Verbick v. The Movement Technology Company, Inc. et al

Filing 72

ORDER (1) Taking Matter Under Submission Without Oral Argument; (2) Granting Defendant The Movement Company, Inc.'s Motion To Dismiss With Prejudice; And (3) For Plaintiff To Show Cause Why Defendants Predictuv Technologies, Inc. And Predictuv LLC Should Not Be Dismissed Pursuant To Civil Local Rules 41.1(a) And 55.1 (ECF No. 65 ). Signed by Judge Todd W. Robinson on 5/10/2022. (All non-registered users served via U.S. Mail Service)(fth)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 20-CV-611 TWR (DEB) TODD E. VERBICK, an individual, Plaintiff, 12 13 14 ORDER (1) TAKING MATTER UNDER SUBMISSION WITHOUT ORAL ARGUMENT; (2) GRANTING DEFENDANT THE MOVEMENT COMPANY, INC.’S MOTION TO DISMISS WITH PREJUDICE; AND (3) FOR PLAINTIFF TO SHOW CAUSE WHY DEFENDANTS PREDICTUV TECHNOLOGIES, INC. AND PREDICTUV LLC SHOULD NOT BE DISMISSED PURSUANT TO CIVIL LOCAL RULES 41.1(a) AND 55.1 v. THE MOVEMENT TECHNOLOGY COMPANY, INC., a Washington corporation; PREDICTUV TECHNOLOGIES, INC., a Delaware corporation; PREDICTUV LLC, a Delaware limited liability company; KELVIN HILL, an individual; ZSOLT CSENDE, an individual; VIVIEN SZAKACS, an individual; CHRISTOPHER KEIL, an individual; NIALL LAWLOR, an individual; GERRY LAWLOR, an individual; ROB GRINNELL, an individual; and DOES 1 to 100, 15 16 17 18 19 20 21 22 23 24 (ECF No. 65) Defendants. 25 26 Presently before the Court is Defendant The Movement Technology Company, 27 Inc.’s (“TMC”) Motion to Dismiss Plaintiff Todd E. Verbick’s Second Amended 28 Complaint. (“Mot.,” ECF No. 65.) The Court takes this matter under submission without 1 20-CV-611 TWR (DEB) 1 oral argument pursuant to Civil Local Rule 7.1(d)(1).1 Having carefully considered the 2 parties’ arguments, Plaintiff’s Second Amended Complaint (“SAC,” ECF No. 63), and the 3 relevant law, the Court GRANTS WITH PREJUDICE Defendant’s Motion. The Court 4 also ORDERS Plaintiff TO SHOW CAUSE why this action should not be dismissed as 5 to Defendants Predictuv Technologies, Inc. and Predictuv LLC pursuant to Civil Local 6 Rules 41.1(a) and 55.1. 7 BACKGROUND 8 The Court incorporates the factual and procedural background from the Court’s 9 November 19, 2021, Order (1) Granting Motion to Dismiss First Amended Complaint, and 10 (2) Dismissing Without Prejudice Plaintiff’s First Amended Complaint. (See ECF No. 62 11 at 2–4.) 12 LEGAL STANDARD 13 “A Court’s power to exercise jurisdiction over a party is limited by both statutory 14 and constitutional considerations.” In re Packaged Seafood Prod. Antitrust Litig., 338 F. 15 Supp. 3d 1118, 1135 (S.D. Cal. 2018). Constitutionally, “[t]he Due Process Clause of the 16 Fourteenth Amendment constrains a State’s authority to bind a nonresident defendant to a 17 judgment of its courts.” Walden v. Fiore, 571 U.S. 277, 283 (2014) (citing World-Wide 18 Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980)). Statutorily, “California’s long- 19 arm statute allows the exercise of personal jurisdiction to the full extent permissible under 20 the U.S. Constitution.” Daimler AG v. Bauman, 571 U.S. 117, 125 (2014); see also Cal. 21 Civ. Proc. Code § 410.10. 22 The Supreme Court has recognized “two types of personal jurisdiction: ‘general’ 23 (sometimes called ‘all-purpose’) jurisdiction and ‘specific’ (sometimes called ‘case- 24 25 26 27 28 1 Plaintiff contends that he was “forced to wait almost a year from the time of [Defendants’ April 2020] jurisdictional challenge to Plaintiff’s original Complaint for a ruling[,]” which was issued on March 25, 2021. (See ECF No. 66 (“Opp’n”) at 2; see also id. at 7.) Plaintiff, however, fails to take into consideration that this case—along with over 200 others—was not transferred to the undersigned until October 6, 2020. (See ECF No. 41.) The Court also notes that Plaintiff’s lack of compliance with this District’s Civil Local Rules and the undersigned’s Standing Order for Civil Cases has delayed the Court’s ability to rule on the instant Motion. 2 20-CV-611 TWR (DEB) 1 linked’) jurisdiction.” Bristol-Myers Squibb Co. v. Super. Ct., 582 U.S. ___, 137 S. Ct. 2 1773, 1780 (2017) (citing Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 3 915, 919 (2011)). “For an individual, the paradigm forum for the exercise of general 4 jurisdiction is the individual’s domicile; for a corporation, it is an equivalent place, one in 5 which the corporation is fairly regarded as at home.” Id. (quoting Goodyear, 564 U.S. 6 at 924). “A court with general jurisdiction may hear any claim against that defendant, even 7 if all the incidents underlying the claim occurred in a different State.” Id. (emphasis in 8 original) (citing Goodyear, 564 U.S. at 919). 9 For a court to exercise specific jurisdiction, by contrast, “‘the suit’ must ‘aris[e] out 10 of or relat[e] to the defendant's contacts with the forum.’” Id. (alterations and emphasis in 11 original) (quoting Daimler, 571 U.S. at 127 (2014)) (citing Burger King Corp. v. 12 Rudzewicz, 471 U.S. 462, 472–473 (1985); Helicopteros Nacionales de Colombia, S.A. v. 13 Hall, 466 U.S. 408, 414 (1984)). “In other words, there must be ‘an affiliation between the 14 forum and the underlying controversy, principally, [an] activity or an occurrence that takes 15 place in the forum State and is therefore subject to the State’s regulation.’” Id. (alteration 16 in original) (quoting Goodyear, 564 U.S. at 919). “For this reason, ‘specific jurisdiction is 17 confined to adjudication of issues deriving from, or connected with, the very controversy 18 that establishes jurisdiction.’” Id. (quoting Goodyear, 564 U.S. at 919). 19 ANALYSIS 20 TMC moves to dismiss Plaintiff’s Second Amended Complaint for lack of personal 21 jurisdiction pursuant to Rule 12(b)(2). (See Mot. at 1.) Alternatively, TMC requests 22 transfer of this action to the Western District of Washington pursuant to the provisions in 23 the disputed contract and 28 U.S.C. sections 1406 and 1631. (See id.) Plaintiff opposes 24 both requests, asserting that TMC is subject to personal jurisdiction due to it “actively 25 selling convertible securities and seeking high level investors to purchase TMC in 26 California.” (See Opp’n at 5.) 27 /// 28 /// 3 20-CV-611 TWR (DEB) 1 I. Personal Jurisdiction 2 For the reasons discussed previously, (see ECF Nos. 48, 62), Plaintiff again fails to 3 establish personal jurisdiction over Defendant TMC. The redline of the Second Amended 4 Complaint, as compared to the First Amended Complaint, indicates that most of Plaintiff’s 5 “amendments” were decapitalizing Defendants’ names. (Compare ECF No. 70 (redline of 6 SAC), with ECF No. 49 (FAC).) 7 jurisdictional analysis is Plaintiff’s allegation he was also in attendance at the 2017 San 8 Diego meeting with Dean Graziano. (See SAC ¶ 24.) This fact, however, does not impact 9 the Court’s analysis. The only substantive addition that touches the 10 The Court previously found that the nexus between the San Diego meeting and 11 Plaintiff’s purchase of the convertible security was “too attenuated to find that the 12 underlying alleged harm in the instant case arose from TMC’s actions at the initial 13 meeting.” (See ECF No. 62 at 9.) The Court noted in a footnote that the Plaintiff’s absence 14 from the meeting simply “further demonstrat[ed] the attenuation,” (id. (emphasis added)), 15 i.e., it was not the sole, or even main, factor in the Court’s finding that jurisdiction does 16 not exist. Thus, the Court again DISMISSES, this time WITH PREJUDICE, Plaintiff’s 17 Second Amended Complaint against Defendant TMC for lack of personal jurisdiction. 18 II. Transfer of Venue 19 Defendant TMC contends that the Western District of Washington “has personal 20 jurisdiction over TMC and would be a more appropriate venue for the action.” (Mot. at 8.) 21 Plaintiff opposes the transfer, but states that if “any relief is warranted it is only an order 22 transferring the venue of the case.” (See Opp’n at 3–4.) In light of its dismissal of this 23 action as to Defendant TMC, see supra Section I, the Court DENIES AS MOOT TMC’s 24 alternative request for transfer of venue to the Western District of Washington. 25 III. Breach of Contract 26 Although the Court has dismissed Defendant TMC, which does not seek to dismiss 27 Plaintiff’s breach of contract claim, the Court briefly addresses the claim solely to correct 28 an error in Plaintiff’s Opposition. Plaintiff claims that the Court found in its prior dismissal 4 20-CV-611 TWR (DEB) 1 order, (see ECF No. 62), that “Plaintiff’s Breach of Contract cause of action could only be 2 maintained against TMC because it is the only party to the Convertible Security 3 Agreement.” (See Opp’n at 8.) Further, Plaintiff contends that the Court found the breach 4 of contract cause of action against TMC to be viable. (See id. at 3.) 5 The Court, however, made no such findings. TMC did not move to dismiss the 6 breach of contract claim. (See ECF No. 52 at 7.) Instead, Defendants asserted only that 7 the “Individual Defendants Should be Dismissed From the First Cause of Action for Breach 8 of Contract.” (Id.) Because the issue was never briefed, and thus never ruled upon, it is 9 inappropriate for Plaintiff to interpret the lack of dismissal against TMC as any affirmative 10 finding by the Court. 11 IV. Attorneys’ Fees and Costs 12 Defendant TMC requests that, should the Court grant the instant Motion, the Court 13 “entertain a separate attorneys’ fees and costs motion pursuant to the terms of the contract, 14 namely Paragraph 5(d) of the Convertible Security Agreements.” (See Mot. at 8.) This 15 language indicates that Defendant TMC plans to file an independent motion pursuant to 16 Federal Rule of Civil Procedure 54(d).2 Therefore, the Court RESERVES ruling on the 17 fee issue until the requisite motion is filed. 18 /// 19 20 21 22 23 24 25 26 27 28  Federal Rule of Civil Procedure 54(d), regarding attorneys’ fees, states in relevant part: 2 (A) Claim to Be by Motion. A claim for attorney’s fees and related nontaxable expenses must be made by motion . . . . (B) Timing and Contents of the Motion. Unless a statute or a court order provides otherwise, the motion must: (i) be filed no later than 14 days after the entry of judgment; (ii) specify the judgment and the statute, rule, or other grounds entitling the movant to the award; (iii) state the amount sought or provide a fair estimate of it; and (iv) disclose, if the court so orders, the terms of any agreement about fees for the services for which the claim is made. 5 20-CV-611 TWR (DEB) 1 ORDER TO SHOW CAUSE 2 Southern District of California Civil Local Rule 55.1 states: “If plaintiff(s) fail(s) to 3 move for default judgment within thirty (30) days of the entry of a default, the Clerk will 4 prepare, with notice, an order to show cause why the complaint against the defaulted party 5 should not be dismissed.” Further, “[a]ctions or proceedings [that] have been pending in 6 this court for more than six months, without any proceeding or discovery having been taken 7 therein during such period, may, after notice, be dismissed by the Court for want of 8 prosecution.” S.D. Cal. CivLR 41.1(a); see also Fed. R. Civ. P. 41(b) (“If the plaintiff fails 9 to prosecute or to comply with these rules or a court order, a defendant may move to dismiss 10 the action or any claim against it.”); Link v. Wabash R.R. Co., 370 U.S. 626, 633 (1962) 11 (“[A] District Court may dismiss a complaint for failure to prosecute even without 12 affording notice of its intention to do so or providing an adversary hearing before acting.”). 13 On September 2, 2021, Plaintiff filed requests for entry of clerk default against 14 Predictuv Technologies, Inc. and Predictuv LLC, (see ECF Nos. 55, 56), and the Clerk of 15 the Court entered default against both parties on September 8, 2021. (See ECF No. 57.) 16 Although Plaintiff states that he “intends to pursue default judgment against both parties,” 17 (see Opp’n at 3), Plaintiff has taken no action—including moving for default judgment— 18 against Defendants Predictuv Technologies, Inc. and Predictuv LLC for over six months. 19 (See generally Docket.) Therefore, the Court ORDERS Plaintiff TO SHOW CAUSE 20 within fourteen (14) days of the date this Order is docketed why the Complaint against 21 Predictuv Technologies, Inc. and Predictuv LLC should not be dismissed pursuant to Civil 22 Local Rules 41.1(a) and 55.1.  23 CONCLUSION 24 In light of the foregoing, the Court GRANTS Defendant TMC’s Motion and 25 DISMISSES WITH PREJUDICE Plaintiff’s Second Amended Complaint as to 26 Defendant TMC for lack of personal jurisdiction. Accordingly, the Court DENIES AS 27 MOOT Defendant’s alternative request to transfer venue. Finally, the Court ORDERS 28 Plaintiff TO SHOW CAUSE within fourteen (14) days of the electronic docketing of this 6 20-CV-611 TWR (DEB) 1 Order why Defendants Predictuv Technologies, Inc. and Predictuv LLC should not be 2 dismissed pursuant to Civil Local Rules 41.1(a) and 55.1. 3 4 5 6 7 IT IS SO ORDERED. Dated: May 10, 2022 ~,~12,,~ Honorable Todd W. Robinson United Shiites District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 20-CV-611 TWR (DEB)

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