Ettore v. Calvo et al

Filing 13

ORDER denying motion for early discovery and continuing briefing schedule and hearing on motions to dismiss 7 . Oppositions to the motions due by 4/24/2017, Reply briefs due by 5/1/2017. Motion Hearing cont to 5/8/2017 11:15 AM before Judge Larry Alan Burns. Signed by Judge Larry Alan Burns on 3/29/17. (kas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LARISSA ETTORE,

CASE NO. 16cv2915-LAB (BGS)
Plaintiff,

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vs.

ORDER DENYING MOTION FOR
EARLY DISCOVERY; AND

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ORDER CONTINUING BRIEFING
SCHEDULE AND HEARING ON
MOTIONS TO DISMISS

DAVID CALVO, et al.,
Defendants.

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Plaintiff Larissa Ettore originally filed her claims against Defendants Ronald Huxtable

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and David Calvo as a third party complaint in the related case of Ayers v. Lee, 14cv542-LAB

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(BGS). Huxtable and Calvo then moved to dismiss for lack of personal jurisdiction. Because

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Ayers was already winding down at that point, and because Ettore’s claims had no direct

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relationship to the claims pending in Ayers, the Court severed those claims and directed

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Ettore to file a new complaint.

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Defendants then filed motions to dismiss for lack of personal jurisdiction. (Docket nos.

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4 and 5.) Huxtable’s motion also sought dismissal for improper venue; and Calvo’s, for

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failure to state a claim. Plaintiff Larissa Ettore moved to continue the hearing on those

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motions, and also for early jurisdictional discovery.

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16cv2915

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Discussion

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The fact that Ettore filed her claims in a case where the Court already had personal

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jurisdiction over the other parties does not mean the Court has jurisdiction over Huxtable and

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Calvo.

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Their motions point out that the underlying claims in this case arose primarily in

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Nevada, and that neither of them is resides here or resided here at the time the claims arose.

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Huxtable and Calvo are residents of Florida and Texas, respectively. They also argue that

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neither of them directed their actions towards this District or towards California, so as to

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make personal jurisdiction or venue proper here.

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Ettore argues that she has a colorable claim that the Court can exercise personal

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jurisdiction over Defendants. She bases this on the complaint in Ayers. She refers to an

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order by the SEC, which she attaches to her complaint. She alleges that some defendants

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in the related case, Ayers v. Lee, were located in this District, or in California. She also

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refers generally to claims that Calvo and Huxtable assisted James Yiu Lee in his scam.

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Ettore resides in this District, but does not allege that Calvo or Huxtable had any contact with

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her here.

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The Ayers complaint does not mention California as the situs for any part of the

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claims, though it does mention a number of other states. Ayers was originally filed in the

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District of Nevada, and transferred to this District only when the defendants waived their

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objections to defective venue, so that the case could be adjudicated along with the related

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case, S.E.C. v. Lee, 14cv347-LAB (BGS), which was then pending in this District.

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The SEC order (Complaint, Ex. B) does not identify any connection between the

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underlying claims and this District. It identifies various things Huxtable and Lee did, the bulk

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of which appear to have taken place either in Florida, Nevada, Colorado, or in some place

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where one of the Ayers plaintiffs lived. The only apparent connection between Huxtable and

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this District is that Huxtable sent communications to Lee, and Lee was a resident of this

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District.

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But the Ayers complaint makes clear much of what Lee did occurred in Nevada,

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16cv2915

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Colorado, or other states. And in any case, even if Huxtable had some connection with this

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District, it would not give the Court any basis for exercising personal jurisdiction over Calvo.

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“It is clear that the question of whether to allow discovery is generally within the

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discretion of the trial judge. However, where pertinent facts bearing on the question of

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jurisdiction are in dispute, discovery should be allowed.” America West Airlines, Inc. v. GPA

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Group, Ltd., 877 F.2d 793, 801 (9th Cir. 1989). Where the movant can point to “little more

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than a hunch that [early discovery] might yield jurisdictionally relevant facts,” denial of

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discovery is appropriate. Boschetto v. Hansing, 539 F.3d 1011, 1020 (9th Cir. 2008). Courts

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in this circuit have required plaintiffs to present at least a colorable basis for jurisdiction. See

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Calix Networks, Inc. v. Wi-Lan, Inc., 2010 WL 3515759, at *4 (N.D. Cal., Sept. 8, 2010).

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Here, Ettore has not even presented a colorable basis for personal jurisdiction. None

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of the pleadings or evidence she points to suggest that there might be evidence showing that

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either Huxtable or Calvo might be subject to personal jurisdiction in this District. The case

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for jurisdiction over Calvo is even weaker, because he is not named in the SEC order.

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Furthermore, unlike some other cases, alternative venues are available where jurisdiction

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would be proper. At a bare minimum, personal jurisdiction would be proper in the two

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districts where Calvo and Huxtable reside. The claims might need to be severed in order to

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be transferred there. Another possibility is the District of Nevada, where most of the

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underlying claims arose.

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Conclusion and Order

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The motion for early jurisdictional discovery is DENIED. Ettore requested that the

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hearing on the two motions to dismiss be continued to allow her to seek early discovery. But

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during the pendency of her ex parte discovery request, the deadline to file her oppositions

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to the Defendants’ two motions passed.

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Ettore may file her oppositions to the two motions by Monday, April 24, 2017 and

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Defendants may file their reply briefs by Monday May 1, 2017. The hearing on the two

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motions is CONTINUED from Monday, April 3 to Monday, May 8, 2017 at 11:15 a.m. The

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16cv2915

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parties should bear in mind that the Court may vacate the hearing if it determines oral

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argument is not necessary.

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IT IS SO ORDERED.
DATED: March 29, 2017
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HONORABLE LARRY ALAN BURNS
United States District Judge

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16cv2915