Ideasolv LLC v. Rouge et al, No. 2:2021cv01905 - Document 18 (D. Ariz. 2022)
Court Description: ORDER denying Defendants Geante Rouge, SARL's and Youssef Aarab's Motion to Dismiss Plaintiff Ideasolv's complaint for lack of personal jurisdiction 13 . IT IS FURTHER ORDERED granting Defendants Geante Rouge, SARL's and Youssef Aarab's Motion to Dismiss Count Three (Common Law Fraud) claim, per the parties' stipulation. (Doc. 13 ; Doc. 16 .) IT IS FURTHER ORDERED denying Defendant Youssef Aarab's Motion to Dismiss Count Two (Unjust Enrichment) for failu re to state a claim 13 . IT IS FINALLY ORDERED that the remaining claims are (1) breach of contract against Geante; (2) unjust enrichment against Geante, Aarab, and Djuna; and (3) common law fraud against Djuna. (Doc. 1 -3.) Signed by Judge Michael T Liburdi on 8/01/2022. (REK)
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Ideasolv LLC, 9 Plaintiff, 10 11 v. 12 Geante Rouge SARL, et al., 13 No. CV-21-01905-PHX-MTL ORDER Defendants. 14 15 Before the Court is Geante Rouge, SARL’s (“Geante”) and Youssef Aarab’s 16 (“Aarab”) Motion to Dismiss. (Doc. 13.) Geante and Aarab argue that they are not subject 17 to personal jurisdiction in Arizona. (Id. at 3–9.) In the alternative, they argue for dismissal 18 of two of Plaintiff IdeaSolv, LLC’s three claims pursuant to Federal Rule of Civil 19 Procedure 9(b) and 12(b)(6). (Id. at 9–13, Doc. 17 at 2.) For the reasons stated below, the 20 Motion is granted in part and denied in part.1 21 I. BACKGROUND 22 Plaintiff asserts that Aarab, as a member and manager of Geante, was hired to 23 promote the music career of Gandhi Bilel Djuna (“Djuna”). (Doc. 1-3 ¶¶ 4–7.) Aarab and 24 Djuna both reside in Morocco, and Geante’s principal place of business is in Morocco. (Id. 25 ¶¶ 2–5.) Plaintiff’s principal place of business in Arizona. (Id. ¶ 1.) As a member of Geante, 26 Aarab allegedly agreed to pay Plaintiff $1,200,000 to create a website and a mobile app to 27 1 28 Both parties have fully briefed the issues and oral argument would not have aided the Court’s decisional process. See Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998); see also LRCiv 7.2(f); Fed. R. Civ. P. 78(b). 1 promote Djuna’s U.S. concert tour. (Id. ¶¶ 12–19.) Djuna toured in numerous U.S. cities, 2 but Geante and Aarab never set foot in Arizona. (Id. ¶ 29; Doc. 13 at 4–5.) Plaintiff alleges 3 that even though it fulfilled all of its contractual obligations, Geante only paid $872,049.00 4 for the work done. (Doc. 1-3 ¶¶ 17, 27.) Including late fees and interest, Plaintiff asserts 5 that Geante still owes $360,746.10. (Id. ¶ 28.) Plaintiff attempted numerous times to 6 collect, but Geante and Aarab never responded to the requests. (Id. ¶¶ 32–33.) 7 In August 2020, Plaintiff filed a complaint in Maricopa County Superior Court for 8 (1) breach of contract against Geante; (2) unjust enrichment against Geante, Aarab, and 9 Djuna; and (3) common law fraud against Aarab and Djuna. (Id. ¶¶ 34–58.) Defendants 10 timely removed the action to this Court pursuant to 28 U.S.C. § 1441(b) by invoking 11 diversity of citizenship and alleging an amount in controversy higher than $75,000. (Doc. 12 1 at 4–5.) Djuna is not a party to this motion. (Doc. 13.) 13 II. LEGAL STANDARD 14 A. 15 Under Fed. R. Civ. P. 12(b)(2), a defendant may move, “prior to trial, to dismiss the 16 complaint for lack of personal jurisdiction.” Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 17 F.2d 1280, 1285 (9th Cir. 1977). The plaintiff bears the burden to show that an exercise of 18 jurisdiction is proper. Ziegler v. Indian River Cnty., 64 F.3d 470, 473 (9th Cir. 1995). Here, 19 the plaintiff “need only make a prima facie showing of jurisdictional facts.” Sher v. 20 Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990) (internal citation omitted). When examining 21 whether a prima facie showing of jurisdictional facts exists, any “uncontroverted 22 allegations in [the complaint] must be taken as true, and conflicts between the facts 23 contained in the parties’ affidavits must be resolved in [plaintiff’s] favor.” AT&T Co. v. 24 Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996) (internal quotation marks 25 and citations omitted). Rule 12(b)(2) 26 B. 27 To survive a motion to dismiss for failure to state a claim, a complaint must contain 28 “a short and plain statement of the claim showing that the pleader is entitled to relief” such Rule 12(b)(6) -2- 1 that the defendant is given “fair notice of what the . . . claim is and the grounds upon which 2 it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 3 8(a)(2)); Conley v. Gibson, 355 U.S. 41, 47 (1957). Dismissal under Rule 12(b)(6) “can be 4 based on the lack of a cognizable legal theory or the absence of sufficient facts alleged 5 under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 6 (9th Cir. 1988). A complaint should not be dismissed unless the plaintiff fails “to raise a 7 right to relief above a speculative level.” Twombly, 550 U.S. at 555. 8 The Court must accept material allegations in the complaint as true and construe 9 them in the light most favorable to the plaintiff. North Star Int’l v. Ariz. Corp. Comm’n, 10 720 F.2d 578, 580 (9th Cir. 1983). “Indeed, factual challenges to a plaintiff’s complaint 11 have no bearing on the legal sufficiency of the allegations under Rule 12(b)(6).” Lee v. City 12 of L.A., 250 F.3d 668, 688 (9th Cir. 2001). Review of a Rule 12(b)(6) motion is “limited to 13 the content of the complaint.” North Star Int’l, 720 F.2d at 581. 14 III. DISCUSSION 15 A. 16 The parties agree that general jurisdiction over Geante and Aarab does not exist in 17 Arizona. (Doc. 13 at 4–5, Doc. 16 at 1.) Next, Geante and Aarab argue that Arizona does 18 not have specific jurisdiction over them. (Doc. 13 at 5–9.) Rule 12(b)(2) 19 Arizona’s long-arm statute allows courts to exercise personal jurisdiction to the 20 maximum extent permitted by the U.S. Constitution. Ariz. R. Civ. P. 4.2(a). Courts in the 21 Ninth Circuit 22 23 24 25 26 27 28 apply a three-part test to determine whether the exercise of specific jurisdiction over a nonresident defendant is appropriate: (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 forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which 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. Boschetto v. Hansing, 539 F.3d 1011, 1016 (9th Cir. 2008); see also Burri L. PA v. Skurla, -3- 1 35 F.4th 1207, 1212 (9th Cir. 2022). “If the plaintiff succeeds in satisfying both of the first 2 two prongs, the burden then shifts to the defendant to ‘present a compelling case’ that the 3 exercise of jurisdiction would not be reasonable.” Glob. Commodities Trading Grp., Inc. 4 v. Beneficio de Arroz Choloma, S.A., 972 F.3d 1101, 1107 (9th Cir. 2020) (quoting Burger 5 King Corp. v. Rudzewicz, 471 U.S. 462, 476–78 (1985)). At this stage, the Court is 6 permitted to consider affidavits from both parties. See, e.g., Data Disc, 557 F.2d at 1285 7 (“If the court determines that it will receive only affidavits . . . these very limitations dictate 8 that a plaintiff must make only a prima facie showing of jurisdictional facts through the 9 submitted materials in order to avoid a defendant’s motion to dismiss.”). Here, Plaintiff 10 11 satisfies the first two prongs of the three-prong test. i. Purposeful Availment 12 For contract disputes, the mere existence of a contract is not sufficient to subject the 13 out-of-state party to the personal jurisdiction of the plaintiff’s state. Burger King, 471 U.S. 14 at 468. Rather, courts “must evaluate the parties’ entire course of dealing, not solely the 15 particular contract or tortious conduct giving rise to the claim, when assessing whether a 16 defendant has minimum contacts with a forum.” Glob. Commodities, 972 F.3d at 1108. As 17 long as the contract is evidence of a negotiation process, not merely a “fleeting” business 18 relationship with a “center of gravity lay[ing] elsewhere,” the relationship will be sufficient 19 to confer specific personal jurisdiction. Id. (finding sufficient contacts existed to exercise 20 personal jurisdiction where the defendant had ongoing payment obligations in California, 21 denoting a “sustained [] relationship”); but see Thomas P. Gonzalez Corp. v. Consejo 22 Nacional De Produccion De Costa Rica, 614 F.2d 1247 (9th Cir. 1980) (finding that a 23 contract formed after a California plaintiff traveled to a foreign country to bid did not give 24 rise to personal jurisdiction in California); Boschetto, 539 F.3d 1011 (holding that a single 25 eBay sale to a California resident did not give rise to personal jurisdiction there in the 26 absence of continuing obligations). Purposeful availment is found if “business activities 27 reach out beyond one state and create continuing relationships and obligations.” Id. at 1017 28 (quoting Travelers Health Ass’n v. Commonwealth of Va., 339 U.S. 643, 647 (1950)). -4- 1 Contrary to the “fleeting” business relationships which this Circuit has held to be 2 insufficient to confer personal jurisdiction, the “center of gravity” of this agreement was in 3 Arizona. Geante, through its agent Aarab, entered a $1,200,000 contract with an Arizona 4 plaintiff (Doc. 1-3 ¶¶ 12–13), and made six payments, totaling $872,049, to Plaintiff’s 5 Arizona bank. (Id. ¶¶ 20–27; Doc. 16-1 ¶ 12.) Plaintiff performed all the work required by 6 the contract in Arizona. (Doc. 16-1 ¶ 13.) Geante and Aarab “retained the right to evaluate, 7 improve and modify the tasks to be performed under the [contract],” which is indicative of 8 a sustained relationship. (Id. ¶ 14.) This case is distinguishable from Boschetto. 539 F.3d 9 1011. As opposed to an anonymous online purchase of a product, Aarab here specifically 10 negotiated, via “dozens of emails,” a contract with Plaintiff, which he knew was domiciled 11 in Arizona, and agreed to resolve disputes according to Arizona law. (Id. ¶¶ 8, 4, 11.) In 12 sum, Geante and Aarab “reach[ed] out beyond” [Morocco] and “create[d] continuing 13 relationships and obligations with citizens of another state,” so they are subject to 14 “sanctions in the other [s]tate for the consequences of their activities.” Burger King, 471 15 U.S. at 473. 16 ii. Arising Out of Or Relates to Defendant’s Forum Contacts 17 Although Geante and Aarab argue that since they have no contacts with Arizona, 18 Plaintiff’s claims cannot arise out of their contacts (Doc. 13 at 8), that circular logic is 19 unpersuasive. Given that the above analysis establishes that Geante and Aarab had the 20 requisite minimum contacts with Arizona via the contract with Plaintiff, failure to pay the 21 remaining balance of that contract “arises out of or relates to the defendant’s forum-related 22 activities.” See Glob. Commodities, 972 F.3d 1101 (holding that a foreign entity entering a 23 contract with continuing obligations is sufficient, without physical presence, to subject it 24 to a state’s personal jurisdiction). Geante’s and Aarab’s only Arizona contacts were their 25 business dealings with Plaintiff, and all counts in the complaint are directly related to those 26 transactions. (Doc. 1-3 ¶¶ 34–58, Doc. 13 at 5.) Thus, this prong is satisfied. 27 28 iii. Reasonableness of Exercising Jurisdiction Since Plaintiff satisfies the first two prongs, Geante and Aarab must “present a -5- 1 compelling case” to show that the exercise of jurisdiction would be unreasonable. Burger 2 King, 471 U.S. at 477. In determining the reasonableness of exercising jurisdiction, the 3 Court balances seven factors: 4 (1) the extent of the defendants’ purposeful injection into the forum state’s affairs; (2) the burden on the defendant of defending in the forum; (3) the extent of the conflict with the sovereignty of the defendant’s state; (4) the forum state’s interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to the plaintiff’s interest in convenient and effective relief; and (7) the existence of an alternative forum. 5 6 7 8 9 See CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1079 (9th Cir. 2011). No one 10 factor, even the burden on the defendant of defending in the forum, is dispositive. Core- 11 Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1488–89 (9th Cir. 1993); see also Dole Food 12 Co. v. Watts, 303 F.3d 1104, 1117 (9th Cir. 2002) (“[T]wo of the seven factors—burden 13 on defendants and sovereignty conflicts— . . . are likely to favor foreign defendants every 14 time personal jurisdiction in the United States is considered.” But those two, in isolation, 15 are not enough to overcome the “strong presumption of reasonableness of the assertion of 16 personal jurisdiction.”). 17 Geante and Aarab, however, only raise the second factor in their motion: the burden 18 on the defendant. (Doc. 13 at 8–9.) No one factor by itself is sufficient to meet the movant’s 19 high burden and render the exercise of personal jurisdiction unreasonable. Additionally, 20 the Court is not required to analyze factors beyond those which the parties raised. See 21 CollegeSource, 653 F.3d at 1079–80 (noting that, since the defendant only raised three of 22 the possible seven factors, the court did not analyze the remaining four and held that the 23 defendant did not present a compelling case to avoid the exercise of personal jurisdiction). 24 Thus, Geante and Aarab failed to present a persuasive case to avoid the strong presumption 25 of reasonableness, and are subject to personal jurisdiction in Arizona. 26 B. 27 The parties stipulate that Plaintiff’s fraud claim should be dismissed for failure to Rule 12(b)(6) 28 -6- 1 state a claim under the economic loss doctrine.2 (Doc. 13 at 9–11, Doc. 16 at 1.) 2 As to Count II, Aarab argues that Plaintiff’s unjust enrichment claim against him 3 should be dismissed for failure to state a claim. (Doc. 13 at 13.) Specifically, Aarab argues 4 that it is “conclusory” to state that he, as an employee of Geante, benefitted financially 5 from the promotion of Djuna’s concert tour. Id. 6 To prevail on an unjust enrichment claim under Arizona law, a plaintiff must prove 7 five elements: “(1) an enrichment, (2) an impoverishment, (3) a connection between the 8 enrichment and impoverishment, (4) the absence of justification for the enrichment and 9 impoverishment, and (5) the absence of a remedy provided by law.” Wang Elec., Inc. v. 10 Smoke Tree Resort, LLC, 230 Ariz. 314, 318 (Ariz. Ct. App. 2012). In short, it “provides a 11 remedy when a party has received a benefit at another’s expense and, in good conscience, 12 the benefitted party should compensate the other.” Id. Although a plaintiff is permitted to 13 “state as many separate claims or defenses as it has, regardless of consistency,” “where 14 there is a specific contract which governs the relationship of the parties, the doctrine of 15 unjust enrichment has no application.” Fed. R. Civ. P. 8(d)(3); Brooks v. Valley Nat’l Bank, 16 113 Ariz. 169, 174 (Ariz. 1976). 17 Here, the unjust enrichment claim against Aarab meets the five requirements under 18 Arizona law, thus making the prima facie showing that is necessary at this stage. The 19 complaint alleges that (1) Aarab is the member and manager of Geante, the manager of 20 Djuna’s music career, and benefits financially and professionally from Djuna’s success 21 (Doc. 1-3 ¶¶ 4, 6, 7); (2) despite Plaintiff meeting all obligations in the contract, Geante 22 failed to pay and now owes Plaintiff $360,746.10 (id. ¶¶ 17–19, 28); (3) Geante entered a 23 contract with Plaintiff to create an application that would promote Djuna’s U.S. concert 24 tour, so the enrichment and impoverishment are “directly and causally related” (id. 25 ¶¶ 7, 12, 46); (4) there is no “legal justification for the enrichment of Aarab . . . at 26 [Plaintiff]’s expense.” (id. ¶ 48.) From these purported facts, Aarab’s unjust enrichment, 27 Aarab also argues that Plaintiff’s fraud claim should be dismissed since it is not “pleaded with the particularity required by Fed. R. Civ. P. 9(b).” (Doc. 13 at 11.) Since Plaintiff stipulated to dismiss the fraud claim, the Court will not analyze that issue separately. 2 28 -7- 1 given his managerial role in Geante, is alleged “above a speculative level.” Twombly, 550 2 U.S. at 555. Aarab cites no relevant case law to the contrary. 3 Additionally, although there is a governing contract, that contract is between 4 Plaintiff and Geante, rather than between Plaintiff and Aarab. (Id. ¶ 12.) Thus, the fifth 5 element, “absence of remedy provided by law,” is also met, since Plaintiff cannot pursue a 6 breach of contract claim against Aarab directly. Smoke Tree, 230 Ariz. at 318. 7 IV. CONCLUSION 8 Accordingly, 9 IT IS ORDERED denying Defendants Geante Rouge, SARL’s and Youssef 10 Aarab’s Motion to Dismiss Plaintiff Ideasolv’s complaint for lack of personal jurisdiction. 11 (Doc. 13.) 12 IT IS FURTHER ORDERED granting Defendants Geante Rouge, SARL’s and 13 Youssef Aarab’s Motion to Dismiss Count Three (Common Law Fraud) claim, per the 14 parties’ stipulation. (Doc. 13; Doc. 16.) 15 16 IT IS FURTHER ORDERED denying Defendant Youssef Aarab’s Motion to Dismiss Count Two (Unjust Enrichment) for failure to state a claim. (Doc. 13.) 17 IT IS FINALLY ORDERED that the remaining claims are (1) breach of contract 18 against Geante; (2) unjust enrichment against Geante, Aarab, and Djuna; and (3) common 19 law fraud against Djuna. (Doc. 1-3.) 20 Dated this 1st day of August, 2022. 21 22 23 24 25 26 27 28 -8-
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