United States District Court, N.D. California
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
(Docket No. 19)
EDWARD M. CHEN, District Judge.
Currently pending before the Court is Defendant Marty Schneider's motion to dismiss for lack of personal jurisdiction. Although Plaintiff Pelican Communications, Inc. filed an opposition to the motion, it failed to make an appearance at the hearing. Having considered the parties' briefs and accompanying submissions, as well as all other evidence of record, the Court hereby GRANTS Mr. Schneider's motion.
A. Legal Standard
Under Federal Rule of Civil Procedure 12(b)(2), a defendant may move to dismiss for lack of personal jurisdiction. In the instant case, Pelican does not dispute that general jurisdiction over Mr. Schneider is lacking. Rather, the dispute between the parties is whether there is specific jurisdiction over Mr. Schneider.
Under Ninth Circuit law, there is a three-prong test for specific jurisdiction.
(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.
Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1227-28 (9th Cir. 2011).
The plaintiff bears the burden of satisfying the first two prongs of the test. If the plaintiff fails to satisfy either of these prongs, personal jurisdiction is not established in the forum state. If the plaintiff succeeds in satisfying both of the first two prongs, the burden then shifts to the defendant to "present a compelling case" that the exercise of jurisdiction would not be reasonable.
Scwharzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004).
Where a defendant's motion is based on written materials only ( i.e., there is no evidentiary hearing), then a "plaintiff need only make a prima facie showing of jurisdictional facts to withstand [a] motion to dismiss." Mavrix, 647 F.3d at 1223. In evaluating whether a prima facie showing has been made, a court must take any uncontroverted allegations in the complaint as true, but it "may not assume the truth of allegations in a pleading which are contradicted by affidavit.'" Id. Thus, the Ninth Circuit has cautioned that "[t]he plaintiff cannot simply rest on the bare allegations of its complaint.'" Id. If there are factual disputes based on competing affidavits submitted by the parties, then those disputes are resolved in the plaintiff's favor. See id.; see also AT&T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996) (stating that "uncontroverted allegations in [plaintiff's] complaint must be taken as true, and conflicts between the facts contained in the parties' affidavits must be resolved in [plaintiff's] favor for purposes of deciding whether a prima facie case for personal jurisdiction exists'").
B. Breach of Contract
Whether there is personal jurisdiction over Mr. Schneider with respect to the claim for breach of contract has two components: (1) whether Pelican has made a prima facie showing that there is personal jurisdiction over TCE and (2) whether Pelican has made a prima facie showing that TCE is Mr. Schneider's alter ego. See, e.g., United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 627 (1st Cir. 2001) (taking note of government's concession that "personal jurisdiction extends to IMB only if (1) the government makes a prima facie case for jurisdiction over SAB" first and then (2) the government can establish that IMB is SAB's alter ego); Goldman v. Seawind Group Holdings Pty Ltd., No. CV 13-01759 SI, 2013 U.S. Dist. LEXIS 124052, at *8-9 (N.D. Cal. Aug. 29, 2013) (stating that, "if plaintiffs have made a prima facie showing that Ward is the alter ego of Seawind or the Corsair companies [over which personal jurisdiction was undisputed], then this Court has personal jurisdiction over him").
In his papers, Mr. Schneider focuses on the second component only. Mr. Schneider points out that he has provided evidence that TCE was not his alter ego. More specifically, in his affidavit, he states: "TCE was a functioning Georgia limited liability company and was not in any way, shape, or form my alter ego, ' as alleged in the Complaint." Schneider Aff. ¶ 9. While this is a bare bones claim not fleshed out in any detail, it is still some evidence - and Pelican has made no attempt to counter Mr. Schneider's affidavit with any evidence of its own. Had Pelican simply provided its own affidavit or declaration disputing Mr. Schneider's affidavit, then the Court would be presented with a factual dispute which it would have to resolve (at this stage in the proceedings) in Pelican's favor. Pelican's failure to provide any evidence, though, is its undoing. Without any counter-evidence at all, the Court cannot ...