Alcom 3PL, Inc. v. Sun Group Partners LLC et al

Filing 32

ORDER RE MOTION TO DISMISS by Judge Ronald S.W. Lew: Plaintiff has not sufficiently alleged that the Court has personal jurisdiction over the Individual Defendants. The Court GRANTS Defendant's Motion to Dismiss 23 with leave to amend. (gk)

'O'

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16
17
18
19
20

CV 20-02523-RSWL-PVCx

ALCON 3PL, INC. a
California corporation,

ORDER re: MOTION TO
DISMISS [23]

Plaintiff,
v.
SUN GROUP PARTNERS LLC, a
California limited
liability company; GLENN
SANDS, an individual;
BRENT SANDS, an
individual; DOES 1 THROUGH
10, INCLUSIVE
Defendants.

21
22
23

Plaintiff Alcon 3PL, Inc. (“Plaintiff”) brought the

24

instant Action against Defendants Sun Group Partners,

25

LLC (“Defendant Sun Group”), Glenn Sands, and Brent

26

Sands (“Individual Defendants”), alleging breach of

27

contract, open book account, account stated, and quantum

28

meruit.

Currently before the Court is Defendants’
1

1

Motion to Dismiss for Lack of Personal Jurisdiction

2

[23]. 1

3

Having reviewed all papers submitted pertaining to

4

this Motion, the Court NOW FINDS AND RULES AS FOLLOWS:

5

the Court GRANTS Defendants’ Motion to Dismiss.
I.

6

BACKGROUND

7

A.

8

Plaintiff alleges the following in its Complaint:

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Factual & Procedural Background
Plaintiff is a corporation with its principal place

of business in Los Angeles, California.

Compl. ¶ 2, ECF

Local Rule 7-3 provides that “counsel contemplating the
filing of any motion shall first contact opposing counsel to
discuss thoroughly, preferably in person, the substance of the
contemplated motion and any potential resolution. The conference
shall take place at least seven (7) days prior to the filing of
the motion.” C.D. Cal. Local Civ. R. 7-3. “Failure to comply
with the Local Rules does not automatically require the denial of
a party’s motion, however, particularly where the non-moving
party has suffered no apparent prejudice as a result of the
failure to comply.” CarMax Auto Superstores Cal. LLC v.
Hernandez, 94 F. Supp. 3d 1078, 1088 (C.D. Cal. 2015); see also
ECASH Techs., Inc. v. Guagliardo, 35 F. App’x 498, 500 (9th Cir.
2002) (“The Central District of California’s local rules do not
require dismissal of appellee’s motions for failure to satisfy
the meet-and-confer requirements.”). Here, the parties are in
violation of Local Rule 7-3 because there is no indication the
parties met and conferred. Nevertheless, Plaintiff does not seem
to have been prejudiced by the violation because, although it did
not file an opposition, it did file a stipulation to continue the
hearing date for this Motion, showing that Plaintiff was aware of
the Motion and its opportunity to oppose. See generally Pl.’s
Stipulation to Continue Hr’g Date on Defs.’ Mot. to Dismiss, ECF
No. 27. Moreover, Plaintiff had sufficient time to oppose since
the Court granted Plaintiff’s stipulation. See generally Order
Granting Pl.’s Stipulation to Continue Hr’g Date on Defs.’ Mot.
to Dismiss, ECF No. 28. Thus, the Court should exercise its
discretion to consider the Motion’s merits. See CarMax Auto
Superstores Cal. LLC, 94 F. Supp. 3d at 1088 (electing to
consider a motion’s merits despite a violation of Local Rule 73).
1

2

1

No. 1.

Defendant Sun Group is a limited liability

2

company with its principal place of business in Palm

3

Beach Gardens, Florida.

4

are citizens of Florida.

Id. ¶ 3.

Individual Defendants

Id.

Individual Defendants are “members and/or managers,

5
6

and/or officers[,] and/or directors” of Defendant Sun

7

Group.

8

relevant times was, a mere shell, instrumentality, and

9

conduit through which Individual Defendants carried on

Moreover, “[Defendant] Sun Group is, and at all

10

business in the name of [Defendant] Sun Group.”

Id.

11

¶ 12.

12

dominated, and operated [Defendant] Sun Group in that

13

the activities and business of [Defendant] Sun Group

14

were carried out without holding annual meetings, and

15

without keeping records or minutes of any proceedings,

16

or maintaining written resolutions.”

17

Defendant Sun Group is the alter ego of the Individual

18

Defendants, and the Individual Defendants cannot use

19

their company to shield themselves from personal

20

liability.

Specifically, Individual Defendants “controlled,

Id.

Therefore,

Id. at ¶¶ 12-13.

In or about late 2020 and early 2021, Plaintiff

21
22

entered into an agreement with Defendant Sun Group

23

through the Individual Defendants for warehouse personal

24

protective equipment.

25

2021, however, Defendants stopped paying the monthly

26

sum.

27

25, 2022, Defendants failed to make any payments for

28

business transactions conducted between Defendants and

Id. ¶ 15.

Id. ¶ 14.

On or about May 4,

In addition, from May 4, 2021, to March

3

1

Plaintiff.

Id.

Plaintiff filed its Complaint [1] on April 14,

2
3

2022.

Defendant filed the instant Motion [23] on

4

September 1, 2022.
II.

5
6
7

A.

DISCUSSION

Legal Standard
Federal Rule of Civil Procedure 12(b)(2) authorizes

8

dismissal of an action for lack of personal

9

jurisdiction.

Fed. R. Civ. P. 12(b)(2).

Once a

10

defendant moves to dismiss for lack of personal

11

jurisdiction, the plaintiff bears the burden of

12

demonstrating that jurisdiction is appropriate.

13

Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797,

14

800 (9th Cir. 2004).

15

Where the motion is “based on written materials

16

rather than an evidentiary hearing, the plaintiff need

17

only make a prima facie showing of jurisdictional facts”

18

to survive dismissal.

19

omitted).

20

“only inquire[s] into whether [the plaintiff’s]

21

pleadings ands affidavits make a prima facie showing of

22

personal jurisdiction.”

23

Psychoanalytical Ass’n, 59 F.3d 126, 127-28 (9th Cir.

24

1995); Boschetto v. Hansing, 539 F.3d 1011 (9th Cir.

25

2008).

26

must allege facts that, if true, would support a finding

27

of jurisdiction.

Ballard v. Savage, 65 F.3d 1495, 1498

28

(9th Cir. 1995).

Although the plaintiff cannot rely on

Id. (internal quotation marks

Absent an evidentiary hearing this court

Caruth v. Int’l

To make a prima facie showing, the plaintiff

4

1

the bare allegations of the complaint, uncontroverted

2

allegations in the complaint must be taken as true and

3

conflicts between statements contained in the parties’

4

affidavits must be resolved in the plaintiff’s favor.

5

Schwarzenegger, 374 F.3d at 800.

6

B.

Discussion

7

1.

Personal Jurisdiction

8

Whether a federal court can exercise personal

9

jurisdiction over a non-resident defendant turns on two

10

independent considerations: whether an applicable state

11

rule or statute permits service of process on the

12

defendant, and whether the assertion of personal

13

jurisdiction comports with constitutional due process

14

principles.

15

Express, 758 F.2d 1325, 1327 (9th Cir. 1985).

16

courts in California may exercise specific personal

17

jurisdiction over a nonresident defendant to the extent

18

permitted by the Due Process Clause of the United States

19

Constitution.

20

Process Clause permits courts to exercise personal

21

jurisdiction over any defendant who has sufficient

22

“minimum contacts” with the forum state such that the

23

“maintenance of the suit [would] not offend traditional

24

notions of fair play and substantial justice.” Int’l

25

Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

26

See Pac. Atl. Trading Co. v. M/V Main

Cal. Civ. Prov. Code § 410.10.

District

The Due

There are two recognized bases for personal

27
28
5

1

jurisdiction over non-resident 2 defendants: (1) “general

2

jurisdiction,” which arises where the defendant's

3

activities in the forum state are sufficiently

4

“substantial” or “continuous and systematic” to justify

5

the exercise of jurisdiction over him in all matters;

6

and (2) “specific jurisdiction,” which arises when a

7

defendant’s specific contacts with the forum have given

8

rise to the claim in question.

9

Nacionales de Columbia S.A. v. Hall, 466 U.S. 408, 414–

See Helicopteros

10

16 (1984); Doe v. Am. Nat’l Red Cross, 112 F.3d 1048,

11

1050–51 (9th Cir. 1997).

12

a plaintiff must show the court has personal

13

jurisdiction over the defendants.

14

374 F.3d at 800.

15

To survive a 12(b)(2) motion,
See Schwarzenegger,

Plaintiff has not satisfied its burden to show that

16

the Court has personal jurisdiction over Individual

17

Defendants.

18

three Defendants 3 are citizens of Florida and entered

19

into a contract with Plaintiff, a California

20

corporation, to “warehouse” Defendants’ goods.

21
22
23
24
25
26
27
28

Plaintiff alleges in its Complaint that the

Compl.

Plaintiff stated in its Complaint that Individual
Defendants are citizens of Florida and Defendant Sun Group is
organized under Florida laws and has its principal place of
business in Florida. Compl. ¶¶ 3-5. Therefore, with no
allegations that any Defendant resides in California, all
Defendants are nonresidents.
2

Plaintiff asserts that Defendant Sun Group is the alter
ego of Individual Defendants. See Compl. ¶¶ 12-13. The Court
declines to assess whether this theory is viable at this stage of
litigation, and instead centers its analysis on whether Plaintiff
has met its burden of showing that the Court has personal
jurisdiction over Individual Defendants.
3

6

1

¶¶ 2-5, 14-15.

Plaintiff fails to provide the location

2

of this warehouse or any other facts that could

3

conceivably support the notion that Defendants had

4

minimum contacts with California.

5

Plaintiff merely states that Defendants entered into a

6

contract with a California corporation for warehousing

7

services when it is well established that a contract

8

alone does not automatically establish minimum contacts

9

with a plaintiff’s home forum.

See generally id.

See Boschetto v.

10

Hansing, 539 F.3d 1011, 1017 (9th Cir. 2008) (“[A]

11

contract alone does not create minimum contacts with the

12

plaintiff’s forum.”); Burger King Corp. v. Rudzewicz,

13

471 U.S. 462, 475 (1985) (“[There must be] actions by

14

the defendant . . . that create a substantial connection

15

with the forum [s]tate [to establish personal

16

jurisdiction].”) (internal quotation marks omitted).

17

Moreover, Plaintiff did not file an opposition or

18

affidavits alleging that the Court has personal

19

jurisdiction over Individual Defendants.

20

Plaintiff’s allegations in its Complaint did support

21

finding that Individual Defendants had minimum contacts

22

with California, Defendants dispute that contention by

23

arguing that “there exists no minimum contacts with the

24

forum state.”

25

(holding that only uncontroverted allegations in the

26

complaint must be taken as true for the purposes of

27

ascertaining whether a plaintiff has met its burden of

28

showing personal jurisdiction).

And even if

See Schwarzenegger, 374 F.3d at 800

7

Therefore, Plaintiff

1

has failed to provide adequate information to establish

2

a prima facie case for exercising personal jurisdiction

3

over Individual Defendants.

4

2.

Local Rule 7-12

5

Local Rule 7-12 reinforces the conclusion that

6

Plaintiff has not sufficiently alleged personal

7

jurisdiction.

8

“failure to file any required document, or the failure

9

to file it within the deadline, may be deemed consent to

Local Rule 7-12 states in pertinent part:

10

the granting or denial of the motion.”

C.D. Cal. Local

11

Civ. R. 7-12.

12

and a court should grant an unopposed motion, the Ninth

13

Circuit considers the following five factors: (1) the

14

public’s interest in expeditious resolution in

15

litigation; (2) the court’s need to manage its docket;

16

(3) the risk of prejudice to the defendants; (4) the

17

public policy favoring disposition of cases of their

18

merits; and (5) the availability of less drastic

19

sanctions.

20

Cir. 2002).

21

balancing test, so not all five factors must support

22

dismissal.”

23

15-2123-JLS (JCGx), 2016 WL 5886902 (C.D. Cal. Aug. 18,

24

2016) (citing Valley Eng’rs Inc. v. Elec. Eng’g Co., 158

25

F.3d 1051, 1057 (9th Cir. 1998)).

26

///

27

///

28

///

In assessing whether this rule applies

Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th
This test for dismissal is “a disjunctive
Sowinski v. Cal. Air Res. Board, No. SACV

8

1

a.

The Public’s Interest in Expeditious
Resolution of Litigation

2
3

Here, as to the first factor, the public’s interest

4

in expeditious resolution of litigation always favors

5

dismissal.

6

(9th Cir. 1999).

7

dismissal.

8

Yourish v. Cal. Amplifier, 191 F.3d 983, 990

b.

Thus, this factor weighs in favor of

The Court’s Need to Manage Its Docket

9

Second, the Court’s need to manage its docket

10

depends on whether the delay in a particular case

11

interferes with docket management and the public

12

interest.

13

Plaintiff’s failure to file a response or request an

14

extension indicates that the Plaintiff does not intend

15

to prosecute the action against the Individual

16

Defendants.

17

11-01113 MMM (FMOx), 2011 WL 13218018 at *2 (C.D. Cal.

18

May 12, 2011) (finding in favor of dismissal where

19

plaintiff’s inattention and nonresponsive behavior

20

suggests further litigation would waste the court’s

21

valuable resources).

22

of dismissal.

23
24

c.

Pagtalunan, 291 F.3d at 642.

Here,

See Balsin v. Equable Ascent Fin., LLC, CV

Thus, this factor weighs in favor

The Risk of Prejudice to the Defendants

Next, to prove risk of prejudice, a defendant must

25

establish that a plaintiff’s actions impaired a

26

defendant’s ability to proceed to trial or threatened to

27

interfere with the rightful decision of the case.

28

Pagtalunan, 291 F.3d at 642 (citing Malone v. U.S.
9

1

Postal Serv., 833 F.2d 129, 131 (9th Cir. 1987)).

2

Plaintiff neither provides an explanation for its

3

failure to file an opposition nor requests an extension

4

to do so.

5

JFW, 2009 WL 1559586, *3 (C.D. Cal. May 28, 2009)

6

(“Where a party offers a poor excuse for failing to

7

comply with a court's order, the prejudice to the

8

opposing party is sufficient to favor dismissal.”);

9

Grubb v. Hernandez, No. ED CV 06-00807SJOAJW, 2009 WL

10

1357411 at *2 (C.D. Cal. May 1, 2009) (“In the absence

11

of a showing to the contrary, prejudice to defendants or

12

respondents is presumed from unreasonable delay [for the

13

purpose of Local Rule 7-12].”).

14

weighs in favor of dismissal.

15
16
17

d.

Here,

See, e.g., Foster v. Jacquez, No. CV 09-01406

Therefore, this factor

The Public Policy Favoring Disposition of
Cases on Their Merits

Fourth, public policy favors disposition of cases

18

on the merits, and therefore, this factor generally

19

weighs against dismissal.

20

Monte, 138 F.3d 393, 399 (9th Cir. 1998).

21

presumes, however, that the plaintiff “has manifested a

22

diligent desire to prosecute his or her claims.”

23

v. Ruano, No. CV 09-08471 VAP, 2012 WL 2138159 at *2

24

(C.D. Cal. June 12, 2012).

25

filed a timely opposition nor applied for an extension

26

to file an opposition.

27

favored dismissal where plaintiff failed to file a

Hernandez v. City of El
This
Ewing

Here, Plaintiff has neither

See id. (finding this factor

28
10

1

timely opposition or apply for an extension).

2

this factor weighs in favor of dismissal.
e.

3
4

Thus,

The Availability of Less Drastic Sanctions

Finally, this factor “ordinarily counsels against

5

dismissal” unless the court gave plaintiff an

6

opportunity to avoid dismissal, in which case no lesser

7

sanctions are available.

8

10525-KS, 2020 WL 3100645 at *2 (C.D. Cal. June 11,

9

2020).

Sperow v. Ponce, No. CV 19-

Here, the Court did not offer Plaintiff an

10

opportunity to avoid dismissal, nor did it find it

11

necessary to consider the availability of other less

12

drastic alternatives.

13

(finding this factor weighed against dismissal because

14

the court did not consider the lesser alternative of

15

imposing sanctions).

16

against dismissal.

17

See Pagtalunan, 291 F.3d at 643

Therefore, this factor weighs

Of the five factors, four factors weigh in favor of

18

dismissal.

Thus, the Court dismisses the Complaint

19

against the Individual Defendants pursuant to Local Rule

20

7-12.

21

3.

Leave to Amend

22

“Where a motion to dismiss is granted, a district

23

court must decide whether to grant leave to amend.”

24

Winebarger v. Pennsylvania Higher Educ. Assistance

25

Agency, 411 F. Supp. 3d 1070, 1082 (C.D. Cal. 2019).

26

“The court should give leave [to amend] freely when

27

justice so requires.”

28

Ninth Circuit, “Rule 15’s policy of favoring amendments

Fed. R. Civ. P. 15(a)(2).

11

In the

1

to pleadings should be applied with ‘extreme

2

liberality.’”

3

(9th Cir. 1981).

4

standard, the Court may consider “the presence of any of

5

four factors: bad faith, undue delay, prejudice to the

6

opposing party, and/or futility.”

7

Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir.

8

2001).

9

United States v. Webb, 655 F.2d 977, 979
Against this extremely liberal

Owens v. Kaiser

Here, leave to amend Plaintiff’s claims is

10

appropriate because Plaintiff can cure its failure to

11

meet its burden by pleading facts that support

12

exercising personal jurisdiction over the Individual

13

Defendants.

14

Moreover, there is no evidence of bad faith by

15

Plaintiff.

16

opposition could weigh toward finding undue delay or

17

prejudice; ultimately, “[t]he purpose of the litigation

18

process is to vindicate meritorious claims.

19

solely because of delay, to permit an amendment to a

20

pleading in order to state a potentially valid claim

21

would hinder this purpose without promoting any other

22

sound judicial policy.”

23

1191 (9th Cir. 1973).

24

Defendants’ Motion to Dismiss Plaintiff’s claims with

25

leave to amend.

26

Thus, leave to amend would not be futile.
While Plaintiff’s failure to file an

Refusing,

Howey v. U.S., 481, F.2d 1187,
The Court therefore GRANTS

III.

CONCLUSION

27

In sum, Plaintiff has not sufficiently alleged that

28

the Court has personal jurisdiction over the Individual
12

1

Defendants.

Based on the foregoing, the Court GRANTS

2

Defendant’s Motion to Dismiss with leave to amend.

3

IT IS SO ORDERED.

4
5
6

DATED: November 17, 2022

/S/ RONALD S.W. LEW
_____________________________
HONORABLE RONALD S.W. LEW
Senior U.S. District Judge

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13