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Gunn v. Wild

United States District Court, D. Nevada

January 18, 2018

LEZLIE J. GUNN, Plaintiff(s),
v.
HANS-PETER WILD, Defendant(s).

          ORDER

         Presently 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.

         Also 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).

         Also 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. 36).

         Also 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).

         Also 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). . . .

         I. Background

         This 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).

         Defendant 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.[1] (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 . . . .” Id.

         Defendant 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. Id.

         Beginning 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.

         Since 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.

         Another 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.

         Furthermore, 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.

         On 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).

         Plaintiff's 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).

         On March 28, 2017, defendant filed a motion to dismiss the amended complaint for lack of personal jurisdiction and forum non conveniens. (ECF No. 13).

         II. Legal Standard

         a. Personal jurisdiction

         Federal 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).

         “When 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.

         An 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).

         General 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 (2014).

         Specific 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 reasonable.

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).

         b. ...


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