Pacific Vibrations, LLC v. Slow Gold Limited et al, No. 3:2022cv01118 - Document 81 (S.D. Cal. 2023)
Court Description: ORDER Granting Defendant Hockridge and Defendant Tucker's Motion to Dismiss for Lack of Jurisdiction { 27 , 46 ); Order Denying Plaintiff's Ex Parte Motion for Leave to File Sur-Reply 43 . Signed by Judge Linda Lopez on 7/6/23. (aas)
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Pacific Vibrations, LLC v. Slow Gold Limited et al Doc. 81 Case 3:22-cv-01118-LL-DDL Document 81 Filed 07/06/23 PageID.1212 Page 1 of 8 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PACIFIC VIBRATIONS, LLC, Plaintiff, 12 13 v. 14 SLOW GOLD LIMITED, et al., 15 Case No.: 22cv1118-LL-DDL ORDER GRANTING DEFENDANT HOCKRIDGE AND DEFENDANT TUCKER’S MOTIONS TO DISMISS FOR LACK OF PERSONAL JURISDICTION Defendants. 16 [ECF Nos. 27, 46] 17 ORDER DENYING PLAINTIFF’S EX PARTE MOTION FOR LEAVE TO FILE SUR-REPLY 18 19 20 [ECF No. 43] 21 22 23 24 Before the Court are two motions to dismiss (ECF Nos. 27, 46) and one ex-parte motion for leave to file a sur-reply in opposition to a motion to dismiss (ECF No. 43). 25 On January 31, 2023, Defendant Bradley John Hockridge (“Hockridge”) filed a 26 Motion to Dismiss for Lack of Personal Jurisdiction and Insufficient Service of Process 27 (“Hockridge’s Motion to Dismiss”). ECF No. 27. Plaintiff Pacific Vibrations, LLC 28 (“Plaintiff”) filed a Response in Opposition to Hockridge’s Motion to Dismiss 1 22cv1118-LL-DDL Dockets.Justia.com Case 3:22-cv-01118-LL-DDL Document 81 Filed 07/06/23 PageID.1213 Page 2 of 8 1 (“Opposition to Hockridge’s Motion”), and Hockridge filed a Reply (“Hockridge’s 2 Reply”). ECF Nos. 37, 42. 3 On March 2, 2023, in connection with Hockridge’s Motion to Dismiss, Plaintiff filed 4 an Ex Parte Motion for Leave to File Sur-Reply (“Plaintiff’s Motion for Sur-Reply”). ECF 5 No. 43. Hockridge filed a Response in Opposition to Plaintiff’s Motion for Sur-Reply 6 (“Opposition to Plaintiff’s Motion for Sur-Reply”). ECF No. 44. 7 Finally, on March 3, 2023, Defendants Cassie Green (“Green”) and Simon Charles 8 Tucker’s (“Tucker”) filed a Motion to Dismiss for Lack of Personal Jurisdiction (“Green 9 and Tucker’s Motion to Dismiss”). ECF No. 46. Plaintiff filed its Response in Opposition 10 (“Opposition to Green and Tucker’s Motion”), ECF No. 55, and Tucker filed a Reply 11 (“Tucker’s Reply”). ECF No. 59. 12 After Green and Tucker’s Motion to Dismiss was filed on March 3, 2023, Plaintiff 13 voluntarily dismissed the action as to Green without prejudice. ECF No. 56. Accordingly, 14 on June 2, 2023, the Court denied as moot Green and Tucker’s Motion to Dismiss with 15 respect to Green only. ECF No. 75. Also, on June 2, 2023, the Court ordered Plaintiff to 16 provide supplemental briefing on how this action “arises out of” the Guaranty despite the 17 lack of any mention of the Guaranty in the Complaint. Id. Plaintiff filed a supplemental 18 brief on June 8, 2023, and Defendants Hockridge and Tucker filed a supplemental reply 19 brief on June 15, 2023. ECF Nos. 79, 80. 20 Upon the Court’s review of the relevant pleadings, and for the reasons set forth 21 below, the Motions to Dismiss of Hockridge and Tucker are GRANTED. Plaintiff’s Ex- 22 Parte Motion for Sur-Reply is DENIED AS MOOT. 23 I. 24 The instant case arises from an exclusive distribution agreement (the “Agreement”) 25 that Plaintiff and Slow Gold allegedly entered into on or about August 2, 2010. ECF No. 26 1-2 ¶¶ 18–19. Plaintiff alleges that the Agreement required Slow Gold to make minimum 27 purchase orders from Plaintiff throughout the term of the Agreement. Id. ¶ 22. Plaintiff 28 alleges that Slow Gold failed to make those orders and that Slow Gold additionally BACKGROUND 2 22cv1118-LL-DDL Case 3:22-cv-01118-LL-DDL Document 81 Filed 07/06/23 PageID.1214 Page 3 of 8 1 undercut Plaintiff by purchasing components directly from Plaintiff’s supplier. Id. ¶¶ 26, 2 28. Plaintiff further alleges that Slow Gold used Plaintiff’s logos and marks without 3 approval or consent. Id. ¶ 29. Plaintiff also alleges that Slow Gold filed certain trademarks 4 in the United Kingdom (“U.K.”) that violated the Agreement and infringed upon Plaintiff’s 5 own trademarks in the United States (“U.S.”) Id. ¶¶ 30, 50. Slow Gold denies these and all 6 other allegations made in Plaintiff’s complaint. ECF No. 5 at 1. 7 Slow Gold is a corporation based in the U.K. ECF No. 1-2 ¶ 2. Hockridge and Tucker 8 are residents of the U.K. ECF No. 1-2 ¶¶ 3–5. Hockridge and Tucker are officers and 9 directors at Slow Gold. ECF Nos. 27-1 ¶ 1, 46-3 ¶ 1. Other than their association with Slow 10 Gold and their vacations in the U.S., Hockridge and Tucker have no personal or business 11 dealings in the U.S. ECF No. 27-1 ¶¶ 4-6; ECF No. 46-1 ¶¶ 6-8; ECF No. 46-3 at ¶¶ 4-6; 12 see also ECF No. 27 at 8, ECF No. 46 at 7–8. Hockridge and Tucker are not parties to the 13 Agreement. ECF No. 1-2 at 19-27. Hockridge and Tucker specially appeared in this action 14 to move for dismissal of the complaint against them for lack of personal jurisdiction. See 15 ECF Nos. 27, 46. 16 Plaintiff contends Hockridge and Tucker executed a personal guaranty dated 17 October 19, 2010 (the “Guaranty”) with respect to the Agreement. ECF No. 37 at 6; see 18 also ECF No. 37-1 ¶¶ 6-7. The Guaranty includes a forum selection clause which states: 19 23 This Guaranty shall be deemed to be made under and shall be governed by the laws of the State of California in all respects, including matters of construction, validity and performance. Any action arising out of this Guaranty Agreement shall be filed in the Orange County Superior Court in the State of California only and all parties consent to the exclusive jurisdiction of the Orange County Superior Court for the State of California. ECF No. 37-8 at 2. The Guaranty is dated “19.10.10” and includes two signatures, which 24 Plaintiff contends are from Hockridge and Tucker. Id. 20 21 22 25 II. 26 A defendant may move to dismiss a complaint for lack of personal jurisdiction under 27 Fed. R. Civ. P. 12(b)(2). When such a motion is brought, the plaintiff bears the burden of 28 demonstrating that a court is properly exercising personal jurisdiction over the defendant. LEGAL STANDARD 3 22cv1118-LL-DDL Case 3:22-cv-01118-LL-DDL Document 81 Filed 07/06/23 PageID.1215 Page 4 of 8 1 See Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004) (citation 2 omitted). 3 When a defendant’s motion is based on written materials rather than an evidentiary 4 hearing, the plaintiff need only make a “prima facie showing of jurisdictional facts to 5 withstand dismissal.” AMA Multimedia, LLC v. Wanat, 970 F.3d 1201, 1207 (9th Cir. 6 2020). “The prima facie standard ‘is not toothless,’ however; [a plaintiff] ‘cannot simply 7 rest on the bare allegations of its complaint.’” Id. (internal citation omitted). That said, 8 “uncontroverted allegations in the complaint must be taken as true.” See Schwarzenegger 9 v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004) (citation omitted). 10 III. 11 The crux of the dispute in the motions at issue is whether the Court has personal 12 jurisdiction over Hockridge and Tucker through the purported Guaranty. Plaintiff argues 13 that Hockridge and Tucker consented to personal jurisdiction because the Guaranty 14 includes a forum selection clause. ECF No. 37 at 5, 10-12; ECF No. 55 at 2, 8-9. Hockridge 15 and Tucker, by contrast, argue that the purported Guaranty is a fraudulent document and 16 that they have never seen nor signed this Guaranty before the commencement of this action. 17 ECF No. 42 at 3-7, ECF No. 59 at 8-11. Hockridge and Tucker also argue the “forum 18 selection clause applies only to ‘any action arising out of this Guaranty Agreement’” and 19 that “the Complaint does not mention, much less predicate any claim on, the Guaranty 20 Agreement.” ECF No. 80 at 2. 21 22 23 DISCUSSION The Court will first address the issue of personal jurisdiction, before addressing the timeliness of the service of process on Hockridge and Tucker. A. Personal Jurisdiction Over Hockridge and Tucker 24 Plaintiff acknowledges that the Complaint does not even mention the Guaranty, but 25 still argues that Tucker and Hockridge’s execution of the Guaranty renders them subject to 26 personal jurisdiction in this action. ECF No. 79 at 4. First, Plaintiff argues that the 27 “Guaranty specifically incorporates the exclusive distribution agreement” and that “the 28 language of the Guaranty essentially places both Hockridge and Tucker in the shoes of 4 22cv1118-LL-DDL Case 3:22-cv-01118-LL-DDL Document 81 Filed 07/06/23 PageID.1216 Page 5 of 8 1 Slow Gold as if they are one and the same.” Id. Second, Plaintiff argues that it alleged in 2 the Complaint that Hockridge and Tucker had sufficient minimum contacts with the forum 3 state and purposefully availed themselves of the benefits of conducting business in 4 California. Id. at 5 (citing Complaint at ¶ 10). 5 Defendants Hockridge and Tucker argue: 6 Plaintiff’s Complaint alleges that Mr. Hockridge and Mr. Tucker ‘have consented to jurisdiction in this court’ through the forum selection clause set out in the Distribution Agreement (the ‘Agreement’). But these individuals are not parties to the Agreement and are not bound by its forum selection clause, or otherwise. Nor does the Complaint competently allege any facts that could support jurisdiction based on these individuals’ ‘minimum contacts’ with this forum. 7 8 9 10 11 12 13 14 With nowhere left to turn, Plaintiff has seized upon the forum selection clause in the Guaranty. But the Complaint does not include any claim based on the Guaranty, nor even mention that instrument. Moreover, the forum selection clause is explicitly limited to claims ‘arising out of the Guaranty.’ ECF No. 80 at 3. 15 Plaintiff’s arguments in support of personal jurisdiction are implausible on their face. 16 Plaintiff has not met its burden to show how this lawsuit “arises out of” the Guaranty. As 17 an initial matter, the Complaint makes no mention of the Guaranty, and the Guaranty is not 18 attached to the Complaint. Meanwhile, the Complaint states that “Defendants are subject 19 to the jurisdiction of this court because they have expressly consented to jurisdiction in this 20 court through a forum selection clause and a choice of law clause in the contract upon 21 which this action is based, attached hereto.” ECF No. 1-2 at ¶ 9. The “contract upon which 22 this action is based” (and which is attached to the complaint) is an exclusive distribution 23 agreement between Plaintiff and Slow Gold, and not the Guaranty. Plaintiff’s belated 24 attempt to argue that “the language of the Guaranty essentially places both Hockridge and 25 Tucker in the shoes of Slow Gold as if they are one and the same” lacks factual and legal 26 support. 27 Additionally, Plaintiff’s boilerplate allegations in the Complaint about Defendants’ 28 purported contacts are not sufficient to establish personal jurisdiction. There are no facts 5 22cv1118-LL-DDL Case 3:22-cv-01118-LL-DDL Document 81 Filed 07/06/23 PageID.1217 Page 6 of 8 1 in the Complaint to support Plaintiff’s barebones legal conclusion that “Defendants have 2 sufficient contacts with the forum state and have purposefully availed themselves of the 3 benefits of conducting business in California.” Id. at ¶ 10. Plaintiff’s boilerplate allegations 4 make no showing that Plaintiff’s claims “arise[] out of or relate[] to the defendant’s forum- 5 related activities,” as required to establish specific jurisdiction. See Picot v. Weston, 780 6 F.3d 1206, 1211 (9th Cir. 2015) (citation omitted). Additionally, the Complaint certainly 7 does not allege contacts so “continuous and systematic” that Defendants Hockridge and 8 Tucker are “essentially at home” in California, as required to establish general jurisdiction. 9 See Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). In short, 10 Plaintiff’s attempt to point to two paragraphs in the Complaint that are legal conclusions 11 with no facts in support thereof fails as a basis for personal jurisdiction. 12 Finally, Plaintiff’s argument that it has made the requisite “prima facie showing that 13 personal jurisdiction exists” in opposition to the motions to dismiss is also without merit. 14 ECF No. 79 at 5. As set forth above, Plaintiff’s allegations about Tucker and Hockridge’s 15 contacts are conclusory at best. Also, the factual allegations to support any finding of 16 “minimum contacts” are not uncontroverted and are contested in Defendant Hockridge and 17 Tucker’s Declarations. ECF No. 27-1; ECF No. 46-3. 18 19 Accordingly, the Court GRANTS Hockridge’s and Tucker’s motions to dismiss as to lack of personal jurisdiction. 20 B. Timeliness of Service of Process on Hockridge and Tucker 21 The Motions to Dismiss of Hockridge and Tucker contain an argument that service 22 on them was untimely because it was made after the 90-day window under Rule 4(m) had 23 elapsed. ECF No. 27 at 7-11; ECF No. 46 at 7. Rule 4(m) provides that if a defendant is 24 not served within 90 days of the complaint’s filing, a court shall dismiss that action without 25 prejudice unless good cause is shown. Fed. R. Civ. Pro. Rule 4(m). In light of the Court’s 26 finding that there is no personal jurisdiction over Defendants Hockridge and Tucker, the 27 Court declines to address this argument. 28 /// 6 22cv1118-LL-DDL Case 3:22-cv-01118-LL-DDL Document 81 Filed 07/06/23 PageID.1218 Page 7 of 8 1 C. Plaintiff’s Motion for Sur-Reply 2 On March 2, 2023, Plaintiff filed an Ex-Parte Motion for Leave to File a Sur-Reply 3 to supplement the record with information showing that the December 2022 date on the 4 email containing the purported Guaranty was a technical error caused by the way the email 5 was extracted. ECF No. 43. In light of the Court’s ruling granting the instant Motions to 6 Dismiss for lack of personal jurisdiction, the Court DENIES AS MOOT Plaintiff’s Ex- 7 Parte Motion for Leave to File a Sur-Reply. 8 D. Leave to Amend 9 Having determined that Plaintiff’s claims against Hockridge and Tucker are subject 10 to dismissal because the Court does not have personal jurisdiction over them, the Court 11 must decide whether leave to amend is warranted. Leave ordinarily must be granted unless 12 one or more of the following factors is present: (1) undue delay, (2) bad faith or dilatory 13 motive, (3) repeated failure to cure deficiencies by amendment, (4) undue prejudice to the 14 opposing party, and (5) futility of the amendment. Foman v. Davis, 371 U.S. 178, 182 15 (1962); see also Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 16 2003). The Court finds that granting an opportunity to amend the Complaint in this case at 17 this procedural posture would impose undue prejudice to Defendants Hockridge and 18 Tucker. The operative Complaint was originally filed over sixteen months ago, in March 19 2022. Defendant Hockridge was not served with the Complaint until January 11, 2023, and 20 Defendant Tucker was not served until February 10, 2023, almost one year after the 21 Complaint was filed. See ECF No. 45 at 4. The Court finds that there was a significant 22 delay in the service of the original Complaint on Hockridge and Tucker. Also, considering 23 that fact discovery in this case is already closed, and that dispositive motions are due on 24 September 1, 2023 (ECF Nos. 11, 78), the Court finds that it would unduly prejudice 25 Defendants Tucker and Hockridge to allow Plaintiff to amend its Complaint in the instant 26 litigation to add a new cause of action under the Guaranty. However, the Court’s Order 27 granting dismissal in this case is without prejudice to Plaintiff pursuing its claims on the 28 7 22cv1118-LL-DDL Case 3:22-cv-01118-LL-DDL Document 81 Filed 07/06/23 PageID.1219 Page 8 of 8 1 Guaranty in a jurisdiction where Defendants Hockridge and Tucker are subject to personal 2 jurisdiction under the Guaranty. 3 IV. 4 For the reasons discussed above, the Court holds as follows: CONCLUSION 5 1. Hockridge’s Motion to Dismiss for lack of personal jurisdiction is 6 GRANTED. The Motion to Dismiss is granted without prejudice to Plaintiff 7 pursuing its claims on the Guaranty in a jurisdiction where Defendant 8 Hockridge is subject to personal jurisdiction under the Guaranty. 9 2. Tucker’s Motion to Dismiss for lack of personal jurisdiction is GRANTED. 10 The Motion to Dismiss is granted without prejudice to Plaintiff pursuing its 11 claims on the Guaranty in a jurisdiction where Defendant Tucker is subject to 12 personal jurisdiction under the Guaranty. 13 14 15 3. Plaintiff’s Ex Parte Motion for Sur-Reply is DENIED as MOOT. IT IS SO ORDERED. Dated: July 6, 2023 16 17 18 19 20 21 22 23 24 25 26 27 28 8 22cv1118-LL-DDL
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