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Ponder v. Wild

United States District Court, D. Nevada

September 30, 2019

MICHAEL PONDER, Plaintiff
v.
HANS-PETER WILD, Defendant

          ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND FORUM NON CONVENIENS [ECF NO. 20]

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE

         Plaintiff Michael Ponder sues defendant Hans-Peter Wild for several claims arising out of Ponder's tenure as Wild's employee. Ponder previously sued Wild in this court, but Judge Mahan dismissed Ponder's first complaint for lack of personal jurisdiction and later denied him leave to file an amended complaint. Wild now moves to dismiss Ponder's newest complaint for lack of personal jurisdiction and forum non conveniens. Wild does not have sufficient contacts with Nevada that give rise to Ponder's claims. Therefore, I cannot exercise jurisdiction over Wild and I must grant the motion to dismiss for lack of personal jurisdiction.

         I. BACKGROUND[1]

         Ponder joined one of Wild's businesses, Wild Flavors, Inc. (WFI), in 1998. ECF No. 1 at 2. In 2010, he became Global CEO of WILD Flavors GmbH (WILD), a Swiss company. Id. at 3. During a dinner at Wild's house in Zug, Switzerland, Wild promised Ponder that if he successfully sold WILD, Wild would personally pay Ponder $3 million in addition to whatever compensation he received from WILD. Id. at 4. Ponder successfully sold the company, but Wild rescinded his promise at another dinner in Zug and refused to pay Ponder the $3 million. Id. at 8. At other times, Wild also failed to compensate Ponder for guidance on relations with the German government; security services in the Middle East, India, and Asia; and services rendered to Wild's Europe-based machinery and Capri Sun beverage businesses. Id. at 5-9.

         After their relationship deteriorated, Ponder and Wild engaged in a contentious email exchange regarding, among many other things, Ponder's uncompensated activities. Id. at 10; ECF No. 1-1. Ponder alleges that Wild copied other individuals, including the CEO of the United State Marine Corp Scholarship Fund, other WILD executives, and business associate Susan Ricci, to harm and embarrass to Ponder. ECF No. 1 at 10. However, the exchange indicates that Ricci initiated it and included many of the WILD executives in her initial message. ECF No. 1-1.

         Ponder has lived in Nevada since 2006. ECF No. 1 at 3. Wild resides in Zug, Switzerland. Id. at 2, 4. Wild frequently traveled to the United States. Id. at 3. Ponder points to Wild's personal relationship with a Nevada-licensed attorney and membership at the Southern Highlands Golf Club as evidence of Wild's strong connection to Nevada. ECF Nos. 26 at 5; 26-1; 26-4. Wild also owned three companies incorporated in Nevada, but he states in his declaration that Ponder caused the incorporation of these entities in Nevada and that Wild does not recall taking any actions as an officer of these companies. Id. at 4; ECF No. 32-2.

         Ponder first filed suit in October 2016, asserting seven causes of action. Ponder v. Wild, 16-cv-02305-JCM-PAL (D. Nev. 2016), ECF No. 1. Judge Mahan dismissed that complaint for lack of personal jurisdiction. Ponder v. Wild, No. 2:16-CV-2305-JCM-PAL, 2017 WL 1536165 (D. Nev. Apr. 26, 2017). Ponder then moved for leave to amend, but Judge Mahan denied the motion because his proposed amended complaint failed to state a claim for defamation and failed to adequately plead personal jurisdiction. Ponder v. Wild, No. 2:16-CV-2305-JCM-PAL, 2018 WL 473003 (D. Nev. Jan. 18, 2018). Ponder then filed this suit in October 2018, asserting causes of action for breach of contract, breach of the covenant of good faith and fair dealing, unjust enrichment, fraudulent misrepresentation, conversion, defamation, and punitive damages. ECF No. 1. Wild now moves to dismiss for lack of personal jurisdiction. ECF No. 20.

         II. ANALYSIS

         When a defendant moves to dismiss for lack of personal jurisdiction on the basis of written materials rather than an evidentiary hearing, I must determine whether plaintiff's “pleadings and affidavits make a prima facie showing of personal jurisdiction.” Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004) (quotation omitted). In deciding whether a plaintiff has met his burden, I must accept as true the uncontroverted allegations in his complaint, but a plaintiff cannot rest on the “bare allegations” of his complaint. Id. (quotation omitted). Conflicts between parties over statements contained in affidavits must be resolved in the plaintiff's favor. Id.

         “When no federal statute governs personal jurisdiction, the district court applies the law of the forum state.” Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008). Ponder argues that because I must apply the law of the forum state, I should look to language in decisions of the Supreme Court of Nevada that he claims is more permissive than the federal standard after Walden v. Fiore, 571 U.S. 277 (2014). ECF No. 26 at 11-15. But the United States Supreme Court applied Nevada law in Walden. 571 U.S. at 283. Because “Nevada's jurisdictional statute allows for personal jurisdiction ‘over a party to a civil action on any basis not inconsistent with the Constitution of this state or the Constitution of the United States[, ]' Nev. Rev. Stat. § 14.065, [I] apply the federal standard for personal jurisdiction.” Gunn v. Wild, 771 Fed.Appx. 392, 392 (9th Cir. 2019) (citing Walden, 571 U.S. at 283).

         Under the federal standard, “[f]or a court to exercise personal jurisdiction over a nonresident defendant, that defendant must have at least minimum contacts with the relevant forum such that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.” Schwarzenegger, 374 F.3d, at 801. “There are two forms of personal jurisdiction that a forum state may exercise over a nonresident defendant-general jurisdiction and specific jurisdiction.” Boschetto, 539 F.3d at 1016.

         A. General Jurisdiction

         “A court may assert general jurisdiction over [a defendant] when [his] affiliations with the State are so ‘continuous and systematic' as to render [him] essentially at home in the forum State.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). “For an individual, the paradigm forum for the exercise of general jurisdiction is the individual's domicile . . . .” Daimler AG v. Bauman, 571 U.S. 117, 137 (2014).

         Ponder argues that Wild's domicile is an “issue of fact” and that Wild's substantial contacts with Nevada render him at home here. ECF No. 26 at 8-11. But Ponder concedes in his complaint that Wild resides in Switzerland. ECF No. 1 at 2. Wild's alleged contacts with Nevada include his decision to file a lawsuit in Nevada, his membership at the Southern Highlands Golf Club, and his personal relationship with a Nevada-licensed attorney. ECF Nos. 26 at 9; 26-4. These contacts do not “render [Wild] essentially at home” in Nevada. If they did, they would also render him at home in multiple other jurisdictions because Wild's girlfriend is also licensed in California and Wild has been a member of at least eight golf clubs in seven states and countries. ECF Nos. 26-4; 32-2. I cannot exercise general jurisdiction over Wild. Indeed, the Ninth Circuit affirmed Judge Mahan's decision that he could not exercise general jurisdiction ...


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