United States District Court, D. Nevada
LEZLIE J. GUNN, Plaintiff(s),
HANS-PETER WILD, Defendant(s).
before the court is defendant Hand-Peter Wild's motion to
dismiss plaintiff's original complaint. (ECF No. 7).
Plaintiff Lezlie Gunn did not file a response, and the time
to do so has since passed.
before the court is defendant's motion to dismiss
plaintiff's amended complaint. (ECF No. 13). Plaintiff
filed a response (ECF No. 14), to which defendant replied
(ECF No. 17).
before the court is plaintiff's motion for leave to file
a second amended complaint. (ECF No. 32). Defendant filed a
response (ECF No. 33), to which plaintiff replied (ECF No.
before the court is plaintiff's motion to file a
supplement to her response to defendant's motion to
dismiss. (ECF No. 37). Defendant filed a response (ECF No.
39), to which plaintiff replied (ECF No. 40).
before the court is plaintiff's motion for leave to file
supplemental evidence is support of plaintiff's
opposition to defendant's motion to dismiss. (ECF No.
42). Defendant filed a response (ECF No. 44), to which
plaintiff replied (ECF No. 45). . . .
action arises from the alleged breach of a Release and
Settlement Agreement (“RSA”), as well as
allegations that defendant is liable to plaintiff based on
multiple tort-based claims. (ECF No. 11).
is a former citizen and resident of Germany, and is a current
citizen and resident of Switzerland. (ECF No. 11 at 2).
Plaintiff had a “personal and professional
relationship” with the defendant for over thirty years.
Id. at 2-3. On December 21, 2015, plaintiff and
defendant entered into a RSA to “resolve the
parties' rights and obligations related to other
previously established claims, contracts, obligations[, ] and
long-standing agreements.” Id. at 3. The RSA
does not contain a forum selection clause. (ECF No. 14-8).
The RSA does contain a choice-of-law provision indicating
that “[t]he Agreement shall be enforced in accordance
with the laws of the State of Nevada . . . .”
fulfilled part of the RSA when he wired $60 million dollars
to plaintiff. (ECF No. 11 at 3). Plaintiff allegedly
continued to fulfill her duties under the RSA while defendant
purportedly failed to complete his terms of the contract.
Id. at 4. Specifically, plaintiff alleges, inter
alia, the following five breaches of the RSA: (1)
“[defendant] failed to pay all of the agreed-upon
expenses”; (2) “[defendant] ceased paying for
plaintiff's medical insurance”; (3) defendant
failed to pay $20 million dollars towards an education fund;
(4) defendant failed to pay plaintiff's yearly gift
amount; and (5) defendant “failed and refused to
provide various items throughout the year to emergency
service departments.” Id. In June 2016,
defendant allegedly acknowledged his breaches to the
plaintiff in front of his German lawyer while sailing on a
yacht in an unidentified location, and defendant promised to
immediately cure the breaches. Id. at 5. However,
plaintiff alleges that he has not cured the breaches.
in April 2016, and continuing for several months, defendant
attempted to have plaintiff sign a power of attorney.
Id. The document was written in German and, despite
plaintiff's requests, defendant provided nothing more
than a verbal translation. Id. at 6. Plaintiff did
not sign the document. Id. At one point, defendant
allegedly trapped plaintiff in his kitchen, demanded she sign
the document, and then “attacked plaintiff in an
attempt to end her life” when she refused to sign the
document. Id. at 6-7.
the alleged attempt on plaintiff's life, defendant has
purportedly taken several steps to have plaintiff sign the
power of attorney and has “done nothing but terrorize
plaintiff.” Id. at 9-10. Defendant allegedly
sent “extremely disparaging and vicious emails about
plaintiff to her brothers” and to “hundreds of
[plaintiff's] friends and coworkers.” Id.
at 11. Defendant has also allegedly “made non-stop
false, vicious[, ] and defamatory statements about plaintiff
to countless people.” Id. In October 2016,
defendant informed plaintiff that he “was revoking the
RSA.” Id. at 7.
term of the RSA required defendant to return plaintiff's
belongings to her upon plaintiff's request. Id.
at 12. The belongings are allegedly valued at more than $10.4
million dollars. Id. Despite plaintiff's
repeated requests for the return of her belongings, she
“has no idea where the container is that holds her
belongings.” Id. Plaintiff alleges that
defendant intimidated and coerced his employees to not comply
with plaintiff's “reasonable” requests to
return her property. Id.
plaintiff alleges that defendant is a holdover tenant on
plaintiff's properties. (ECF No 11 at 13). Despite
plaintiff's numerous requests, defendant allegedly
“continues to occupy Plaintiff's properties without
payment.” Id. Defendant allegedly paid
plaintiff in the past for occupancy. Id.
January 7, 2017, plaintiff filed her initial complaint (ECF
No. 1). On March 3, 2017, defendant filed a motion to dismiss
for lack of personal jurisdiction and forum non
conveniens (ECF No. 7). Plaintiff then amended her
complaint on March 14, 2017. (ECF No. 11).
amended complaint states the following eight causes of
action: (1) breach of contract; (2) breach of implied
covenant of good faith and fair dealing; (3) unjust
enrichment; (4) fraudulent or intentional misrepresentation;
(5) conversion; (6) defamation; (7) unreasonable publicity
given to private facts; and (8) punitive damages under NRS
42.005. (ECF No. 11).
March 28, 2017, defendant filed a motion to dismiss the
amended complaint for lack of personal jurisdiction and
forum non conveniens. (ECF No. 13).
Rule of Civil Procedure 12(b)(2) allows a defendant to move
to dismiss a complaint for lack of personal jurisdiction.
See Fed. R. Civ. P. 12(b)(2). To avoid dismissal
under Rule 12(b)(2), a plaintiff bears the burden of
demonstrating that its allegations establish a prima facie
case for personal jurisdiction. See Boschetto v.
Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008).
Allegations in the complaint must be taken as true and
factual disputes should be construed in the plaintiff's
favor. Rio Props., Inc. v. Rio Int'l Interlink,
284 F.3d 1007, 1019 (9th Cir. 2002).
no federal statute governs personal jurisdiction, the
district court applies the law of the forum state.”
Boschetto, 539 F.3d at 1015; see also Panavision
Int'l L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir.
1998). Where a state has a “long-arm” statute
providing its courts jurisdiction to the fullest extent
permitted by the due process clause, as Nevada does, a court
need only address federal due process standards. See
Arbella Mut. Ins. Co. v. Eighth Judicial Dist. Court,
134 P.3d 710, 712 (Nev. 2006) (citing Nev. Rev. Stat. §
14.065); see also Boschetto, 539 F.3d at 1015.
assertion of personal jurisdiction must comport with due
process. See Wash. Shoe Co. v. A-Z Sporting Goods
Inc., 704 F.3d 668, 672 (9th Cir. 2012). Two categories
of personal jurisdiction exist: (1) general jurisdiction; and
(2) specific jurisdiction. See Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 413-15 (1984);
see also LSI Indus., Inc. v. Hubbell Lighting, Inc.,
232 F.3d 1369, 1375 (Fed. Cir. 2000).
jurisdiction arises where a defendant has continuous and
systematic ties with the forum, even if those ties are
unrelated to the litigation. See Tuazon v. R.J. Reynolds
Tobacco Co., 433 F.3d 1163, 1171 (9th Cir. 2006) (citing
Helicopteros Nacionales de Columbia, S.A., 466 U.S.
at 414-16). “[T]he plaintiff must demonstrate the
defendant has sufficient contacts to constitute the kind of
continuous and systematic general business contacts that
approximate physical presence.” In re W. States
Wholesale Nat. Gas Litig., 605 F.Supp.2d 1118, 1131 (D.
Nev. 2009) (internal quotation marks and citations omitted).
In other words, defendant's affiliations with the forum
state must be so “continuous and systematic” as
to render it essentially “at home” in that forum.
See Daimler AG v. Bauman, 134 S.Ct. 746, 760-61
jurisdiction arises where sufficient contacts with the forum
state exist such that the assertion of personal jurisdiction
“does not offend ‘traditional notions of fair
play and substantial justice.'” Int'l Shoe
Co., 326 U.S. at 316 (quoting Milliken v.
Meyer, 311 U.S. 457, 463 (1940)). The Ninth Circuit has
established a three-prong test for analyzing an assertion of
specific personal jurisdiction:
(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
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d
797, 802 (9th Cir. 2004). “The plaintiff bears the
burden of satisfying the first two prongs of the test. If the
plaintiff fails to satisfy either of these prongs, personal
jurisdiction is not established in the forum state.”
Id. (citations omitted).