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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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AO VENTURES, LLC,

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Plaintiff,

ARMANDO GUTIERREZ, et al.,
Defendants.

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United States District Court
Northern District of California

AMENDED ORDER RE MOTIONS TO
DISMISS [Docket Nos. 15, 22]1

v.

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Case No. 12-04625 JCS

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I.

INTRODUCTION
Plaintiff AO Ventures, LLC (“AO Ventures”) alleges in its complaint that it entered into an

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agreement with Defendant Armando Gutierrez for the purchase of the domain name

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StudyingAbroad.com (“the Domain Name”) for the amount of $14,500. Complaint, ¶ 14. Instead

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of transferring the Domain Name to AO Ventures, Plaintiff alleges, Gutierrez transferred it to

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Defendant CEA Global Education (“CEA”). On the basis of these allegations, AO ventures

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asserts claims for breach of contract, specific performance and fraud against Gutierrez and for

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intentional interference with contract against CEA. Plaintiff alleges that there is federal subject

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matter jurisdiction under 28 U.S.C. § 1332(a) on the basis that there is complete diversity of

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citizenship and the amount in controversy exceeds $75,000.

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Gutierrez brings a motion to dismiss (“Gutierrez Motion ”) asserting that: 1) there is no

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personal jurisdiction over Gutierrez, who is a resident of Florida; 2) there is no subject matter

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jurisdiction because it is apparent to a legal certainty that the amount-in-controversy requirement

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The Court amends its previous order to reflect that dismissal of Plaintiff’s complaint is without
prejudice.

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Second, Plaintiff of
,
ffers no basis from which to conclud that either the develop
s
h
de
r
pment costs

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or the costs of retaining an expert were incurred as a result of D
t
r
Defendant’s failure to tra
ansfer the

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Dom Name to Plaintiff. Indeed, all but two mon of the d
main
nths
development expenditure
t
es

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(approximately $10,000 ba
y
ased on Plain
ntiff’s estima of $5,000 a month) w incurred after
ate
0
were
d

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Gut
tierrez allege
edly cancelled the transa
action, on M 17, 2012 See Comp
May
2.
plaint, ¶ 19. Similarly,

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the Alexander Declaration does not stat that any o the costs to retain the e
D
te
of
o
expert were incurred

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bef
fore the alleg breach. Because con
ged
nsequential d
damages resulting from a breach of c
contract

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mu be reasonably foresee
ust
eable at the ti the cont
ime
tract was ent
tered, see 99 v. CIT Co
99
orp., 776

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F.2 866, 872 (9th Cir. 198 this evid
2d
(
85),
dence is not s
sufficient to counter the evidence pr
resented by

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United States District Court
Northern District of California

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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

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$75
5,000 amoun
nt-in-controv
versy require
ement is not met in this c
case.

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III. CONCLU
.
USION

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For the re
easons stated above, the Gutierrez M
d
Motion is GR
RANTED. The Court dis
smisses this

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acti in its en
ion,
ntirety, witho prejudice for lack of subject matt jurisdicti
out
e
ter
ion. Because the Court
e

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find based on the evidence presented by the partie that this de
ds
e
b
es
eficiency can
nnot be cure Plaintiff
ed,

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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

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this case.
s

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IT IS SO ORDERED

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Dat Decemb 18, 2012
ted:
ber

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__________
___________
___
___
Jos
seph C. Sper
ro
Un
nited States M
Magistrate Ju
udge

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