Limo Hosting, Inc et al v. Fiks

Filing 48

ORDER DISMISSING DEFENDANT JANICE L. DOWNS FOR LACK OF PERSONAL JURISDICTION. Signed by Magistrate Judge Bernard Zimmerman on 12/3/2008. (bzsec, COURT STAFF) (Filed on 12/4/2008)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 All parties have consented to my jurisdiction, for all proceedings including entry of final judgment, pursuant to 28 U.S.C. § 636(c). 1
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

LIMO HOSTING, et al., Plaintiffs, v. MIKHAIL FIKS, et al., Defendants.

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No. C 08-2474 BZ ORDER DISMISSING DEFENDANT JANICE L. DOWNS FOR LACK OF PERSONAL JURISDICTION

On October 14, 2008, plaintiffs Limo Hosting, Inc., a Florida corporation, and Oleg Gridnev, a Florida resident, filed an amended complaint against defendants Mikhail Fiks and Janice L. Downs.1 The amended complaint alleged trademark and On October

copyright claims and related state tort claims.

29, 2008, defendant Downs, who was not named in the original complaint, acting pro se, filed a letter with the court. In

her letter she stated that she is a resident of Florida and has lived there all of her life; that she visited California once about ten years ago for two days; that she has no other

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contacts with California and that she and her business partner operate a small limousine service company in Orlando, Florida which only operates in Florida and has no contacts with California. She stated that co-defendant Fiks has done some

work on her company's website but this arrangement did not have any connection with California and she was not even aware that Fiks lived or worked in California. she swore, were all true and accurate. I deemed this letter to be a motion to dismiss for lack of personal jurisdiction filed by a pro se litigant and set a briefing and hearing schedule, which, among other things required plaintiffs to file an opposition by November 10, 2008. When plaintiffs failed to file an opposition I issued a tentative ruling granting the motion as unopposed. On These statements,

November 24, 2008, without seeking leave of court to file a late opposition, plaintiffs filed an opposition. Essentially,

they argue that in their complaint they pled sufficient facts to establish personal jurisdiction over Downs. While they

assert that their first amended complaint was verified, it was not and plaintiffs filed no declaration controverting Ms. Downs' sworn statement. The only jurisdictional allegation in the amended complaint as to Downs is that she is an individual doing business in Florida. (Pl.'s First Amend. Compl. ¶ 7.) While

the amended complaint alleges that Downs committed a variety of torts and illegal acts, none are alleged to have occurred in California. Instead, the complaint alleges that both 2

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plaintiffs and Downs are Florida residents.

In their

opposition, plaintiffs claim that Downs contracted with codefendant Fiks in California and that plaintiffs were harmed in California as a result of this contract.2 2:4-6.) (Pl.'s Opp. p.

Not only do these allegations not appear in the

amended complaint, they are not supported by any declaration or evidentiary showing. The burden of sustaining personal jurisdiction is on the plaintiffs as the parties asserting jurisdiction. See e.g.

Taylor v. Portland Paramount Corporation, 383 F.2d 634, 639 (9th Cir. 1967). When a defendant moves to dismiss for lack

of jurisdiction and supports the motion with a factual showing asserting a lack of contact with California, the burden shifts to the plaintiffs to make a prima facie factual showing to support their allegations. Plaintiffs have failed to do this.

The allegations in their pleading do not help them and they cannot rely on assertions in their lawyer's brief. See e.g.,

Oakley, Inc. v. Jofa AB, 287 F. Supp. 2d 1111, 1114 (C.D. Cal. 2003) (citing 4 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1067.6 (3rd ed. 2002)); Fahmy v. Hogge, No. C08-1152, 2008 WL 4614322, at *16 (C.D. Cal. October 14, 2008); Advanced Software, Inc. v. Datapharm, Inc.,

Plaintiffs' reliance on Calder v. Jones, 465 U.S. 783 (1984) is misplaced. There the court found personal jurisdiction in California over a reporter and editor of defendant National Enquirer, which was distributed in California. The defendants were sued over a stay concerning the California activities of a California resident, which was drawn from California sources and harmed plaintiff in California. Id. at 788-9. No comparable showing, or even allegations, were present here. 3

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No. C98-5943, 1998 WL 35151366, at *3 (C.D. Cal. November 06, 1998) (citing Gallery 13 Ltd. v. Easter, 1995 U.S. Dist. LEXIS 5807, 1995 WL 258143, at *2 (S.D.N.Y. May 2, 1995); Harry Winston, Inc. v. Waldfogel, 292 F. Supp. 473 (S.D.N.Y. 1968)). IT IS THEREFORE ORDERED that Downs' motion is GRANTED and this complaint is DISMISSED as to Janice Downs for lack of personal jurisdiction. There is no need for any further

briefing or a hearing on this issue and Downs is relieved of having to file a reply to plaintiffs' opposition. Dated: December 3, 2008

Bernard Zimmerman United States Magistrate Judge
G:\BZALL\-BZCASES\LIMO HOSTING V. FIKS\ORDER DISMISSING DEF DOWNS.wpd

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