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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LARISSA ETTORE, CASE NO. 16cv2915-LAB (BGS) Plaintiff, 12 vs. ORDER DENYING MOTION FOR EARLY DISCOVERY; AND 13 14 ORDER CONTINUING BRIEFING SCHEDULE AND HEARING ON MOTIONS TO DISMISS DAVID CALVO, et al., Defendants. 15 16 17 Plaintiff Larissa Ettore originally filed her claims against Defendants Ronald Huxtable 18 and David Calvo as a third party complaint in the related case of Ayers v. Lee, 14cv542-LAB 19 (BGS). Huxtable and Calvo then moved to dismiss for lack of personal jurisdiction. Because 20 Ayers was already winding down at that point, and because Ettore’s claims had no direct 21 relationship to the claims pending in Ayers, the Court severed those claims and directed 22 Ettore to file a new complaint. 23 Defendants then filed motions to dismiss for lack of personal jurisdiction. (Docket nos. 24 4 and 5.) Huxtable’s motion also sought dismissal for improper venue; and Calvo’s, for 25 failure to state a claim. Plaintiff Larissa Ettore moved to continue the hearing on those 26 motions, and also for early jurisdictional discovery. 27 /// 28 /// -1- 16cv2915 1 Discussion 2 The fact that Ettore filed her claims in a case where the Court already had personal 3 jurisdiction over the other parties does not mean the Court has jurisdiction over Huxtable and 4 Calvo. 5 Their motions point out that the underlying claims in this case arose primarily in 6 Nevada, and that neither of them is resides here or resided here at the time the claims arose. 7 Huxtable and Calvo are residents of Florida and Texas, respectively. They also argue that 8 neither of them directed their actions towards this District or towards California, so as to 9 make personal jurisdiction or venue proper here. 10 Ettore argues that she has a colorable claim that the Court can exercise personal 11 jurisdiction over Defendants. She bases this on the complaint in Ayers. She refers to an 12 order by the SEC, which she attaches to her complaint. She alleges that some defendants 13 in the related case, Ayers v. Lee, were located in this District, or in California. She also 14 refers generally to claims that Calvo and Huxtable assisted James Yiu Lee in his scam. 15 Ettore resides in this District, but does not allege that Calvo or Huxtable had any contact with 16 her here. 17 The Ayers complaint does not mention California as the situs for any part of the 18 claims, though it does mention a number of other states. Ayers was originally filed in the 19 District of Nevada, and transferred to this District only when the defendants waived their 20 objections to defective venue, so that the case could be adjudicated along with the related 21 case, S.E.C. v. Lee, 14cv347-LAB (BGS), which was then pending in this District. 22 The SEC order (Complaint, Ex. B) does not identify any connection between the 23 underlying claims and this District. It identifies various things Huxtable and Lee did, the bulk 24 of which appear to have taken place either in Florida, Nevada, Colorado, or in some place 25 where one of the Ayers plaintiffs lived. The only apparent connection between Huxtable and 26 this District is that Huxtable sent communications to Lee, and Lee was a resident of this 27 District. 28 /// But the Ayers complaint makes clear much of what Lee did occurred in Nevada, -2- 16cv2915 1 Colorado, or other states. And in any case, even if Huxtable had some connection with this 2 District, it would not give the Court any basis for exercising personal jurisdiction over Calvo. 3 “It is clear that the question of whether to allow discovery is generally within the 4 discretion of the trial judge. However, where pertinent facts bearing on the question of 5 jurisdiction are in dispute, discovery should be allowed.” America West Airlines, Inc. v. GPA 6 Group, Ltd., 877 F.2d 793, 801 (9th Cir. 1989). Where the movant can point to “little more 7 than a hunch that [early discovery] might yield jurisdictionally relevant facts,” denial of 8 discovery is appropriate. Boschetto v. Hansing, 539 F.3d 1011, 1020 (9th Cir. 2008). Courts 9 in this circuit have required plaintiffs to present at least a colorable basis for jurisdiction. See 10 Calix Networks, Inc. v. Wi-Lan, Inc., 2010 WL 3515759, at *4 (N.D. Cal., Sept. 8, 2010). 11 Here, Ettore has not even presented a colorable basis for personal jurisdiction. None 12 of the pleadings or evidence she points to suggest that there might be evidence showing that 13 either Huxtable or Calvo might be subject to personal jurisdiction in this District. The case 14 for jurisdiction over Calvo is even weaker, because he is not named in the SEC order. 15 Furthermore, unlike some other cases, alternative venues are available where jurisdiction 16 would be proper. At a bare minimum, personal jurisdiction would be proper in the two 17 districts where Calvo and Huxtable reside. The claims might need to be severed in order to 18 be transferred there. Another possibility is the District of Nevada, where most of the 19 underlying claims arose. 20 Conclusion and Order 21 The motion for early jurisdictional discovery is DENIED. Ettore requested that the 22 hearing on the two motions to dismiss be continued to allow her to seek early discovery. But 23 during the pendency of her ex parte discovery request, the deadline to file her oppositions 24 to the Defendants’ two motions passed. 25 Ettore may file her oppositions to the two motions by Monday, April 24, 2017 and 26 Defendants may file their reply briefs by Monday May 1, 2017. The hearing on the two 27 motions is CONTINUED from Monday, April 3 to Monday, May 8, 2017 at 11:15 a.m. The 28 /// -3- 16cv2915 1 parties should bear in mind that the Court may vacate the hearing if it determines oral 2 argument is not necessary. 3 4 5 IT IS SO ORDERED. DATED: March 29, 2017 ___________________________________ 6 7 HONORABLE LARRY ALAN BURNS United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- 16cv2915

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