine whether specific jurisdiction exists. Data Disc, Inc. v. Sys. Tech. Assoc. Inc., 557 F.2d 1280, 1287 (9th Cir. 1977).

Under 28 U.S.C. § 1404(a), district courts have broad discretion to determine whether to transfer a case "according to an individualized, case-by-case consideration of convenience and fairness" for the parties and the witnesses involved. Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000). Specifically, a court should consider the following factors:

(1) the location where the relevant agreements were negotiated and executed, (2) the state that is most familiar with the governing law, (3)the plaintiff's choice of forum, (4) the respective parties' contacts with the forum, (5) the contacts relating to the plaintiff's cause of action in the chosen forum, (6) the differences in the costs of litigation in the two forums, (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses, ... (8) the ease of access to ...

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