AO Ventures, LLC v. Gutierrez et al

Filing 45

*** FILED IN ERROR. REFER TO DOCUMENT 46 . *** AMENDED ORDER RE MOTIONS TO DISMISS. Signed by Judge Joseph C. Spero on December 18, 2012. (jcslc1, COURT STAFF) (Filed on 12/18/2012) Modified on 12/18/2012 (fff, COURT STAFF).

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 AO VENTURES, LLC, 8 Plaintiff, ARMANDO GUTIERREZ, et al., Defendants. 11 United States District Court Northern District of California AMENDED ORDER RE MOTIONS TO DISMISS [Docket Nos. 15, 22]1 v. 9 10 Case No. 12-04625 JCS 12 13 I. INTRODUCTION Plaintiff AO Ventures, LLC (“AO Ventures”) alleges in its complaint that it entered into an 14 15 agreement with Defendant Armando Gutierrez for the purchase of the domain name 16 (“the Domain Name”) for the amount of $14,500. Complaint, ¶ 14. Instead 17 of transferring the Domain Name to AO Ventures, Plaintiff alleges, Gutierrez transferred it to 18 Defendant CEA Global Education (“CEA”). On the basis of these allegations, AO ventures 19 asserts claims for breach of contract, specific performance and fraud against Gutierrez and for 20 intentional interference with contract against CEA. Plaintiff alleges that there is federal subject 21 matter jurisdiction under 28 U.S.C. § 1332(a) on the basis that there is complete diversity of 22 citizenship and the amount in controversy exceeds $75,000. 23 Gutierrez brings a motion to dismiss (“Gutierrez Motion ”) asserting that: 1) there is no 24 personal jurisdiction over Gutierrez, who is a resident of Florida; 2) there is no subject matter 25 jurisdiction because it is apparent to a legal certainty that the amount-in-controversy requirement 26 27 28 1 The Court amends its previous order to reflect that dismissal of Plaintiff’s complaint is without prejudice. 1 Second, Plaintiff of , ffers no basis from which to conclud that either the develop s h de r pment costs 2 or the costs of retaining an expert were incurred as a result of D t r Defendant’s failure to tra ansfer the 3 Dom Name to Plaintiff. Indeed, all but two mon of the d main nths development expenditure t es 4 (approximately $10,000 ba y ased on Plain ntiff’s estima of $5,000 a month) w incurred after ate 0 were d 5 Gut tierrez allege edly cancelled the transa action, on M 17, 2012 See Comp May 2. plaint, ¶ 19. Similarly, 6 the Alexander Declaration does not stat that any o the costs to retain the e D te of o expert were incurred 7 bef fore the alleg breach. Because con ged nsequential d damages resulting from a breach of c contract 8 mu be reasonably foresee ust eable at the ti the cont ime tract was ent tered, see 99 v. CIT Co 99 orp., 776 9 F.2 866, 872 (9th Cir. 198 this evid 2d ( 85), dence is not s sufficient to counter the evidence pr resented by 10 United States District Court Northern District of California 11 Gut tierrez as to the amount in controver rsy. o nce rties, it is app parent to a le certainty that the egal y Based on the eviden presented by the part 12 $75 5,000 amoun nt-in-controv versy require ement is not met in this c case. 13 III. CONCLU . USION 14 For the re easons stated above, the Gutierrez M d Motion is GR RANTED. The Court dis smisses this 15 acti in its en ion, ntirety, witho prejudice for lack of subject matt jurisdicti out e ter ion. Because the Court e 16 find based on the evidence presented by the partie that this de ds e b es eficiency can nnot be cure Plaintiff ed, 17 sha not be per all rmitted to fil an amende complain The Clerk is instructe to close th file in le ed nt. k ed he 18 this case. s 19 IT IS SO ORDERED 20 Dat Decemb 18, 2012 ted: ber 21 __________ ___________ ___ ___ Jos seph C. Sper ro Un nited States M Magistrate Ju udge 22 23 24 25 26 27 28 5

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