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Casun Invest, A.G. v. Ponder

United States District Court, D. Nevada

February 16, 2018

CASUN INVEST, A.G.,, Plaintiff(s),
MICHAEL H. PONDER, et al., Defendant(s).


         Presently before the court is third-party defendant Hans-Peter Wild's motion to dismiss third-party plaintiff Lezlie Gunn's third-party complaint. (ECF No. 20). Gunn filed a response (ECF No. 25), to which Wild replied (ECF No. 28).

         Also before the court is Gunn's first motion for leave to file supplemental evidence in support of her opposition to Wild's motion to dismiss. (ECF No. 57). Wild filed a response (ECF No. 61), to which Gunn replied (ECF No. 62).

         Also before the court is Gunn's second motion for leave to file supplemental evidence in support of her opposition to Wild's motion to dismiss. (ECF No. 64). Wild filed a response (ECF No. 65), to which Gunn replied (ECF No. 66).

         I. Background

         The underlying action in this case relates to a purported sale of real property. (ECF No. 1). The instant motions query whether a Nevada court can exercise personal jurisdiction over a third-party defendant when he executes an indemnification agreement with a Nevada resident who is later sued in Nevada.

         On April 22, 2015, Gunn and Wild entered into an indemnification agreement. (ECF No. 12). The indemnification agreement provides that Wild will indemnify and hold Gun harmless from certain claims, actions, suits, and/or legal proceedings.[1] (ECF No. 20-1). The agreement contains a choice-of-law provision indicating that it “shall be enforced in accordance with the laws of the State of Nevada . . . .” Id.

         Wild is a current resident of Switzerland and is the majority shareholder of Casun Invest, A.G. (ECF Nos. 12, 20-2, 25).

         On December 16, 2016, plaintiff Casun Invest, A.G. filed its complaint against Gunn, Michael Ponder, and NVWS Properties LLC. (ECF No. 1). On February 7, 2017, Gunn filed her response and third-party complaint. (ECF No. 12). Gunn's third-party complaint asserts a single cause of action: express indemnification against Wild. (ECF No. 12).

         On April 6, 2017, third-party defendant Wild filed a motion to dismiss the third-party complaint for lack of personal jurisdiction and forum non conveniens. (ECF No. 20).

         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. Forum non conveniens

         “The central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256 (1981). “A forum non conveniens determination is committed to the sound discretion of the district court.” Lueck v. Sundstrand Corp., 236 F.3d 1137 1143 (9th Cir. 2001) (quoting Gemini Capital Group, Inc. v. Yap Fishing Corp., 150 F.3d 1088, 1091 (9th Cir.1998)). Forum non conveniens is “an exceptional tool to be employed sparingly.” Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1224 (9th Cir.2011) (quoting Dole Food Co. v. Watts, 303 F.3d 1104, 1118 (9th Cir. 2002)).

         III. Discussion

         In Wild's motion to dismiss Gunn's third-party complaint, Wild argues that dismissal is appropriate pursuant to Federal Rule of Civil Procedure 12(b)(2) because the court lacks personal jurisdiction over the third-party complaint. (ECF No. 20). Wild argues in the alternative that the court should dismiss Gunn's claim under the doctrine of forum non conveniens. Id.

         a. Personal jurisdiction

         i. General jurisdiction

         As an initial matter, no general jurisdiction exists over Wild in Nevada. As Wild is a citizen of Switzerland, he is not “at home” in Nevada.[2] See Daimler, 134 S.Ct. at 760-61 (describing the general jurisdiction analysis for individuals).

         Gunn argues that Wild is “at home” in Nevada because of his semi-frequent travels, membership to a golf club, and business dealings through, amongst other companies, Wild Affiliated Holdings, Inc. (“WAH”), which is incorporated in Nevada. (ECF No. 25 at 14-15). However, Wild's visits and membership to a golf club are neither systematic nor continuous enough to establish him as “at home” in Nevada. See Tuazon, 433 F.3d at 1171 (requiring systematic and continuous ties with the forum for general personal jurisdiction to exist).

         Further, the fact that WAH is incorporated in Nevada is similarly insignificant. Gunn argues that because WAH was incorporated in Nevada and because Wild “routinely conducted business for [WAH] in Las Vegas, ” that general jurisdiction exists. (ECF No. 25 at 14). Wild conducting business in Nevada on behalf of WAH does not establish him as “at home.” See Daimler, 134 S.Ct. at 761.

         Gunn also contends that Wild should be considered an automatic resident of the United States for taxation purposes based on the amount of time Wild spent in the United States in years prior to 2014. (ECF No. 25 at 15). This has no bearing on whether Wild should be subject to general jurisdiction in Nevada. See Daimer, 134 S.Ct. at 761.

         Finally, Gunn contends that Wild maintained a Nevada-based cell phone for twelve years as well as bank accounts in Nevada for his Nevada companies. (ECF No. 25 at 15). Even when aggregated together with all of Gunn's other allegations, these alleged facts do not demonstrate that Wild is essentially at home in Nevada. Therefore, the court cannot exercise general jurisdiction over Wild in Nevada. See Daimler, 134 S.Ct. at 761.

         ii. Specific jurisdiction

         Accordingly, to withstand dismissal under rule 12(b)(2), Gunn must demonstrate that her allegations establish a prima facie case for specific jurisdiction. See Boschetto, 539 F.3d at 1015. In other words, Gunn must satisfy the first two prongs of the test for specific jurisdiction. See Schwarzenegger, 374 F.3d at 802.

         A. ...

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