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Gordon v. APM Terminals North America, Inc.

United States District Court, N.D. California

September 1, 2017



          MARIA-ELENA JAMES, United States Magistrate Judge


         Defendant 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 reasons.


         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.[1] Id. at 3, 5-6; see Pedersen Decl., Ex. A (Agreement), Dkt. No. 9-2.[2] 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.

         On or 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.

         On 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.


         The Court first considers whether it may exercise personal jurisdiction over APMTNA before determining whether service was sufficient.

         A. Rule 12(b)(2)

         1. Legal Standard

         Rule 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).

         Courts 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.”).

         A court 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.

         If a 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 ...

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