United States District Court, N.D. California
ORDER RE: MOTION TO DISMISS RE: DKT. NO. 9
MARIA-ELENA JAMES, United States Magistrate Judge
APM Terminals North America, Inc. (“APMTNA”) has
filed a Motion to Dismiss pursuant to Federal Rules of Civil
Procedure 12(b)(2) and (b)(5). Plaintiff filed an Opposition
(Dkt. No. 13) and APMTNA filed a Reply (Dkt. No. 19). The
Court finds this matter suitable for disposition without oral
argument and VACATES the September 7, 2017
hearing. See Fed. R. Civ. P. 78(b); Civ. L.R.
7-1(b). Having considered the parties' positions, the
relevant legal authority, and the record in this case, the
Court GRANTS APMTNA's Motion for the
following allegations are taken from Plaintiffs Complaint.
See Notice of Removal, Ex. A (Compl.), Dkt. No. 1.
APMTNA and Plaintiff entered into a contract by which APMTNA
agreed to employ Plaintiff to work at its place of business
in Singapore for a period of no less than five years, unless
he sought a job within the Maersk Group after three years of
employment with APMTNA. Id. at 3, 5-6; see
Pedersen Decl., Ex. A (Agreement), Dkt. No.
Plaintiff was required to move from San Francisco, California
to Singapore. Id. at 3. APMTNA promised Plaintiff
that his position would include a portfolio management role
on APMTNA's management team; this would offer Plaintiff
investment opportunities through APMTNA's affiliation
with Maersk. Id. at 5-6. APMTNA also promised to
fully promote and develop its business activities in
Singapore and to create investment opportunities for
Plaintiff, which would allow Plaintiff to secure additional
income beyond that set forth in his employment contract.
Id. In addition, Plaintiff would be employed for a
time period that would last until at least one of his minor
children graduated from high school in Singapore.
Id. Plaintiff accepted the offer of employment, quit
his secure senior position at Deutsche Bank in San Francisco,
and moved to Singapore with his family. Id. at 3, 6.
about February 22, 2016, APMTNA terminated Plaintiffs
employment without cause and with three years remaining on
the contract. Id. Plaintiff alleges APMTNA knew it
would cease doing business in Singapore prior to the
expiration of the promised five-year term of employment.
Id. APMTNA knew there would be no business
development in Singapore in which Plaintiff could invest, and
knew it would not require Plaintiffs employment for the
period stated in his employment agreement. Id.
February 21, 2017, Plaintiff filed this action in San
Francisco Superior Court. See Compl. Plaintiff
asserts causes of action for (1) breach of contract, (2)
common counts, (3) breach of the covenant of good faith and
fair dealing, (4) fraud, and (5) violation of California
Labor Code section 970. See Id. at 2-6. On July 14,
2017, APMTNA removed the action to this Court. See
Notice of Removal. APMTNA now moves to dismiss the Complaint
for lack of personal jurisdiction and for insufficient
service of process. See Mot. Alternatively, APMTNA
requests the Court quash the attempted service. See
Id. at 2 n.1.
Court first considers whether it may exercise personal
jurisdiction over APMTNA before determining whether service
12(b)(2) governs motions to dismiss for lack of personal
jurisdiction. The plaintiff bears the burden of establishing
that the court has jurisdiction over the defendant.
Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th
Cir. 2006). However, this demonstration requires that the
plaintiff “make only a prima facie showing of
jurisdictional facts to withstand the motion to
dismiss.” Love v. Associated Newspapers, Ltd.,
611 F.3d 601, 608 (9th Cir. 2010). To make this showing,
“the plaintiff need only demonstrate facts that if true
would support jurisdiction over the defendant.”
Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir.
1995). “Uncontroverted allegations in the complaint
must be taken as true, and conflicts over statements
contained in affidavits must be resolved in [plaintiff's]
favor.” Love, 611 F.3d at 608; see Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (in
considering a motion to dismiss, a court must accept all of
the plaintiff's allegations as true and construe them in
the light most favorable to the plaintiff). Otherwise, a
defendant could prevent a plaintiff from meeting his burden
simply by contradicting the plaintiff's affidavits.
Farmers Ins. Exch. v. Portage La Prairie Mut. Ins.
Co., 907 F.2d 911, 912 (9th Cir. 1990).
properly exercise personal jurisdiction over a defendant
“if it is permitted by a long-arm statute and if the
exercise of jurisdiction does not violate federal due
process.” Pebble Beach Co., 453 F.3d at 1154.
“Federal courts ordinarily follow state law in
determining the bounds of their jurisdiction over
persons.” Daimler AG v. Bauman, __ U.S. __,
134 S.Ct. 746, 753 (2014). Because “California's
long-arm statute allows the exercise of personal jurisdiction
to the full extent permissible under the U.S. Constitution,
” a court's inquiry centers on whether exercising
jurisdiction comports with due process. Id.;
see Cal. Civ. Proc. Code § 410.10 (“A
court of this state may exercise jurisdiction on any basis
not inconsistent with the Constitution of this state or of
the United States.”). Due process requires that
nonresident defendants have “minimum contact”
with the forum state such that the exercise of personal
jurisdiction “does not offend traditional notions of
fair play and substantial justice.” International
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)
(internal quotations omitted); see Walden v. Fiore,
134 S.Ct. 1115, 1121 (2014) (“For a State to exercise
jurisdiction consistent with due process, the defendant's
suit-related conduct must create a substantial connection
with the forum State.”).
may exercise either general or specific jurisdiction over a
nonresident defendant. Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984).
General jurisdiction exists where a defendant has
“substantial” or “continuous and
systematic” contacts with the forum. Id. at
415. If general jurisdiction exists, the forum has
jurisdiction over the defendant regardless of where the
events giving rise to the litigation occurred. Id.
defendant's contacts with the forum are not sufficient to
establish general jurisdiction, specific jurisdiction may
still be shown. The Court may assert specific jurisdiction
over a nonresident defendant if three requirements are met:
(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 ...