United States District Court, D. Nevada
C. MAHAN UNITED STATES DISTRICT JUDGE.
before the court is plaintiff Nevada Corporate Headquarters,
Inc.'s (“NCH”) motion to remand. (ECF No.
15). Defendants Northern Mechanical Contractors, Inc.
(“Northern”) and Science Center Drive, LLC
(“Science Center”) filed a response. (ECF No.
17). Defendants Matthew R. Tieva and Jesssie C. Tieva
(collectively “the Tievas”) also filed a
response. (ECF No. 18). NCH did not file any replies and the
time to do so has passed.
before the court is Northern and Science Center's motion
to dismiss. (ECF No. 7). NCH filed a response (ECF No. 14),
to which Northern and Science Center replied (ECF No. 16).
action arises from a contract dispute between NCH and
defendant Sellers Playbook Inc. (“Sellers
Playbook”). (ECF No. 1). The complaint contains the
February 13, 2017, the Tievas incorporated Sellers Playbook
in Minnesota, which is a company that teaches individuals how
to sell goods through online platforms. Id. Sellers
Playbook had a working relationship with NCH where it would
refer its customers to NCH for compensation. Id. The
parties do not disclose the nature of the services that NCH
would provide to Sellers Playbook's referrals. See
2017, the Federal Trade Commission (“FTC”) began
investigating Sellers Playbook for being an enterprise
engaging in deceptive acts. Id. Although the full
extent of the FTC's investigation is unclear at this
time, the Tievas and Sellers Playbook received communications
indicating that government agencies were looking into Sellers
Playbook's business practices. Id. Specifically,
in February 2018, the advertising review manager for the
Better Business Bureau of Minnesota and North Dakota
exchanged emails with Mr. Tieva regarding Sellers
Playbook's business activities. Id. The
Minnesota Attorney's General Office also informed the
Tievas that they were under investigation. Id.
April 2018, the Tievas approached NCH to arrange an agreement
where NCH would pay an advance for referrals at a discount
rate. Id. The Tievas represented that they were
financially sound and needed additional resources to expand
the operations of the business including Sellers Playbook and
defendant Exposure Marketing Company doing business as
Sellers Online and Sellers Systems. Id. At no point
during the negotiation did the Tievas disclose that the FTC
was investigating Sellers Playbook. Id.
April 24, 2018, the parties entered into a written agreement
(“Lead Agreement”) based upon the Tievas'
false statements and material omissions about their business
operation and the pending investigation. Id. The
contract provides that NCH pay a $1, 000, 000.00 advance in
exchange for customer referrals at a discount rate until the
advance is completely satisfied. Id. The parties
agreed that the Tievas would use the funds to expand Sellers
Playbook and would repay the advance within twenty-four
Tievas diverted the funds to other entities such as Northern
or Science Center, which have the same address, phone number,
facsimile number, and employees as Sellers Playbook and
Exposure Marketing Company. Id. On June 30, 2018,
the FTC and/or the Minnesota Attorney General's Office
shut down Sellers Playbook, seized its assets, and initiated
a suit against the Tievas, Sellers Playbook, and Exposure
Marketing Company. Id. Thereafter, the Tievas ceased
referring customers to NCH. Id.
August 16, 2018, NCH initiated this lawsuit in the Eighth
Judicial District Court of Nevada. (ECF No. 1). The complaint
asserts seven causes of action: (1) declaratory relief; (2)
breach of contract; (3) fraud in the inducement; (4)
injunctive relief; (5) “corporate theft;” (6)
“Fraud: Intentional Misrepresentation;” (7) civil
conspiracy; (8) alter ego; (9) unjust enrichment; (10) breach
of the implied covenant of good faith and fair dealing; (11)
“Fraud: Promise Without the Intent to Perform;”
(12) negligence; and (13) punitive damages. Id. On
September 21, 2018, defendants removed this action to federal
NCH moves to remand. (ECF No. 15). Northern and Science
Center also move to dismiss the complaint pursuant to Federal
Rules of Civil Procedure 12(b)(2) and 12(b)(6). (ECF No. 7).
courts are courts of limited jurisdiction. Owen Equip.
& Erection Co. v. Kroger, 437 U.S. 365, 374 (1978).
“A federal court is presumed to lack jurisdiction in a
particular case unless the contrary affirmatively
appears.” Stock West, Inc. v. Confederated Tribes
of Colville Reservation, 873 F.2d 1221, 1225 (9th Cir.
notice of removability, a defendant has thirty days to remove
a case to federal court once he knows or should have known
that the case was removable. Durham v. Lockheed Martin
Corp., 445 F.3d 1247, 1250 (9th Cir. 2006) (citing 28
U.S.C. § 1446(b)(2)). Defendants are not charged with
notice of removability “until they've received a
paper that gives them enough information to remove.”
Id. at 1251.
“the ‘thirty day time period [for removal] . . .
starts to run from defendant's receipt of the initial
pleading only when that pleading affirmatively reveals on its
face' the facts necessary for federal court
jurisdiction.” Id. at 1250 (quoting Harris
v. Bankers Life & Casualty Co., 425 F.3d 689, 690-91
(9th Cir. 2005) (alterations in original)). “Otherwise,
the thirty-day clock doesn't begin ticking until a
defendant receives ‘a copy of an amended pleading,
motion, order or other paper' from which it can determine
that the case is removable. Id. (quoting 28 U.S.C.
plaintiff may challenge removal by timely filing a motion to
remand. 28 U.S.C. § 1447(c). On a motion to remand, the
removing defendant faces a strong presumption against
removal, and bears the burden of establishing that removal is
proper. Sanchez v. Monumental Life Ins. Co., 102
F.3d 398, 403-04 (9th Cir. 1996); Gaus v. Miles,
Inc., 980 F.2d 564, 566-67 (9th Cir. 1992).
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, 571 U.S. 117, 137 (2014).
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 ...