Shimmick Construction Company, Inc. et al v. Sicoma North America, Inc., No. 3:2013cv02700 - Document 66 (S.D. Cal. 2014)
Court Description: ORDER granting Defendant Robert W. Ober and Robert Ober & Associates, Inc.'s 44 Motion to Dismiss for Lack of Jurisdiction. Mr. Ober and ROA are dismissed from this action. Court denies Plaintiff's request for leave to conduct jurisdictional discovery. Signed by Judge Cynthia Bashant on 11/12/2014. (jah)
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Shimmick Construction Company, Inc. et al v. Sicoma North America, Inc. Doc. 66 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SHIMMICK CONSTRUCTION COMPANY, INC./OBAYASHI CORPORATION, 12 13 14 15 Plaintiff, v. OFFICINE MECCANICHE GALLETTI-O.M.G. S.R.L., et al., Case No. 13-cv-2700-BAS(JLB) ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION [ECF No. 44] Defendants. 16 17 18 AND RELATED COUNTERCLAIM 19 20 Pursuant to Federal Rule of Civil Procedure 12(b)(2), Defendants Robert W. 21 Ober and Robert Ober & Associates, Inc. (“ROA”)1 move to dismiss for lack of 22 personal jurisdiction. The remaining defendants have not joined in this motion to 23 dismiss. 24 (“SOJV”) opposes. Plaintiff Shimmick Construction Company Inc./Obayashi Corporation 25 The Court finds this motion suitable for determination on the papers submitted 26 and without oral argument. See Civ. L.R. 7.1(d.1). For the following reasons, the 27 Court GRANTS Defendants’ motion to dismiss. 28 1 For the purposes of this order, the Court will refer to the moving defendants as “Defendants.” -1- 13cv2700 Dockets.Justia.com 1 I. BACKGROUND Plaintiff summarizes the nature of this action as follows in its Consolidated 2 3 Amended Complaint (“CAC”): 4 10 This action arises out of the failure of Robert W. Ober and his corporate entities’ to design and provide a conforming concrete batch plant to SOJV and, further, the Sicomarelated entities’ manufacture, sale, and delivery of defective and nonconforming concrete mixers to SOJV for use in the construction of the San Vincente dam-raise project. The nonconformities of the batch plant Mr. Ober and his corporate entities designed and provided have caused substantial damages to SOJV. Likewise, the defective and nonconforming concrete mixers, which are one component of the batch plant, have caused significant damages to SOJV. Consequently, SOJV seeks monetary and equitable relief. (CAC ¶ 1.) In April 2010, Plaintiff “entered into a contract with the San Diego County 11 Water Authority for the construction of the San Vincente Dam-Raise Project[,]” which 12 required raising the height of the dam by 117 feet. (Id. ¶¶ 45–49.) According to 13 Plaintiff, “[t]o produce a sufficient amount of concrete to timely complete the 14 construction of the dam, SOJV required a batch plant capable of producing at least six 15 compacted cubic yards of [roller-compacted concrete (“RCC”)] output per batch.” (Id. 16 ¶ 49.) 5 6 7 8 9 17 In June 2010, Plaintiff executed the first contract with Mr. Ober, apparently on 18 behalf of Plant Outfitters, LLC, for the purchase of components needed for the batch 19 plant that incorporated a proposal with various obligations related to the mixers among 20 other things. (CAC ¶¶ 74–83; CAC Ex. 3.) Shortly thereafter, Plaintiff executed the 21 second contract “for a comprehensive design package for a customized RCC conveyor 22 system” with “RS1 Holdings, Inc. dba Plant Architects and Plant Outfitters (Plant 23 Architects).” (CAC ¶ 85; CAC Ex. 4.) The Sicoma Defendants—which consist of 24 Officine Meccaniche Galletti-O.M.G. S.r.l. (“OMG”), Societa Italiana Construzione 25 Macchine S.r.l. (“Sicoma Italy”), and Sicoma North America, Inc.—are parties to this 26 action because they allegedly “manufactured the concrete mixers and wear parts for the 27 concrete mixers (i.e., parts that are expected to wear over time due to use)[.]” (CAC 28 ¶¶ 5–15.) -2- 13cv2700 1 On November 11, 2013, Plaintiff commenced this action against Sicoma North 2 America. On February 3, 2014, Plaintiff filed another complaint in the Orange County 3 Superior Court against Mr. Ober, ROA, RS1 Holdings, Plant Architects, LLC, and 4 Plant Outfitters (collectively, “Ober Defendants”), which was eventually removed to 5 federal court.2 6 On June 9, 2014, the Court granted the parties’ joint motion to consolidate the 7 two aforementioned actions with this action as the lead case and later-filed action as 8 the member case. 9 complaint. In responding to the CAC, Sicoma North America filed its answer and 10 counterclaim to the consolidated amended complaint, and OMG and Sicoma Italy also 11 filed their answer. On June 23, 2014, Plaintiff filed its consolidated amended 12 Plaintiff’s consolidated amended complaint asserts causes of action that range 13 from breach of contract, breaches of warranties, and violations of California’s Unfair 14 Competition Law. There are six causes of action asserted against the Ober Defendants 15 and four asserted against the Sicoma Defendants. Defendants now move to dismiss for 16 lack of personal jurisdiction. Plaintiff opposes. 17 18 II. LEGAL STANDARD 19 When the parties dispute whether personal jurisdiction over a foreign defendant 20 is proper, “the plaintiff bears the burden of establishing that jurisdiction exists.” Rios 21 Props. Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002). In ruling on the 22 motion, the “court may consider evidence presented in affidavits to assist in its 23 determination and may order discovery on the jurisdictional issues.” Doe v. Unocal 24 Corp., 248 F.3d 915, 922 (9th Cir. 2001). Where the motion is based on written 25 materials rather than an evidentiary hearing, the plaintiff need only make “a prima facie 26 showing of jurisdictional facts to withstand the motion to dismiss.” Bryton Purcell 27 28 2 Shimmick Construction Company, Inc./Obayashi Corporation v. Ober, No. 14-cv-952BAS(JLB). -3- 13cv2700 1 LLP v. Recordon & Recordon, 575 F.3d 981, 985 (9th Cir. 2009). “In determining 2 whether the plaintiff has met this burden, the Court must take the allegations in the 3 plaintiff’s complaint as true and resolve the disputed jurisdictional facts in the 4 plaintiff’s favor.” Nissan Motor Co., Ltd. v. Nissan Computer Corp., 89 F. Supp. 2d 5 1154, 1158 (C.D. Cal. 2000) (citing Ziegler v. Indian River Cnty., 64 F.3d 470, 473 6 (9th Cir. 1995)). 7 demonstrate facts that if true would support jurisdiction over the defendant.” Unocal, 8 248 F.3d at 922. A prima facie showing means that “the plaintiff need only 9 “The general rule is that personal jurisdiction over a defendant is proper if it is 10 permitted by a long-arm statute and if the exercise of that jurisdiction does not violate 11 federal due process.” Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006). 12 Both the California and federal long-arm statutes require compliance with due-process 13 requirements. Fed. R. Civ. P. 4(k)(2); Pebble Beach, 453 F.3d at 1155; see Holland 14 Am. Line Inc. v. Wärtsilä N. Am., Inc., 485 F.3d 150, 161 (9th Cir. 2007). 15 There are two types of personal jurisdiction: general and specific. General 16 jurisdiction “enables a court to hear cases unrelated to the defendant’s forum 17 activities[.]” Fields v. Sedgewick Assoc. Risks, Ltd., 796 F.2d 299, 301 (9th Cir. 1986). 18 Specific jurisdiction allows the court to exercise jurisdiction over a defendant whose 19 forum-related activities gave rise to the action before the court. See Bancroft & 20 Masters, Inc. v. August Nat’l Inc., 223 F.3d 1082, 1086 (9th Cir. 2000). 21 The Ninth Circuit employs a three-part test to determine whether the defendant’s 22 contacts with the forum state are sufficient to subject it to specific jurisdiction. Ballard 23 v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995). Under the three-part inquiry, specific 24 jurisdiction exists only if: (1) the out-of-state defendant purposefully availed itself of 25 the privilege of conducting activities in the forum, thereby invoking the benefits and 26 protections of the forum’s laws; (2) the cause of action arose out of the defendant’s 27 forum-related activities; and (3) the exercise of jurisdiction is reasonable. Myers v. 28 Bennett Law Offices, 238 F.3d 1068, 1072 (9th Cir. 2001). -4- 13cv2700 1 The plaintiff bears the burden of satisfying the first two prongs of this specific- 2 jurisdiction test. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th 3 Cir. 2004). “If the plaintiff succeeds in satisfying both of the first two prongs, the 4 burden then shifts to the defendant to ‘present a compelling case’ that the exercise of 5 jurisdiction would not be reasonable.” Id. “If any of the three requirements is not 6 satisfied, jurisdiction in the forum would deprive the defendant of due process of law.” 7 Pebble Beach, 453 F.3d at 1155. 8 9 III. DISCUSSION 10 Defendants argue that the Court does not have either general or specific 11 jurisdiction over them. They also argue that they are protected by the fiduciary-shield 12 doctrine and that jurisdiction cannot be conferred through the alter-ego doctrine or 13 under an agency theory. In response, Plaintiff argues that each prong of the specific- 14 jurisdiction test weighs in its favor. It also argues that jurisdiction is proper under the 15 alter-ego doctrine and an agency theory. Plaintiff does not, however, contend that 16 Defendants are subject to general personal jurisdiction. Both parties submit evidence 17 in support of their respective positions. 18 Under the first prong of the specific-jurisdiction test, the plaintiff must establish 19 that the defendant either purposefully availed themselves of the privilege of conducting 20 activities in California, or purposefully directed their activities toward California. 21 Schwarzeneggar, 374 F.3d at 802. “A purposeful availment analysis is most often used 22 in suits sounding in contract.” Id. “A purposeful direction analysis, on the other hand, 23 is most often used in suits sounding in tort.” Id. 24 “A showing that a defendant purposefully availed himself of the privilege of 25 doing business in a forum state typically consists of evidence of the defendant’s actions 26 in the forum, such as executing or performing a contract there.” Schwarzeneggar, 374 27 F.3d at 802. Although contacts must be more than random, fortuitous, or attenuated, 28 contacts that are “isolated” or “sporadic” may support specific jurisdiction if they create -5- 13cv2700 1 a “substantial connection” with the forum. Burger King Corp. v. Rudzewicz, 471 U.S. 2 462, 472-73 (1985). “[I]f the defendant directly solicits business in the forum state, the 3 resulting transactions will probably constitute the deliberate transaction of business 4 invoking the benefits of the forum state’s laws.” Decker Coal Co. v. Commonwealth 5 Edison Co., 805 F.2d 834, 840 (9th Cir. 1986) (citing Gates Learjet Corp. v. Jensen, 6 743 F.2d 1325, 1331 (9th Cir. 1984) (solicitation of distributorship agreement); 7 Taubler v. Giraud, 655 F.2d 991, 994 (9th Cir. 1981) (solicitation of California market 8 by sending of wine samples)). “Similarly, conducting contract negotiations in the 9 forum state will probably qualify as an invocation of the forum law’s benefits and 10 protections.” Id. 11 12 A. Fiduciary Shield Doctrine 13 Under the fiduciary-shield doctrine, “a person’s mere association with a 14 corporation that causes injury in the forum state is not sufficient in itself to permit that 15 forum to assert jurisdiction over the person.” Davis v. Metro Prods., Inc., 885 F.2d 16 515, 520 (9th Cir. 1989); see also Advanced Skin & Hair, Inc. v. Bancroft, 858 F. Supp. 17 2d 1084, 1089-90 (C.D. Cal. 2012). In other words, “[t]he mere fact that a corporation 18 is subject to local jurisdiction does not necessarily mean its nonresident officers, 19 directors, agents, and employees are suable locally as well.” Colt Studio, Inc. v. 20 Badpuppy Enter., 75 F. Supp. 2d 1104, 1111 (C.D. Cal. 1999). “Rather, there must be 21 a reason for the court to disregard the corporate form.” Davis, 885 F.2d at 520. 22 Though there is ample legal authority supporting the proposition that the 23 fiduciary-shield doctrine does not protect corporate officers who engage in tortious 24 conduct, the same cannot be said for claims for contractual breaches. See Calder v. 25 Jones, 465 U.S. 783, 790 (1984) (finding jurisdiction over individual employees of a 26 corporation who were “primary participants in an alleged [tortious] wrongdoing 27 intentionally directed at [the forum state]”); Seagate Tech. v. A.J. Kogyo Co., 219 Cal. 28 App. 3d 696, 703 (1990) (agreeing with rule that “where corporate officers are alleged -6- 13cv2700 1 to have engaged in intentional tortious activity, directed at a California resident, 2 jurisdiction over them is proper”); Taylor-Rush v. Multitech Corp., 217 Cal. App. 3d 3 103, 118 (1990) (agreeing with principle that “intentional tortfeasors should be 4 prepared to defend themselves in any jurisdiction where they direct their alleged 5 tortious activity”); see also Dish Network L.L.C. v. Vicxon Corp., 923 F. Supp. 2d 6 1259, 1264 (S.D. Cal. 2013) (Lorenz, J.) (finding chief executive officer who was 7 “primary participant” and “moving force” behind corporation’s alleged copyright- 8 infringing activity is not protected by the fiduciary-shield doctrine). In fact, the 9 Supreme Court has held that an out-of-state party does not purposefully avail itself of 10 a forum merely by entering into a contract with a forum resident, from which it may be 11 inferred that corporate officers are at least initially afforded some protection under the 12 fiduciary-shield doctrine in actions sounding in contract. See Burger King, 471 U.S. 13 at 478. 14 That said, the Supreme Court has also “long ago rejected the notion that personal 15 jurisdiction might turn on ‘mechanical’ tests, or on ‘conceptualistic . . . theories of the 16 place of contracting or of performance.” Burger King, 471 U.S. at 478-79 (citations 17 omitted). Instead, it has “emphasized the need for a ‘highly realistic’ approach that 18 recognizes that a ‘contract’ is ‘ordinarily but an intermediate step serving to tie up the 19 business transaction.’” Id. at 479. “It is these factors—prior negotiations and 20 contemplated future consequences, along with the terms of the contract and the parties’ 21 actual course of dealing—that must be evaluated in determining whether the defendant 22 purposefully established minimum contacts within the forum.” Id. 23 Plaintiff urges the Court to engage in Burger King’s analysis for determining 24 whether a court may exercise jurisdiction over a defendant through a contractual 25 relationship. (Pl.’s Opp’n 4:1–23.) However, the mandated minimum-contacts 26 analysis would only resolve whether the Court properly exercises jurisdiction over the 27 signatories to the contract. There is no challenge as to the exercise of jurisdiction over 28 RS1 Holdings, Plant Architects, and Plant Outfitters, which are the signatories to the -7- 13cv2700 1 contracts at issue in this action; had Mr. Ober been the signatory on the contracts in his 2 individual capacity, then it is possible that the exercise of jurisdiction over Mr. Ober 3 would have been appropriate under Burger King. 4 Consequently, before the Court engages in the minimum-contacts analysis as to 5 Defendants, it must first determine whether Plaintiff may pierce the corporate veil. See 471 U.S. at 478-79. 6 As Defendants astutely point out, Plaintiff fails to provide any legal authority 7 applying the fiduciary-shield doctrine to contract disputes to determine personal 8 jurisdiction. Plaintiff altogether skips discussing this issue—beyond making the 9 conclusory assertion that “in the Ninth Circuit, the fiduciary-shield doctrine no longer 10 has force”—and operates under the presumption that the distinction between actions 11 sounding in tort as opposed to those sounding in contract is not relevant for 12 jurisdictional purposes. (Pl.’s Opp’n 6:4–18.) 13 In fact, Plaintiff references the fiduciary-shield doctrine exactly one time in its 14 opposition brief on page 6, line 17, citing Blinglet, Inc. v. Amber Alert Safety Ctrs., 15 Inc., No. C 09-05156, 2010 WL 532388, at *1 (N.D. Cal. Feb. 6, 2010). However, 16 Blinglet involved allegations of fraud in the inducement. Id. Such tortious conduct in 17 Blinglet was correctly not afforded the protection of the fiduciary-shield doctrine, and 18 is consistent with legal authority that does not allow corporate officers to hide behind 19 the doctrine for their tortious conduct. See, e.g., Calder, 465 U.S. at 790. 20 The case law demonstrates that Plaintiff’s presumption is mistaken. Therefore, 21 without more, and unless some exception applies, Plaintiff fails to make a prima facie 22 showing that the fiduciary-shield doctrine does not protect Defendants. 23 24 B. Piercing the Corporate Veil 25 “Because the corporate form serves as a shield for the individuals involved for 26 purposes of liability as well as jurisdiction, many courts search for reasons to ‘pierce 27 the corporate veil’ in jurisdictional contexts parallel to those used in liability contexts.” 28 Davis, 885 F.2d at 520. “[T]he corporate form may be ignored (1) where the -8- 13cv2700 1 corporation is the agent or alter ego of the individual defendant, or (2) where a 2 corporate officer or director authorizes, directs, or participates in tortious conduct.” 3 Intersource OEM, Inc. v. SV Sound, LLC, No. 2:14-cv-01219-ODW(SSx), 2014 WL 4 3444720, at *4 (C.D. Cal. July 11, 2014) (citations omitted) (citing Transgo, Inc. v. 5 AJAC Transmission Parts Corp., 768 F.2d 1001, 1021 (9th Cir. 1985); Flynn Distrib. 6 Co., Inc. v. Harvey, 734 F.2d 1389, 1393 (9th Cir. 1984)); see also Coastal Abstract 7 Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 734 (9th Cir. 1999) (corporate 8 officers cannot “hide behind the corporation where [the officer was] an actual 9 participant in the tort.”). 10 Because the second means of piercing the corporate veil is limited to actions 11 sounding in tort, it is not relevant to the jurisdictional analysis in this action. That said, 12 if Defendants qualify as alter egos or agents of the other Ober Defendants, then 13 Defendants may be subject to this Court’s jurisdiction. See Intersource OEM, 2014 14 WL 3444720, at *4. It is under the alter-ego and agency theories that Plaintiff suggests 15 an exception to the fiduciary-shield doctrine applies. (Pl.’s Opp’n 16:22–23:28.) 16 17 1. Alter Ego 18 “To apply the alter ego doctrine, the court must determine (1) that there is such 19 unity of interest and ownership that the separate personalities of the corporation and 20 the individuals no longer exist and (2) that failure to disregard the corporation would 21 result in fraud or injustice.” Flynn, 734 F.2d at 1393 (emphasis added) (citing Watson 22 v. Commonwealth Ins. Co., 8 Cal. 2d 61, 68 (1936)). In other words, “to avail [itself] 23 of the doctrine, plaintiff must allege two elements: First, there must be such a unity of 24 interest and ownership between the corporation and its equitable owner that the 25 separate personalities of the corporation and the shareholder do not in reality exist. 26 Second, there must be an inequitable result if the acts in question are treated as those 27 of the corporation alone.” Wehlage v. EmpRes Healthcare, Inc., 791 F. Supp. 2d 774, 28 782 (N.D. Cal. 2011) (citing Sonora Diamond Corp. v. Superior Court, 83 Cal. App. -9- 13cv2700 1 4th 523, 526 (2000)). Mere “[c]onclusory allegations of alter-ego status are not 2 sufficient.” Monaco v. Liberty Life Assurance Co., No. C06-07021, 2007 WL 3 1140460, at *4 (N.D. Cal. Apr. 17, 2007). That said, only a prima facie showing of 4 jurisdiction over the defendants is necessary to pierce the corporate veil. Flynn, 734 5 F.2d at 1393-94. 6 Beginning with the second prong, Plaintiff contends that if certain allegations 7 are proven, “these allegations would support a finding that there would be an 8 inequitable result if Mr. Ober and the Ober Entities are not treated as one single entity 9 because the allegations indicate that the true corporate structure of the Ober Entities 10 was concealed from SOJV.” (Pl.’s Opp’n 20:24–21:14.) The allegations that Plaintiff 11 refers to are: (1) Mr. Ober represented himself as the president of ROA; and (2) Mr. 12 Ober presented Plaintiff with a proposal for a batch plant, which has several entities 13 listed on the proposal’s letterhead, signed the proposal on behalf of “Plant Architects 14 + Plant Outfitters,” and “the proposal was incorporated into the First Contract.” (Id.) 15 It is unclear how these allegations, if proven, would suggest that any injustice would 16 fall upon Plaintiff. See NuCal Foods, Inc. v. Quality Egg LLC, 887 F. Supp. 2d 977, 17 992 (E.D. Cal. 2012) (“To prove injustice, the plaintiff must be more than just a 18 creditor attempting to recover on unsatisfied debts; it must show that a defendant’s 19 conduct amounted to bad faith”). Rather, these allegations only bolster the idea that 20 Mr. Ober was acting his capacity as an officer of the other Ober Defendants when 21 negotiating and executing the contracts with Plaintiff. 22 Plaintiff presents the same defective reasoning regarding the circumstances 23 leading to the execution of the Second Contract. (Pl.’s Opp’n 21:16–22:9.) However, 24 just as circumstances regarding the First Contract fail to demonstrate any injustice, so 25 do the circumstances regarding the Second Contract. See NuCal Foods, 887 F. Supp. 26 2d at 992. 27 // 28 // - 10 - 13cv2700 1 Though a defendant’s lack of sufficient corporate funds may support the idea that 2 a plaintiff would suffer from an injustice, Plaintiff only directs the Court’s attention to 3 a single conclusory allegation in the CAC that Plant Outfitters is “insolvent or close to 4 insolvency.” (Pl.’s Opp’n 22:18–23:2 (citing CAC ¶ 38).) That allegation is the only 5 one in the CAC that mentions possible insolvency of any defendant. In other words, 6 there are no allegations suggesting insolvency or undercapitalization of the remaining 7 Ober Defendants. Defendants rebut Plaintiff’s assertion with evidence. Specifically, 8 they provide evidence in the form of Mr. Ober’s declaration, which states that both 9 Plant Architects and Plant Outfitters are “adequately capitalized” and have “never 10 transferred any assets to any other entity that left [themselves] undercapitalized.” 11 (Ober Decl. ¶¶ 11, 13.) Thus, even if the Court accepts the conclusory allegation that 12 Plant Outfitters is insolvent, Plaintiff could seek redress from RS1 Holding and Plant 13 Architects for any alleged injury, the adequacy of capitalization for the latter being 14 undisputed. 15 Finally, Plaintiff argues that it would suffer from an injustice “if the acts of RS1, 16 Plant Architects, and Plant Outfitters are treated as theirs alone because such 17 recognition ‘would allow Mr. Ober to avoid his liability on the two contracts he 18 executed with SOJV through the use of the corporate fiction for that purpose.’” (Pl.’s 19 Opp’n 22:10–17.) That assertion is supported only by a single conclusory allegation 20 in the CAC that holds no weight in this jurisdictional analysis and is wholly inadequate. 21 See Monaco, 2007 WL 1140460, at *4. Moreover, Plaintiff’s argument does not 22 suggest—even at the prima facie level—that it would suffer an injustice. Contract 23 damages aim to make a contracting party whole following a contract’s breach. 24 Bramalea Cal., Inc. v. Reliable Interiors, Inc., 119 Cal. App. 4th 468, 473 (2004). 25 There are no facts before the Court that suggest Plaintiff cannot be made whole through 26 a lawsuit against RS1 Holdings, Plant Architects, and Plant Outfitters without the 27 participation of Mr. Ober and ROA in this action. 28 // - 11 - 13cv2700 1 In sum, Plaintiff fails to make a prima facie showing satisfying the second prong 2 of the alter-ego doctrine. See Flynn, 734 F.2d at 1393. Furthermore, because Plaintiff 3 fails to establish the second prong of the alter-ego analysis, the Court need not address 4 the first prong to determine whether there is such unity of interest and ownership that 5 the separate personalities of the corporation and the individuals no longer exist. See 6 id. 7 2. 8 Agency 9 “The agency test is satisfied by a showing that the subsidiary functions as the 10 parent corporation’s representative in that it performs services that are ‘sufficiently 11 important to the foreign corporation that if it did not have a representative to perform 12 them, the corporation’s own officials would undertake to perform substantially similar 13 services.” Unocal, 248 F.3d at 928 (quoting Chan v. Soc’y Expeditions, Inc., 39 F.3d 14 1398, 1405 (9th Cir. 1994)). “[C]ourts have permitted the imputation of contracts 15 where the subsidiary was ‘either established for, or is engaged in, activities that, but for 16 the existence of the subsidiary, the parent would have to undertake itself.” Chan, 39 17 F.3d at 1405 n.9 (citing Gallagher v. Mazda Motor of Am., Inc., 781 F. Supp. 1079, 18 1083 (E.D. Pa. 1992); Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 19 422-23 (9th Cir. 1977)). The ultimate question is “whether, in the truest sense, the 20 subsidiaries’ presence substitutes for the presence of the parent.” Unocal, 248 F.3d at 21 929 (quoting Gallagher, 781 F. Supp. at 1084). 22 23 The entirety of Plaintiff’s conclusory argument invoking the agency test is the following: 26 In addition to satisfying the alter ego test, SOJV has also satisfied the agency test, which supports this Court finding that the contacts to support the exercise of personal jurisdiction over the parent exist by virtue of its relationship with a subsidiary that has continual operations in the forum. 27 (Pl.’s Opp’n 23:13–28.) Defendants respond by contending that “Plaintiff vaguely 28 references the same conclusions in support of its alter ego argument without additional 24 25 - 12 - 13cv2700 1 factual or legal support.” (Defs.’ Reply 9:8–20.) 2 Plaintiff simply fails to identify any facts either alleged in the CAC or contained 3 in the evidence submitted suggesting that Defendants acted in a manner substituting 4 their presence for the presence of the other Ober Defendants. See Unocal, 248 F.3d at 5 929. Thus, the one-sentence argument is wholly inadequate to impute the other Ober 6 Defendants’ jurisdiction to Mr. Ober and ROA under an agency theory. 7 8 IV. CONCLUSION & ORDER 9 Because Plaintiff fails to successfully assert any exception, Defendants are 10 protected by the fiduciary-shield doctrine. See Calder, 465 U.S. at 790. In making that 11 determination, the Court also concludes that Plaintiff fails to make a prima facie 12 showing that Defendants have purposefully availed themselves of the privilege of 13 conducting activities in California, or purposefully directed their activities toward 14 California in a manner subjecting them to this Court’s jurisdiction. 15 Schwarzeneggar, 374 F.3d at 802. Consequently, the Court need not address whether 16 this action arises from forum-related activities or whether the exercise of jurisdiction 17 would be reasonable. See Myers, 238 F.3d at 1072. See 18 In light of the foregoing, the Court GRANTS Defendants’ motion to dismiss for 19 lack of personal jurisdiction, and DISMISSES Mr. Ober and ROA from this action. 20 Furthermore, in exercising its discretion, the Court also DENIES Plaintiff’s request for 21 leave to conduct jurisdictional discovery. 22 IT IS SO ORDERED. 23 24 DATED: November 12, 2014 25 Hon. Cynthia Bashant United States District Judge 26 27 28 - 13 - 13cv2700
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