United States District Court, D. Nevada
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).
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).
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).
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.
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. (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.
a current resident of Switzerland and is the majority
shareholder of Casun Invest, A.G. (ECF Nos. 12, 20-2, 25).
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).
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).
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).
Forum non conveniens
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)).
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.
initial matter, no general jurisdiction exists over Wild in
Nevada. As Wild is a citizen of Switzerland, he is not
“at home” in Nevada. See Daimler, 134
S.Ct. at 760-61 (describing the general jurisdiction analysis
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).
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
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.
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.
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.