Buelow v. Plaza Motors of Brooklyn, Inc.

Filing 20

ORDER signed by District Judge Kimberly J. Mueller on 6/29/2017 GRANTING 9 Motion to Dismiss for Lack of Personal Jurisdiction. CASE CLOSED. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRANDON BUELOW,

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Plaintiff,

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No. 2:16-cv-02592-KJM-AC

v.

ORDER

PLAZA MOTORS OF BROOKLYN, INC.
d/b/a PLAZA HONDA,
Defendant.

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A buyer sues a car dealership for allegedly misrepresenting the condition of the car

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it sold him. Defendant Plaza Motors of Brooklyn, Inc. (“Plaza”) now moves to dismiss for lack

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of personal jurisdiction. Mot., ECF No. 9. Plaintiff Brandon Buelow (“Brandon”) opposes.

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Opp’n, ECF No. 11. As provided by Local Rule 230(g), the court submitted the matter without a

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hearing. Min. Order, ECF No. 15. For the reasons set forth below, the court now GRANTS

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Plaza’s motion to dismiss.

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I.

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FACTUAL ALLEGATIONS
Brandon is a captain in the United States Air Force who was stationed at Joint

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Base McGuire-Dix-Lakehurst in New Jersey until sometime in late 2015. Compl. ¶¶ 4, 6, ECF

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No. 1. Brandon received orders that he was being transferred to Travis Air Force Base in

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California, so he and his wife Angela Buelow (“Angela”) (collectively “the Buelows”) decided to

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buy a new car “to help facilitate their cross-country relocation.” Id. ¶¶ 6–7.

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Plaza is a car dealer in New York and its principal place of business is in

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Brooklyn. Id. ¶ 5. The Buelows saw an advertisement Plaza had placed on the website

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www.autotrader.com, advertising the sale of a new 2016 Honda Pilot. Id. ¶¶ 8–9. Angela

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telephoned Plaza to find out whether the car was still available and to get more details about its

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condition. Id. ¶¶ 11–12. On that call, Angela informed Plaza’s salesperson Richard Garcia

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(“Garcia”) that the Buelows were relocating to California and would be taking the car with them.

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Id. ¶ 11. Also on that call, Garcia told Angela the car was new but that it had been driven for

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roughly three hundred miles because a prior prospective purchaser had arranged for it to be

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transferred from Virginia to New York, before the prospective purchaser ultimately selected a

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vehicle with a different trim package. Id. ¶ 12. Garcia told Angela that Plaza would sell the

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Buelows the car for $41,000, at a discount from the advertised price of $43,200, to match the

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price a dealership in New Jersey was offering for a new Honda Pilot. Id. Satisfied with the

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conversation, Angela arranged a credit card payment to Plaza to hold the car until the next day

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when she and Brandon could drive from their home in New Jersey to Plaza’s premises in New

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York to complete the purchase. Id. ¶ 13.

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The next day, the Buelows visited Plaza’s Brooklyn location and met with Garcia

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to discuss the car. Id. ¶¶ 14–15. Garcia again told the Buelows that Plaza would sell them the car

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for $41,000. Id. ¶ 16. Brandon noticed the car did not have a Monroney sticker affixed. Id. ¶¶

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17–18. A Monroney sticker is displayed in the window of all new cars and contains information

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about the manufacturer’s suggested retail price, the car’s specifications, fuel economy ratings, and

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the like. Id. ¶ 17; see also 15 U.S.C. § 1232 (listing the information a Monroney sticker must

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provide). When Brandon asked Garcia about the missing sticker, Garcia told Brandon the “prior

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dealership had removed the window sticker before the [car] was driven up from Virginia,” but

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that Garcia “would send [Brandon] a copy of the . . . sticker.” Compl. ¶¶ 18–19.

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The parties then began filling out paperwork to complete the transaction. Plaza
employees prepared several documents that Brandon signed, including the following:
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1. A document entitled “New York State Department of Motor Vehicles - Retail

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Certificate of Sale,” which identified Brandon as the purchaser of the car,

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identified “American Honda Motor, Torrance, CA” as the prior owner, and

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identified the type of sale as “Retail” and “New.” Id. ¶ 21. American Honda

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Motor (“American Honda”) is a California-based subsidiary of Honda Motor

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Co., Ltd. and distributes all Honda-branded cars in the United States.

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Schlanger Decl. ¶¶ 4, 6, ECF No. 11-1.

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2. A document entitled “Application of Certificate of Ownership,” a New Jersey

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Motor Vehicle Commission form, indicating that Brandon owned the car and

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American Honda Finance was the lienholder. Compl. ¶ 22. American Honda

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Finance (“Honda Finance”) is a California-based Honda entity that offers

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financial services and retail loans on Honda-branded products. Schlanger

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Decl. ¶¶ 12–16.

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3. A document entitled “New Vehicle Invoice,” which stated that the car was

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“NEW,” that Plaza sold it to Brandon, and that Honda Finance was the

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lienholder. Compl. ¶ 23.

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4. A document entitled “Motor Vehicle (Automobile) - Simple Interest - Retail

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Installment Contract - Consumer Credit Document New York,” which

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indicated the car was “NEW.” Id. ¶ 27.

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Brandon also signed a limited power of attorney authorizing specified Plaza employees to “sign

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and execute any documents necessary to process” the transfer of title, registration and

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procurement of license plates for the car. Id. ¶ 28. Finally, Garcia helped the Buelows connect

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their Bluetooth devices to the car. Id. ¶ 30. During that process, the Buelows noticed other

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Bluetooth devices had previously been paired with the car and they asked Garcia for an

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explanation. Id. ¶ 31. Garcia replied: “the guy who drove the car up from Virginia wanted to

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listen to his own music.” Id.

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Unbeknownst to the Buelows, the car Plaza sold them was not actually new. It had
been owned previously by a man named Alonzo Nimmons (“Nimmons”). Id. ¶¶ 35–36.
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Nimmons bought the car from Plaza about a month before the Buelows did. Id. ¶ 37. A week

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after Nimmons purchased the car, he dropped it off with Plaza so Plaza could repair a “minor

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issue.” Id. ¶ 38. When Nimmons returned to pick up the car, the front passenger side of the car

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had been “crushed in.” Id. ¶ 39. Nimmons demanded and eventually received a replacement car

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from Plaza. Id. ¶ 40. Plaza never told the Buelows the car had been previously owned or that it

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had been damaged. Id. ¶ 41. In fact, Plaza “made false assertions to the contrary in an attempt to

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conceal the true facts.” Id. The Buelows only learned about the car’s history after an irregularity

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with the car’s satellite radio subscription motivated them to investigate. Id. ¶¶ 32–35. The

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Buelows are now aware that the car “is not, in fact, a pristine, low-mileage, single-owner vehicle,

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but rather a used car with multiple owners, undisclosed accidents, and uncertain provenance.” Id.

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¶ 43.

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II.

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PROCEDURAL BACKGROUND
On October 31, 2016, Brandon filed a complaint against Plaza in this court. He

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asserts the following claims: (1) violation of California’s Song–Beverly Consumer Warranty Act,

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Compl. ¶¶ 48–60; (2) violation of the federal Magnuson–Moss Warranty Act for Breach of

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Express Written Warranty, id. ¶¶ 61–69; (3) violation of the federal Magnuson–Moss Warranty

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Act for Breach of “Implied Written Warranty,” id. ¶¶ 70–88; (4) rescission of the purchase, id.

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¶¶ 89–93; and (5) violation of the New Jersey Consumer Fraud Act, id. ¶¶ 94–99.

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On February 3, 2017, Plaza filed this motion to dismiss for lack of personal

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jurisdiction. Mot. Brandon opposed, Opp’n, and Plaza replied, Reply, ECF No. 13.

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III.

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LEGAL STANDARD
Rule 12(b)(2) of the Federal Rules of Civil Procedure provides that a party may

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move to dismiss a complaint for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). Although

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the defendant brings the motion, “the plaintiff bears the burden of establishing that jurisdiction is

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proper.” Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008).

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Where, as here, there is no federal statute governing personal jurisdiction, the court

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applies the law of the state in which it sits. Love v. Associated Newspapers, Ltd., 611 F.3d 601,

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608–09 (9th Cir. 2010). “California’s long-arm jurisdictional statute is coextensive with federal
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due process requirements.” Id. (citing Cal. Civ. Proc. Code § 410.10). “For a court to exercise

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personal jurisdiction over a nonresident defendant [consistent with due process], that defendant

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must have at least ‘minimum contacts’ with the relevant forum such that the exercise of

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jurisdiction ‘does not offend traditional notions of fair play and substantial justice.’”

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Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir. 2004) (quoting Int’l Shoe

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

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Defendant’s motion focuses on the lack of “minimum contacts” necessary to

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support specific personal jurisdiction, as Brandon concedes general jurisdiction does not exist,

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Opp’n 11:6–9.1 In the Ninth Circuit, courts apply a three-part test to determine whether the

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exercise of specific jurisdiction is appropriate:

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(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.

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Schwarzenegger, 374 F.3d at 802 (citing Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987)).

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“The plaintiff bears the burden of satisfying the first two prongs of the test.” Id. If the plaintiff

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fails, the inquiry ends and specific jurisdiction does not exist. Id. If the plaintiff succeeds, the

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burden shifts to the defendant to “‘present a compelling case’ that the exercise of jurisdiction

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would not be reasonable.” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476–78

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(1985)).

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If, as here, the court decides the motion without an evidentiary hearing, the

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plaintiff “need only make a prima facie showing of jurisdictional facts.” Id. at 800. The court

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may consider evidence outside the pleadings, including affidavits and other materials submitted

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Specific (or case-related) jurisdiction depends on a connection between the forum and
the underlying controversy, and stands in contrast to general (or all-purpose) jurisdiction, which
permits a court to “assert jurisdiction over a defendant based on a forum connection unrelated to
the underlying suit.” Walden v. Fiore, 134 S. Ct. 1115, 1121 n.6 (2014).
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with the motion. See Daimler AG v. Bauman, 134 S. Ct. 746, 752 (2014) (noting plaintiff

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opposing a Rule 12(b)(2) motion submitted declarations and exhibits purporting to demonstrate

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defendant's contacts with the forum State). The court takes as true the uncontroverted allegations

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in the plaintiff’s complaint and resolves conflicts in the parties’ affidavits, if any, in the plaintiff’s

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favor. Boschetto, 539 F.3d at 1015.

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IV.

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DISCUSSION
A.

Jurisdiction
Brandon must first establish Plaza either purposefully availed itself of the privilege

of conducting activities in California or purposefully directed its activities towards California.

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Schwarzenegger, 374 F.3d at 802. Purposeful availment and purposeful direction are sometimes

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used interchangeably, but the two are actually distinct concepts. Id. Courts typically employ a

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purposeful availment analysis in contract cases and employ a purposeful direction analysis in

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cases sounding in tort. Id. This case sounds primarily in tort, as Brandon concedes. Opp’n

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12:20–23; see also Plant Food Co-op v. Wolfkill Feed & Fertilizer Corp., 633 F.2d 155, 160 (9th

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Cir. 1980) (“[A] breach of warranty action may sound in tort.”); Parker v. Alexander Marine Co.,

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No. SA CV 12-1994-DOC (ANx), 2015 WL 12712083, at *20 (C.D. Cal. May 26, 2015) (“Song–

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Beverly Act claims [are] more akin to tort claims than breach of contract claims, or at least [have]

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a ‘tortious or willful flavor.’”); Podobedov v. Living Essentials, LLC, No. CV 11-6408 PSG

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(PLAx), 2012 WL 2513465, at *3 (C.D. Cal. Mar. 22, 2012) (“Although there are elements of

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both torts and contracts in this case, this case is primarily about Defendants’ allegedly fraudulent

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marketing practices, and therefore sounds in tort.”). The court therefore employs a purposeful

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direction analysis here.

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Courts evaluate purposeful direction under the three-part “effects” test established

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in Calder v. Jones, 465 U.S. 783 (1984). “Under this test, a defendant purposefully directed his

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activities at the forum if he: ‘(1) committed an intentional act, (2) expressly aimed at the forum

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state, (3) causing harm that the defendant knows is likely to be suffered in the forum state.’”

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Picot v. Weston, 780 F.3d 1206, 1214 (9th Cir. 2015) (quoting Schwarzenegger, 374 F.3d at 803).

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Brandon satisfies the first and third elements of the Calder test. He alleges Plaza

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intentionally misrepresented the condition of the car it sold him, Compl. ¶ 2, and he alleges Plaza

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was aware that he and his family would take the car to California when they moved, id. ¶ 11.

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The second Calder element, express aiming, is the crux of this case. The salient

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question is “whether the defendant’s allegedly tortious action was ‘expressly aimed at the

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forum.’” Picot, 780 F.3d at 1214 (quoting Brayton Purcell LLP v. Recordon & Recordon, 606

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F.3d 1124, 1129 (9th Cir. 2010)). “The exact form of [this] analysis varies from case to case and

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‘depends, to a significant degree, on the specific type of tort or other wrongful conduct at issue.’”

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Id. (quoting Schwarzenegger, 374 F.3d at 807). In this case, Brandon alleges intentional

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misrepresentations, so the court must consider whether Plaza expressly aimed those

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misrepresentations at California. Id.

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The court concludes Plaza’s actions do not connect it to California in a way that

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creates specific personal jurisdiction in this case. Plaza’s allegedly wrongful conduct, namely the

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misrepresentations it made to the Buelows, all occurred on the internet, on the telephone, or at its

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dealership in New York. Compl. ¶¶ 9–31, 41–42. Even the underlying damage to the car

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occurred only in New York. Id. ¶ 38. Although Brandon correctly points out that the transaction

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has some California nexus because of the connections to American Honda and Honda Finance,

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Opp’n 13:25–14:11, those connections do not relate to the misrepresentations at issue here. The

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“specific jurisdiction inquiry is ‘limited to the defendant’s suit-related conduct,’” Picot, 780 F.3d

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at 1215 n.3 (quoting Walden, 134 S. Ct. at 1121), and “a defendant's general connections with the

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forum are not enough,” Bristol-Myers Squibb Co. v. Superior Court, No. 16–466, slip op. at 7

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(U.S. June 19, 2017). The only other allegation connecting Plaza to California is that Plaza

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employees knew the Buelows “currently lived in New Jersey but were relocating to California.”

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Compl. ¶ 11. But that connection “is not tethered to California in any meaningful way.” Picot,

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780 F.3d at 1215. Instead, Brandon’s “injury is entirely personal to him and would follow him

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wherever he might choose to live or travel.” Id.

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At bottom, Plaza did not expressly aim its misrepresentations at California so the

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Calder effects test is not satisfied. And because the Calder effects test is not satisfied, Plaza did
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not purposefully direct its suit-related conduct towards California. Thus, Brandon does not

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satisfy the first prong of the Ninth Circuit’s three-part specific jurisdiction test. The court

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therefore cannot exercise specific personal jurisdiction over Plaza.

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B.

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Jurisdictional Discovery
Brandon seeks an opportunity to conduct jurisdictional discovery related to Plaza’s

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contacts with California. Opp’n 20:15–16. Plaza does not respond to his request. “Discovery

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may be appropriately granted where pertinent facts bearing on the question of jurisdiction are

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controverted or where a more satisfactory showing of the facts is necessary.” Boschetto, 539 F.3d

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at 1020 (quotation omitted). But that is not the case here. The court has already credited

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Brandon’s allegations and the affidavits submitted with his opposition brief. The facts

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surrounding Plaza’s misrepresentations to the Buelows are well developed; they simply are

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insufficient to create personal jurisdiction. The court therefore DENIES Brandon’s request for

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jurisdictional discovery.

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V.

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CONCLUSION
Brandon has not made a prima facie showing that Plaza purposefully directed its

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allegedly wrongful actions towards California. Therefore, the court lacks personal jurisdiction

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over Plaza. Accordingly, the court hereby GRANTS Plaza’s motion to dismiss for lack of

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personal jurisdiction.

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IT IS SO ORDERED.
DATED: June 29, 2017.

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UNITED STATES DISTRICT JUDGE
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