United States District Court, S.D. California
ORDER DENYING MOTION FOR EARLY DISCOVERY; AND ORDER
CONTINUING BRIEFING SCHEDULE AND HEARING ON MOTIONS TO
HONORABLE LARRY ALAN BURNS DISTRICT JUDGE
Larissa Ettore originally filed her claims against Defendants
Ronald Huxtable and David Calvo as a third party complaint in
the related case of Ayers v. Lee, 14cv542-LAB (BGS).
Huxtable and Calvo then moved to dismiss for lack of personal
jurisdiction. Because Ayers was already winding down
at that point, and because Ettore's claims had no direct
relationship to the claims pending in Ayers, the
Court severed those claims and directed Ettore to file a new
then filed motions to dismiss for lack of personal
jurisdiction. (Docket nos. 4 and 5.) Huxtable's motion
also sought dismissal for improper venue; and Calvo's,
for failure to state a claim. Plaintiff Larissa Ettore moved
to continue the hearing on those motions, and also for early
fact that Ettore filed her claims in a case where the Court
already had personal jurisdiction over the other parties does
not mean the Court has jurisdiction over Huxtable and Calvo.
motions point out that the underlying claims in this case
arose primarily in Nevada, and that neither of them is
resides here or resided here at the time the claims arose.
Huxtable and Calvo are residents of Florida and Texas,
respectively. They also argue that neither of them directed
their actions towards this District or towards California, so
as to make personal jurisdiction or venue proper here.
argues that she has a colorable claim that the Court can
exercise personal jurisdiction over Defendants. She bases
this on the complaint in Ayers. She refers to an
order by the SEC, which she attaches to her complaint. She
alleges that some defendants in the related case, Ayers
v. Lee, were located in this District, or in California.
She also refers generally to claims that Calvo and Huxtable
assisted James Yiu Lee in his scam. Ettore resides in this
District, but does not allege that Calvo or Huxtable had any
contact with her here.
Ayers complaint does not mention California as the
situs for any part of the claims, though it does mention a
number of other states. Ayers was originally filed
in the District of Nevada, and transferred to this District
only when the defendants waived their objections to defective
venue, so that the case could be adjudicated along with the
related case, S.E.C. v. Lee, 14cv347-LAB (BGS),
which was then pending in this District.
order (Complaint, Ex. B) does not identify any connection
between the underlying claims and this District. It
identifies various things Huxtable and Lee did, the bulk of
which appear to have taken place either in Florida, Nevada,
Colorado, or in some place where one of the Ayers
plaintiffs lived. The only apparent connection between
Huxtable and this District is that Huxtable sent
communications to Lee, and Lee was a resident of this
District. But the Ayers complaint makes clear much
of what Lee did occurred in Nevada, Colorado, or other
states. And in any case, even if Huxtable had some connection
with this District, it would not give the Court any basis for
exercising personal jurisdiction over Calvo.
is clear that the question of whether to allow discovery is
generally within the discretion of the trial judge. However,
where pertinent facts bearing on the question of jurisdiction
are in dispute, discovery should be allowed.”
America West Airlines, Inc. v. GPA Group, Ltd., 877
F.2d 793, 801 (9th Cir. 1989). Where the movant can point to
“little more than a hunch that [early discovery] might
yield jurisdictionally relevant facts, ” denial of
discovery is appropriate. Boschetto v. Hansing, 539
F.3d 1011, 1020 (9th Cir. 2008). Courts in this circuit have
required plaintiffs to present at least a colorable basis for
jurisdiction. See Calix Networks, Inc. v. Wi-Lan,
Inc., 2010 WL 3515759, at *4 (N.D. Cal., Sept. 8, 2010).
Ettore has not even presented a colorable basis for personal
jurisdiction. None of the pleadings or evidence she points to
suggest that there might be evidence showing that either
Huxtable or Calvo might be subject to personal jurisdiction
in this District. The case for jurisdiction over Calvo is
even weaker, because he is not named in the SEC order.
Furthermore, unlike some other cases, alternative venues are
available where jurisdiction would be proper. At a bare
minimum, personal jurisdiction would be proper in the two
districts where Calvo and Huxtable reside. The claims might
need to be severed in order to be transferred there. Another
possibility is the District of Nevada, where most of the
underlying claims arose.
motion for early jurisdictional discovery is
DENIED. Ettore requested that the hearing on
the two motions to dismiss be continued to allow her to seek
early discovery. But during the pendency of her ex
parte discovery request, the deadline to file her
oppositions to the Defendants' two motions passed.
may file her oppositions to the two motions by
Monday, April 24, 2017 and
Defendants may file their reply briefs by Monday
May 1, 2017. The hearing on the two motions is
CONTINUED from Monday, April 3 to
Monday, May 8, 2017 at 11:15 a.m.
The parties should bear in mind ...