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Albertazzi v. Albertazzi

United States District Court, D. Nevada

January 17, 2018

ROBERT ALBERTAZZI AND NOELLA ALBERTAZZI, AS TRUSTEES OF THE ALBERTAZZI FAMILY TRUST, Plaintiff,
v.
TERI A. ALBERTAZZI; JOHN D. GRIESINGER; and DOES I-X, inclusive, Defendants.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.

         I. SUMMARY

         Before the Court is Defendants Teri A. Albertazzi and John D. Griesinger's (“Defendants”) Motion to Dismiss (“Motion”). (ECF No. 4.) The Court has reviewed Plaintiffs Robert Albertazzi and Noella Albertazzi's amended response.[1] (ECF No. 10.) For the following reasons, the Court denies Defendants' Motion.

         II. BACKGROUND

         Plaintiffs Robert and Noella Albertazzi transferred $220, 000 to their daughter, Defendant Teri Albertazzi, in the summer of 2009, and the parties now dispute whether the money was a loan or a gift. According to Plaintiffs, the money was a loan. Defendant Teri[2] allegedly asked to borrow money to purchase a home in Tucson, Arizona (“Arizona Property”) on June 21, 2009. (ECF No. 10 at 2.) Plaintiffs then transferred a total of $220, 000 to her from the Albertazzi Family Trust (“Trust”), of which Plaintiffs are both trustees. (Id. at 3.) Plaintiffs allege that “Defendant Teri agreed to repay Plaintiffs [the $220, 000] and agreed that the Arizona Property was Plaintiffs' security for the loan.” (Id.)

         According to Defendant Teri, the money was a gift. Plaintiff Robert “delivered into the Tucson, Arizona escrow a written statement saying that all monies he provided towards the home purchase were a gift and that there was no expectation of repayment.” (ECF No. 4 at 3.) Defendant Teri alleges that Plaintiff Robert “did not request, and did not receive, either a promissory note or security interest in the [Arizona Property].” (Id.)

         Defendant Teri began to send $400 monthly payments to Plaintiff Robert in September 2009 and increased the monthly payments to $500 in September 2010. (ECF No. 10 at 3.) The parties dispute the reason for Defendant Teri's conduct. According to Plaintiffs, Defendant Teri began making payments because she had promised to repay the loan. (See id.) According to Defendant Teri, she began sending money to her father because he called to “tell her that he was experiencing financial difficulties” and “requested that she send him money in whatever amounts and at whatever intervals she was willing.” (ECF No. 4 at 3.)

         Defendant Teri allegedly executed a promissory note (“Note”) several years later, on February 6, 2014, formally obligating her to repay the then-principal of $201, 200. (Id.) Plaintiffs attached the Note to their complaint, and it appears to bear a signature reading “Teri Albertazzi.” (ECF No. 1-3 at 13.) The Note contains two clauses that are important to this dispute. The first is an acceleration clause: “This Note will be repaid in consecutive monthly installments of $500.00 each on the fifth of each month commencing the month following execution of this Note until the Lender has provided the Borrower with written notice of demand and the balance owing under this Note will be paid within 30 day(s) of any such notice of demand.” (Id.) The second is a choice of law clause: “This Note will be construed in accordance with and governed by the laws of the State of Nevada.” (Id. at 14.)

         Defendant Teri's husband, [3] Defendant John, allegedly executed an addendum to the Note (“Addendum”) obligating him to pay the debt in the event of Defendant Teri's death. (ECF No. 10 at 4.) Plaintiffs attached the Addendum to their complaint, and it appears to bear a signature reading “John Griesinger.” (ECF No. 1-3 at 15.)

         Defendants dispute the authenticity of the Note and Addendum, contending that they did not sign these documents. (ECF No. 4 at 3.) They have provided affidavits in support. (ECF Nos. 4-1, 4-2.)

         Defendants allegedly sold the Arizona Property in June 2016 and used the proceeds from the sale to purchase a house in Boise, Idaho (“Idaho Property”). (ECF No. 10 at 4.) Defendants allegedly did not inform Plaintiffs about the sale until January 31, 2017. (Id.) Plaintiffs then sent Defendants a revised promissory note with Defendant's Idaho Property listed as security for the balance of the loan. (Id. at 4-5.) Defendants allegedly refused to execute the revised promissory note. (Id. at 5.) Plaintiffs then issued Defendants a written demand for payment in full pursuant to the Note's acceleration clause. (Id.) Defendants allegedly breached the terms of the Note by failing to pay the Note in full. (Id.)

         Plaintiffs filed this action in Nevada state court alleging claims for breach of contract, money had and received, unjust enrichment, and fraudulent concealment on November 14, 2017. (ECF No. 1-3 at 3-11.) Defendants removed based on diversity jurisdiction. (ECF No. 1.) Defendants now move to dismiss the action for lack of personal jurisdiction, or in the alternative to transfer venue. (ECF No. 4 at 1.)

         III. LEGAL STANDARD

         In opposing a defendant's motion to dismiss for lack of personal jurisdiction, a plaintiff bears the burden of establishing that jurisdiction is proper. Boschetto v. Hansin,539 F.3d 1011, 1015 (9th Cir. 2008). Where, as here, the motion is based on written materials rather than an evidentiary hearing, “the plaintiff need only make a prima facie showing of jurisdictional facts to withstand the motion to dismiss.” Brayton Purcell LLP v. Recordon & Recordon,606 F.3d 1124, 1127 (9th Cir. 2010) (internal quotation marks omitted). The plaintiff cannot “simply rest on the bare allegations of its complaint, ” but uncontroverted allegations in the complaint must be taken as true. Schwarzenegger v. Fred Martin Motor Co.,374 F.3d 797, 800 (9th Cir. 2004) (quoting Amba Mktg. Sys., Inc. v. Jobar Int'l, Inc.,551 F.2d 784, 787 (9th Cir. 1977)). The court “may not assume the truth of allegations in a pleading which ...


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