United States District Court, S.D. California
ORDER GRANTING MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION; GRANTING LEAVE TO AMEND
JEFFREY T. MILLER, District Judge.
Defendant Chris Mason ("Mason") moves to dismiss the complaint of Plaintiff Primarch Manufacturing, Inc. ("Primarch") for lack of personal jurisdiction. Primarch opposes the motion. Pursuant to Local Rule 7.1(d)(1), this matter is appropriate for decision without oral argument. For the reasons set forth below, the court grants the motion to dismiss for lack of personal jurisdiction and grants Plaintiff 10 days leave to amend from the date of entry of this order.
On November 12, 2013, Primarch, incorporated in the State of California, commenced this action by filing a "form complaint" in the Superior Court of California, County of San Diego. (Ct. Dkt. 1). Primarch's complaint arises from the sale of dietary supplements to At Large Nutrition, LLC ("At Large"). At Large, a Virginia Limited Liability Company, is solely managed by Mason, also a resident of the State of Virginia. (Mason Decl. ¶¶2, 3). The complaint alleges two causes of action for breach of contract and a common count "for goods, wares, and merchandise sold and delivered to defendant and for which defendant promised to pay plaintiff." (Compl. at p.4). On December 19, 2013, Defendants removed the action to this court based upon diversity jurisdiction.
The complaint alleges that Defendants placed seven e-mail purchase orders between February 27, 2013, and September 6, 2013. Defendants took delivery of the goods but allegedly have refused to pay Plaintiff. Plaintiff seeks to recover $110, 467.81 in damages. (Compl. at p. 3).
On December 26, 2013, Defendant At Large filed an answer to the complaint and a counterclaim. The counterclaim asserts four claims for (1) breach of contract, (2) breach of express warranty, (3) negligent misrepresentation, and (4) intentional misrepresentation. (Ct. Dkt. 3). In broad brush, At Large alleges that the parties entered into a part oral and part written contract for the purchase of nutritional supplements. (Counterclaim "CC" ¶13). Primarch allegedly promised to ship the products within four weeks following the placement of a purchase order. At Large further alleges that Primarch breached the agreement by failing to provide the product in a timely fashion. (CC ¶15).
In support of his motion to dismiss for lack of personal jurisdiction, Mason submits a declaration wherein he declares that he is the managing member of At Large, possesses no property or business interests in California, and that all payments to Plaintiff originated from At Large. (Mason Decl. ¶¶1, 2). He also declares that he has never done business under the fictitious business name of At Large and that his "sole involvement" with the business dealings between At Large and Primarch "was as the representative of At Large." (Id. ¶4). Primarch opposes the motion to dismiss for lack of personal jurisdiction.
The primary issue raised by Mason is whether his contacts with the State of California, in his capacity as the managing and sole employee of a foreign corporation, are sufficient to establish personal jurisdiction such that it comports with "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington , 326 U.S. 310, 316 (1945).
Pursuant to Rule 12(b)(2), a court may dismiss a suit for "lack of jurisdiction over the person." Fed.R.Civ.P. 12(b)(2). The court may "exercise personal jurisdiction over a non-resident if jurisdiction is proper under California's long-arm statute and if that exercise accords with federal constitutional due process principles." Fireman's Fund Ins. Co. v. National Bank of Cooperatives , 103 F.3d 888, 893 (9th Cir. 1996). As the Ninth Circuit has explained:
California's long-arm statute authorizes the court to exercise personal jurisdiction over a non-resident defendant on any basis not inconsistent with the California or federal Constitution. Cal.Code Civ. Proc. § 410.10. The statutory and constitutional requirements therefore merge into a single due process test.
Id. at 893. "Due process requires only that... [the defendant] have certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.'" International Shoe , 326 U.S. at 316. Where the court does not conduct an evidentiary hearing, a plaintiff need only establish a prima facie case of personal jurisdiction. Sher v. Johnson , 911 F.2d 1357, 1361 (9th Cir. 1990).
On a motion to dismiss for lack of personal jurisdiction, the party seeking to invoke the court's jurisdiction bears the burden of establishing contacts by the non-resident defendant sufficient to establish personal jurisdiction. WNS, Inc. v. Farrow , 884 F.2d 200, 203 (9th Cir. 1989).
[O]n a motion to dismiss for lack of jurisdiction, uncontroverted allegations in the plaintiff's complaint must be taken as true, and conflicts between the facts contained in the parties' affidavits must be resolved in the plaintiff's favor for purposes of ...