United States District Court, N.D. California, San Jose Division
ORDER GRANTING DEFENDANT RICHARD SULTANOV'S
MOTION TO DISMISS RE: DKT. NO. 86
J. DAVILA United States District Judge
OOO Brunswick Rail Management and Brunswick Rail Group
Limited (together, “Brunswick”) allege that
Defendant Richard Sultanov misappropriated Brunswick's
confidential information. Compl. ¶¶ 31-48, Dkt. No.
1. Sultanov moves to dismiss for lack of personal
jurisdiction. Sultanov's motion will be GRANTED.
is a former Brunswick employee. Compl. ¶ 21. Brunswick
alleges that Sultanov improperly sent confidential
information to his personal Gmail account and forwarded that
information to Brunswick's creditors. Id.
¶¶ 35-45. Brunswick filed an ex parte application
for an order to seize and preserve evidence, for expedited
discovery, for a temporary restraining order, and to show
cause why a preliminary injunction should not issue. Dkt. No.
3. This Court ordered evidence to be preserved, enjoined
dissemination of Brunswick's confidential information,
and set a preliminary injunction hearing. Dkt. No. 15. After
the hearing, this Court denied Brunswick's application
for a preliminary injunction for lack of personal
jurisdiction (Dkt. No. 52) but allowed Brunswick to conduct
limited jurisdictional discovery (Dkt. No. 83).
Jurisdictional discovery has now been completed, and Sultanov
moves to dismiss under Fed.R.Civ.P. 12(b)(2).
Civ. P. 12(b)(2) allows dismissal for lack of personal
jurisdiction. When the motion to dismiss is a defendant's
first response to the complaint, the plaintiff need only make
a prima facie showing that personal jurisdiction exists.
See Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557
F.2d 1280, 1285 (9th Cir. 1977). While a plaintiff cannot
“ ‘simply rest on the bare allegations of its
complaint, ' uncontroverted allegations in the complaint
must be taken as true” and “[c]onflicts between
parties over statements contained in affidavits must be
resolved in the plaintiff's favor.”
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d
797, 800 (9th Cir. 2004) (quoting Amba Marketing Sys.,
Inc. v. Jobar Int'l, Inc., 551 F.2d 784, 787 (9th
Cir. 1977), and citing AT&T v. Compagnie Bruxelles
Lambert, 94 F.3d 586, 588 (9th Cir. 1996)). Where a
defendant moves to dismiss a complaint for lack of personal
jurisdiction, the plaintiff bears the burden of demonstrating
that jurisdiction is appropriate. Sher v. Johnson,
911 F.2d 1357, 1361 (9th Cir. 1990).
argues that this case must be dismissed because he is not
subject to general or specific personal jurisdiction in this
district. Def.'s Mot. to Dismiss (“MTD”),
Dkt. No. 86. The Court agrees.
General Personal Jurisdiction
an individual, the paradigm forum for the exercise of general
jurisdiction is the individual's domicile . . . .”
Daimler AG v. Bauman, 134 S.Ct. 746, 760 (2014)
(quoting Goodyear Dunlop Tires Operations, S.A. v.
Brown, 564 U.S. 915, 924 (2011)). “Unless a
defendant's contacts with a forum are so substantial,
continuous, and systematic that the defendant can be deemed
to be ‘present' in that forum for all purposes, a
forum may exercise only ‘specific'
jurisdiction-that is, jurisdiction based on the relationship
between the defendant's forum contacts and the
plaintiff's claim.” Yahoo! Inc. v. La Ligue
Contre Le Racisme Et L'Antisemitisme, 433 F.3d 1199,
1205 (9th Cir. 2006). In “rare instances, ”
courts have exercised general jurisdiction “when the
individual's contacts with a forum are so substantial
that ‘the defendant can be deemed to be present in that
forum for all purposes, ' ” but “frequent
visits to a forum, [or] owning property in a forum, do not,
alone, justify the exercise of general jurisdiction.”
Hendricks v. New Video Channel Am., LLC, No.
2:14-CV-02989-RSWL-S, 2015 WL 3616983, at *4 (C.D. Cal. June
was born in Russia and moved to California in 1998. MTD 1;
Pls.' Opp'n to Def.'s Mot. to Dismiss
(“Opp'n”) 2, Dkt. No. 97. He attended high
school in Carmel and college at the University of California
at Davis. Opp'n 2-3. He is a U.S. citizen and has a
passport and Social Security number. Id. He left the
United States in 2007 and now lives and works in Russia. MTD
3-4. Over the past decade, he has spent approximately 20 days
in California. Id.; Def.'s Reply in Support of
Mot. to Dismiss (“Reply”) 5, Dkt. No. 98. He has
not visited California during the last four years. MTD 7.
presents several reasons why it believes Sultanov is
domiciled in California or has contacts with California that
are sufficiently continuous and systematic to establish
general personal jurisdiction. First, it points to
Sultanov's use of a mailing address in Monterey as
evidence that Sultanov “maintains his status as a
resident of California and Monterey County . . . .”
Opp'n 15. Sultanov does not dispute that he receives mail
and packages at that address, or that (as discussed below)
the address is associated with his U.S. driver's license,
bank accounts, and credit cards. Opp'n 7-8, 15, 18-19.
But he contends that the address is nothing more than the
location of “a family friend's property that [he]
sometimes uses as a mailing address.” MTD 6-7. It is
not his residence-he says that he resides in Russia, and he
does not maintain a residence or own real property in
Monterey or anywhere else in the United States. Id.
at 2, 6-7. Brunswick shows that Sultanov has used the address
when filling out certain forms or to receive mail, but it
offers no evidence that Sultanov has ever physically resided
Sultanov has a checking account at Bank of America that
includes the notation “DBA: Richard Sultanov
Consulting.” Opp'n 4-5, 15-16. The account is
associated with the Monterey address. Id. at 15.
According to Brunswick, this notation shows that Sultanov
operates a sole proprietorship with its principal place of
business in California. Id. The account received a
payment of $13, 000 from Paul Ostling (who was formerly a
defendant in this action) for rendering services for a
company called PSINOS. Id. at 15, 23. Sultanov
responds that this consulting business “does not exist
and has never existed, ” that he has never established
any kind of business entity in California, and that he
“agreed to add that notation to his personal checking
account at the suggestion of a bank employee” in order
to obtain certain unspecified benefits. Reply 7. Brunswick
has not identified any business activity that Sultanov has
conducted in California.
Sultanov has a California driver's license that he
renewed most recently in 2016. Opp'n 7-8. He used the
Monterey address. Id. The license renewal form
required Sultanov to agree to the following language:
“I consent to receive service of process at this
mailing address pursuant to [three sections] of the Civil
Procedure Code.” Id. at 8. Brunswick argues
that Sultanov consented to personal jurisdiction by agreeing
to this clause, but Sultanov responds that consent to service
of process is not the same as consent to personal
jurisdiction. See id.; Reply 8; AM Trust v. UBS
AG, No. 15-15343, 2017 WL 836080, at *2 (9th Cir. Mar.
3, 2017) (“Nor does [Defendant's] acceptance ...