Tracy et al v. CEO, Successor, et al.,

Filing 102

ORDER. IT IS THEREFORE ORDERED that defendants 8 motion to dismiss is GRANTED. Defendants Jocelyn Corbett, Esq.; Dapeer, Rosenblit & Litvak, LLP; Nicole M. Hoffman, Esq.; Nicole L. Glowin, Esq.; and Madeline K. Lee, Esq. are DISMISSED as defendants in this action. Signed by Judge Larry R. Hicks on 9/28/2011. (Copies have been distributed pursuant to the NEF - PM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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LINWOOD EDWARD TRACY, JR.; et al.,

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Plaintiffs,

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v.

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CEO, SUCCESSOR FOR DEUTSCHE
NATIONAL TRUST COMPANY; et al.,

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Defendants.
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3:11-cv-0436-LRH-VPC
ORDER

Before the court is defendants Jocelyn Corbett, Esq. (“Corbett”) and the law firm of Dapeer,

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Rosenblit & Litvak, LLP’s (“DRL”) motion to dismiss for lack of personal jurisdiction (Doc. #81)

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to which individual defendants Nicole M. Hoffman, Esq. (“Hoffman”); Nicole L. Glowin, Esq.

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(“Glowin”); and Madeline K. Lee, Esq. (“Lee”) joined (Doc. #12). Plaintiff Linwood Edward

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Tracy, Jr. (“Tracy”) filed an opposition to the motion (Doc. #13) to which moving defendants

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replied (Doc. #16).

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I.

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Facts and Background
At its core, this is a wrongful foreclosure and wrongful taxation action. Plaintiff William

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Gerald Filion (“Filion”) owned real property in California which was subject to state and county tax

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assessments. The tax assessments went unpaid and the property was subsequently foreclosed upon.

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On June 21, 2011, plaintiffs filed a complaint against defendants alleging violations of their

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Refers to the court’s docket number.

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First and Fourth Amendment rights. See Doc. #1. Specifically, plaintiffs challenge the tax

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assessments and foreclosure claiming that the property belonged to a non-profit religious

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organization. Thereafter, moving defendants filed the present motion to dismiss for lack of personal

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jurisdiction. Doc. #8.

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II.

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Legal Standard
Where a defendant challenges the exercise of personal jurisdiction, the plaintiff bears the

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burden of demonstrating that the court has jurisdiction over the defendant. Schwarzenegger v. Fred

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Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). Where, as here, the court receives only

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written materials, the plaintiff need only make a prima facie showing through its pleadings and

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affidavits that the exercise of personal jurisdiction over the defendant is proper. Id. Although a

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plaintiff cannot simply rest on the bare allegations of its complaint, the uncontroverted allegations

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in the plaintiff’s complaint are taken as true, and conflicts between the facts contained in the

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parties’ affidavits are resolved in the plaintiff’s favor. Id.

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To establish personal jurisdiction over a nonresident defendant, that defendant must have

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sufficient “minimum contacts with Nevada ‘such that the maintenance of the suit does not offend

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traditional notions of fair play and substantial justice.’” Id. (quoting Int’l Shoe Co. v. Washington,

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326 U.S. 310, 316 (1945)). Personal jurisdiction over a nonresident defendant may be either general

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or specific. Helicopteros Nationales de Columbia S.A. v. Hall, 466 U.S. 408, 414 nn. 8-9 (1984).

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For a court to exercise general jurisdiction over a defendant, that defendant’s activities in the forum

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must be either “substantial” or “continuous and systematic,” such that the defendant’s activities

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approach a “physical presence” in the forum. Bancroft & Masters, Inc. v. Augusta Nat’l, Inc., 223

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F.3d 1082, 1086 (9th Cir. 2000).

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In comparison, for a court to exercise specific jurisdiction the action must arise out of

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defendant’s forum-related activities. Bancroft, 223 F.3d at 1086. Courts use a three-part test to

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determine whether the exercise of specific jurisdiction relating to a defendant’s forum-related

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activities satisfies constitutional due process: (1) the non-resident defendant must purposefully
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direct his activities or consummate some transaction with the forum or perform some act by which

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he purposefully avails himself of the privilege of conducting activities in the forum; (2) the claim

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must be one which arises out of, or relates to the defendant’s forum-related activities; and (3) the

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exercise of jurisdiction must comport with fair play and substantial justice. Brayton Purcell LLP v.

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Recordon & Recordon, 606 F.3d 1124, 1128 (9th Cir. 2010).

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III.

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Discussion
In their motion to dismiss, moving defendants contend that they are not residents of Nevada

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and do not have sufficient minimum contacts with Nevada for the court to exercise personal

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jurisdiction over them. See Doc. #8.

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The court has reviewed the documents and pleadings on file in this matter and agrees. First,

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it is undisputed that defendants Corbett, DRL, Hoffman, Glowin and Lee are not residents of the

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State of Nevada nor have they ever conducted business in the state. Second, it is undisputed that

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moving defendants took no specific action in the state of Nevada. The property at issue in this

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matter is located in southern California and all tax assessments and foreclosure actions took place

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there. Thus, the court finds that there is no basis to exercise either general or specific personal

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jurisdiction over moving defendants. Accordingly, the court shall grant their motion to dismiss.

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IT IS THEREFORE ORDERED that defendants’ motion to dismiss (Doc. #8) is

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GRANTED. Defendants Jocelyn Corbett, Esq.; Dapeer, Rosenblit & Litvak, LLP; Nicole M.

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Hoffman, Esq.; Nicole L. Glowin, Esq.; and Madeline K. Lee, Esq. are DISMISSED as defendants

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in this action.

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IT IS SO ORDERED.

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DATED this 28th day of September, 2011.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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