Mohazzabi v. Mohazzebi, No. 3:2019cv06453 - Document 15 (N.D. Cal. 2019)
Court Description: ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND DENYING DEFENDANT'S MOTION TO STRIKE 8 14 . (Illston, Susan) (Filed on 12/3/2019)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BEHROOZ MOHAZZABI, Plaintiff, 8 v. United States District Court Northern District of California 9 10 BEHZAD MOHAZZEBI, 11 Defendant. Case No. 19-cv-06453-SI ORDER GRANTING DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND DENYING DEFENDANT’S MOTION TO STRIKE Re: Dkt. Nos. 8, 14 12 13 Defendant Behzad Mohazzebi’s motion to dismiss the complaint is scheduled for a hearing 14 on December 6, 2019 at 10:00 a.m. Pursuant to Civil Local Rule 7-1(b), the Court finds this matter 15 appropriate for resolution without oral argument and VACATES the hearing. For the reasons set 16 forth below, the Court GRANTS defendant’s motion to dismiss for lack of personal jurisdiction. If 17 plaintiff wishes to pursue this lawsuit in another court that has personal jurisdiction over defendant, 18 the Court recommends that plaintiff seek assistance from the Federal Pro Bono Project, available at 19 415-782-8982 or fedpro@sfbar.org. 20 21 BACKGROUND 22 On May 6, 2019, plaintiff Behrooz Mohazzabi filed this lawsuit in San Mateo County 23 Superior Court alleging claims for breach of contract and fraud against his brother, defendant 24 Behzad Mohazzebi.1 After service of the complaint, defendant timely removed the case to the Court. 25 The complaint alleges that defendant orally agreed to personally guarantee repayment of a 26 27 28 1 At the time of the filing of the complaint, plaintiff was represented by counsel. Plaintiff is currently proceeding pro se. 1 loan that plaintiff made to a third brother, Dariush Mohazzebi (“Dariush”), and that defendant has 2 failed to make payments under that alleged personal guarantee. According to the complaint, on or 3 about April 25, 2013, plaintiff orally agreed to loan Dariush $200,000, and defendant orally agreed 4 to guarantee the repayment of the loan with interest. Compl. ¶ BC-1 (Dkt. No. 1-1).2 Plaintiff 5 alleges that by August 12, 2017, “Dariush Mohazzabi3 failed to make full repayment as originally 6 agreed and as renegotiated[,]” and defendant “then failed to pay the balance of Dariush Mohazzebi’s 7 debt as promised, as per the personal guarantee.” Id. at ¶ BC-2. On a “check the box” portion of 8 the state court complaint form, the complaint alleges that “[t]his court is the proper court because 9 the contract was to be performed [in California].” Id. at ¶ 7. The complaint does not contain any United States District Court Northern District of California 10 allegations regarding defendant’s contacts with California. 11 On October 15, 2019, defendant filed a motion to dismiss based on lack of personal 12 jurisdiction and failure to state a claim. In support of the motion, defendant has filed a declaration 13 stating that he is a resident and citizen of Florida, where he has lived since November 2009. 14 Mohazzebi Decl. ¶ 2 (Dkt. No. 8-1). Prior to November 2009, defendant was a resident and citizen 15 of New Jersey. Id. Defendant states that he has never been a resident or citizen of California, never 16 been employed in California, does not maintain any businesses or offices in California, and does not 17 have any bank accounts in California. Id. ¶¶ 2-6. Defendant denies that he made any agreement to 18 guarantee the loan plaintiff made to Dariush, and defendant states, “I have not met with Plaintiff in 19 California at any time during the events alleged in the Complaint. The last time I met Plaintiff in 20 person in California was approximately 10 years ago at a family wedding in Northern California in 21 the summer of 2009.” Id. ¶¶ 8-9. 22 Plaintiff, proceeding in pro per, filed an opposition that did not address personal jurisdiction. 23 Instead, plaintiff’s opposition addresses the merits of his breach of contract and fraud claims, and 24 asserts facts that are not contained in the complaint, such as details about the parties’ alleged 25 conversations regarding the oral contract. See generally Dkt. No. 11. Defendant filed a reply, to 26 27 28 Plaintiff’s opposition states that this agreement was made during a telephone call. Dkt. No. 11 at 1-1. 2 3 Plaintiff has spelled Dariush’s last name two different ways, Mohazzebi and Mohazzabi. 2 1 which plaintiff filed a sur-reply. Dkt. No. 13.4 In his sur-reply, plaintiff asserts that defendant 2 regularly visits his two daughters who live in Los Angeles, California. Id. Plaintiff’s sur-reply also 3 acknowledges that defendant formerly lived in New Jersey and currently lives in Florida. Id. 4 LEGAL STANDARD United States District Court Northern District of California 5 6 A defendant may move to dismiss the complaint for lack of personal jurisdiction. Fed. R. 7 Civ. P. 12(b)(2). Where there is no applicable federal statute that governs personal jurisdiction, a 8 district court “may exercise personal jurisdiction over a defendant ‘if it is permitted by [the state’s] 9 long-arm statute and if the exercise of jurisdiction does not violate federal due process.’” Autodesk, 10 Inc. v. Kobayashi + Zedda Architects, Ltd., 191 F. Supp. 3d 1007, 1013 (N.D. Cal. 2016) (quoting 11 Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006). Since “California’s long-arm 12 statute allows the exercise of personal jurisdiction to the fullest extent permissible under the U.S. 13 Constitution,” a district court need only determine whether the exercise of jurisdiction comports 14 with federal due process requirements. Daimler AG v. Bauman, 571 U.S. 117, 125 (2014). A district 15 court’s exercise of personal jurisdiction comports with due process when the defendant has “certain 16 minimum contacts with [the forum state] such that the maintenance of the suit does not offend 17 ‘traditional notions of fair play and substantial justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 18 310, 316 (1945). A court may exercise either general or specific jurisdiction over an out-of-state 19 defendant. See Daimler AG, 571 U.S. at 127. 20 Upon defendant’s motion to dismiss for lack of personal jurisdiction, “the plaintiff bears the 21 burden of demonstrating that the court has jurisdiction over the defendant.” Pebble Beach Co., 453 22 F.3d at 1154. However where, as here, a district court rules on a motion to dismiss for lack of 23 personal jurisdiction without holding an evidentiary hearing, the plaintiff need only make “a prima 24 facie showing of jurisdictional facts to withstand the motion to dismiss.” Ballard v. Savage, 65 F.3d 25 1495, 1498 (9th Cir. 1995). Where undisputed, a district court must take as true the plaintiff’s 26 27 28 4 Defendant moved to strike the sur-reply because it was filed without leave of Court. In light of plaintiff’s pro se status, the Court grants plaintiff leave to file the sur-reply and DENIES defendant’s motion to strike. 3 1 version of the facts. Am. Tel. & Tel. Co. v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th 2 Cir. 1996) (citations omitted). Conversely, “conflicts between the facts contained in the parties’ 3 affidavits must be resolved in [the plaintiff’s] favor for purposes of deciding whether a prima facie 4 case for personal jurisdiction exists.” Id. 5 United States District Court Northern District of California 6 DISCUSSION 7 Defendant contends that this Court lacks personal jurisdiction over him because he is a 8 Florida resident and he has never lived, worked or done business in California. Defendant argues 9 the only allegation in the complaint that conceivably relates to jurisdiction – that “[t]his court is 10 proper because the contract was to be performed here” – is legally irrelevant because an alleged oral 11 promise made from outside California to guarantee a loan does not subject the promisor to personal 12 jurisdiction in California. Plaintiff’s opposition papers largely do not address personal jurisdiction, 13 except to assert that defendant travels to California to visit his two daughters. 14 The Court concludes that it does not have personal jurisdiction over defendant. There is no 15 basis for general jurisdiction, which requires that “the defendant must engage in continuous and 16 systematic general business contacts” in the forum state. Schwarzenegger v. Fred Martin Motor 17 Co., 374 F.3d 797, 802 (9th Cir. 2004) (internal quotation marks and citation omitted). Here, there 18 is no allegation that defendant has engaged in systematic business contacts in California, and to the 19 contrary, defendant has filed a declaration stating he has never been employed in California and that 20 he has no offices or bank accounts in this state. 21 22 23 24 25 26 27 28 There is also no basis for specific jurisdiction. A district court has specific jurisdiction over the defendant when the following three-prong test is satisfied: (1) The non-resident defendant must direct [one’s] activities or consummate some transaction with the forum or a resident thereof; or perform some act by which [one] purposefully avails [oneself] of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one that 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. 4 United States District Court Northern District of California 1 Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987). Plaintiff bears the burden of satisfying the first 2 two prongs of the test. Schwarzenegger, 374 F.3d at 802. 3 Under the first prong, a plaintiff must establish that the defendant “either purposefully 4 availed itself of the privilege of conducting activities in California, or purposefully directed its 5 activities toward California.” Id. at 802. “For claims sounding in contract, we generally apply a 6 ‘purposeful availment’ analysis and ask whether a defendant has ‘purposefully avail[ed] [himself] 7 of the privilege of conducting activities within the forum State, thus invoking the benefits and 8 protections of its laws.’” 9 Schwarzenegger, 374 F.3d at 802). “For claims sounding in tort, we instead apply a ‘purposeful 10 direction’ test and look to evidence that the defendant has directed his actions at the forum state, 11 even if those actions took place elsewhere.” Picot, 780 F.3d at 1212. Because plaintiff asserts 12 contract and tort claims, both tests apply. Picot v. Weston, 780 F.3d 1206, 1212 (9th Cir. 2015) (quoting 13 14 I. Purposeful Availment – Contract Claim 15 “A showing that a defendant purposefully availed himself of the privilege of doing business 16 in a forum state typically consists of evidence of the defendant’s actions in the forum, such as 17 executing or performing a contract there.” Id. “[T]he mere existence of a contract with a party in 18 the forum state does not constitute sufficient minimum contacts for jurisdiction.” Sher v. Johnson, 19 911 F.2d 1357, 1362 (9th Cir. 1990); see also Doe v. Unocal Corp., 248 F.3d 915, 924 (9th Cir. 20 2001) (“However, an individual’s contract with an out-of-state party alone [cannot] automatically 21 establish sufficient minimum contacts to support personal jurisdiction.”) (internal quotation marks 22 and citations omitted). “Instead, we must look to ‘prior negotiations and contemplated future 23 consequences, along with the terms of the contract and the parties’ actual course of dealing’ to 24 determine if the defendant’s contacts are ‘substantial’ and not merely ‘random, fortuitous, or 25 attenuated.’” Sher, 911 F.3d at 1362 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 479, 26 480 (1985)). 27 Here, plaintiff does not allege that defendant engaged in any “type of affirmative conduct 28 which allow[ed] or promote[d] the transaction of business within the forum state.” Id. Plaintiff 5 United States District Court Northern District of California 1 does not dispute that defendant is a Florida resident, and he asserts that the parties entered into an 2 oral contract on the telephone. The complaint contains the conclusory allegation that the contract 3 was to be “performed” in California, which presumably means that defendant allegedly agreed to 4 send money to plaintiff in California. Thus, the only alleged connection between defendant and 5 California is that defendant entered into a contract with a California resident and agreed to send the 6 California resident money.5 Such a connection is not “substantial” and instead is too attenuated to 7 provide a basis for specific jurisdiction. See Sher, 911 F.3d at 1362-63 (California court did not 8 have specific jurisdiction over Florida law firm that represented California client in criminal 9 proceeding in Florida where “[a]s normal incidents of this representation the partnership accepted 10 payment from a California bank, made phone calls and sent letters to California . . . because neither 11 the partnership nor any of its partners undertook any affirmative action to promote business within 12 California”); see also Picot, 780 F.3d at 1212-13 (California court did not have specific jurisdiction 13 over Michigan resident who allegedly entered oral agreement with California resident where 14 contract was formed in Michigan and defendant performed most of work in Michigan; holding the 15 plaintiff’s California contacts could not provide basis for jurisdiction; and finding the defendant’s 16 two business trips to California did not create a substantial connection). 17 Because plaintiff has not established the first prong of the specific jurisdiction test for the 18 contract claim, the Court does not address the remainder of the analysis with regard to the contract 19 claim. 20 21 II. Purposeful Direction – Fraud Claim 22 “[A] defendant purposefully directed his activities at the forum if he: ‘(1) committed an 23 intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is 24 likely to be suffered in the forum state.’” Picot, 780 F.3d at 1214 (quoting Schwarzenegger, 374 25 F.3d at 803). “In applying this test, we must ‘look[] to the defendant’s contacts with the forum State 26 27 28 Plaintiff’s sur-reply asserts that defendant travels to Los Angeles to visit his daughters. Even if this fact was alleged in the complaint, it would not provide a basis for personal jurisdiction because such personal visits are not affirmative conduct showing that defendant purposefully availed himself of the privilege of conducting business in California. 6 5 United States District Court Northern District of California 1 itself, not the defendant’s contacts with persons who reside there.’” Id. (quoting Walden v. Fiore, 2 571 U.S. 277, 285 (2014)). A “mere injury to a forum resident is not a sufficient connection to the 3 forum” unless the “defendant’s conduct connects him to the forum in a meaningful way.” Walden, 4 571 U.S. at 285. 5 For the same reasons as stated above, the Court finds that defendant did not purposefully 6 direct activities at California. The only alleged connection between defendant and California is the 7 allegation that defendant entered into a contract with a California resident. However, “the plaintiff 8 cannot be the only link between the defendant and the forum.” Id. Plaintiff does not allege that 9 defendant expressly aimed acts at California. Because plaintiff has not established the first prong 10 of the specific jurisdiction test for the fraud claim, the Court does not address the remainder of the 11 analysis with regard to this claim. 12 CONCLUSION 13 14 For the foregoing reasons, the Court hereby GRANTS defendant’s motion to dismiss for 15 lack of personal jurisdiction and DENIES defendant’s motion to strike the sur-reply. Because the 16 Court does not have personal jurisdiction over the defendant, the Court does not address defendant’s 17 motion to dismiss for failure to state a claim. See Ronald C. Fish v. Watkins, No. CV 03-0067- 18 PHX-SMM, 2006 WL 8441121, at *3 (D. Ariz. Dec. 14, 2006) (“[A] court has no authority to 19 address the merits of a claim against a particular party if it lacks personal jurisdiction over that 20 party”), aff'd sub nom. Fish v. Watkins, 298 F. App’x 594 (9th Cir. 2008). 21 22 IT IS SO ORDERED. 23 24 25 Dated: December 3, 2019 ______________________________________ SUSAN ILLSTON United States District Judge 26 27 28 7
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