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Sample Nevada Form Motion to Dismiss for Lack of Subject Matter Jurisdiction

Posted by: on Wed, Feb 04, 2015

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D. CHRIS ALBRIGHT, ESQ.

NevadaBar No. 004904

ALBRIGHT, STODDARD,
WARNICK & ALBRIGHT

801
South Rancho Dr., Suite D-4

Las
Vegas,
NV 89106

Tel:  (702) 384-7111

Fax: (702) 384-0605

dca@albrightstoddard.com

Attorneys
for Defendants

UNITED STATES DISTRICT COURT

 

DISTRICT OF NEVADA

MARIO SCIORTINO,
an individual, and UNIQUE RV & AUTO WORKS, INC., dba UNIQUE MOVIE CARS,

 

Plaintiffs,

vs.

DANA MECUM, an
individual; MECUM AUCTION INC., an Illinois corporation dba MECUM AUCTIONS
and/or assumed name THE MECUM COLLECTION, MECUM AUCTION, INC., a Delaware domestic
close corporation, KEN PORTER AUCTION CO., a California corporation, and DOES
I through X, inclusive,

 

Defendants.

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Case
No.

2:10-cv-02254

 

 

 

MOTION TO
DISMISS

 

 

 

COMES NOW all of the Defendants listed in the caption, by and through their undersigned counsel of record, and hereby move this Court for an order dismissing this case for lack of jurisdiction, and, as to Defendant Ken Porter Auction, Co., on the additional
grounds of failure to name the proper party.  This motion is based on the following points and authorities and the declarations of witnesses attached hereto.

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POINTS &
AUTHORITIES IN SUPPORT OF MOTION TO DISMISS

I.          STATEMENT OF FACTS

 

The Plaintiffs’ lawsuit is based upon allegations of breach alleged by Plaintiffs
against Defendants arising out of an “Auction Listing Contract” Plaintiff
alleges is between Plaintiffs and one ore more of the Mecum Auction Defendant
entities, dated May 13, 2010, with respect to an auction to take place in
Monterey, California (see, Plaintiffs’ Complaint at Exhibit 3); an
“Entry Guideline” Agreement executed by Plaintiff Mario Sciortino on May 13,
2010 (Plaintiffs’ Complaint at Exhibit 5); and various facts alleged in
Plaintiffs’ Complaint including with respect to an auction of a vehicle owned
by Plaintiff Sciortino, allegedly through Defendants, which auction occurred in
California in 2010.

Plaintiffs’ Complaint references a meeting held between Plaintiff Mario Sciortino and Defendant Dana Mecum which allegedly occurred in Henderson,
Nevada in 2008.  It is obvious that Plaintiff has referenced
this conversation, at paragraph 16 of the Complaint, in the hopes of reaching
jurisdiction against the Mecum Defendants.  However, it should be noted that whatever meeting may have occurred in 2008 does not appear to have led to any immediate arrangements between the parties, since the written Agreements actually being sued on in this case, and attached to Plaintiffs’ Complaint, were not entered into until May of 2010.  See also, Dana Mecum Declaration, Exhibit A hereto.  Based on documents executed in May of 2010 by
Plaintiff, certain of the Mecum Defendants, based in Illinois,
agreed to sell the Plaintiff Mario Sciortino’s vehicle at an auction to be held
in California.  The California auction was handled by a California
entity known as CHP Enterprises, which does business as Cinema Vehicles, and
which also does business as “Ken Porter Auctions.”  See, Declaration of Ray Claridge
attached as Exhibit B hereto.  However, it must be understood that CHP
Enterprises purchased certain assets, including the right to use the “Ken
Porter” name for its auction business, from Ken Porter Auction Co.  Nevertheless, the actual Ken Porter Auction, Co. entity continues to exist.  That entity, however, which has been named in this lawsuit, had nothing to do with the auction at issue in this suit.  As
explained in Claridge’s Declaration, at ¶¶ 2-5:

2.         My company, CHP Enterprises dba Ken Porter Auctions, is the company which handled the California auction referenced in Plaintiff’s lawsuit known as U.S. District Court Case No. 2:10-cv-02254.

3.    The company which has been named in the Plaintiff’s lawsuit, as Ken Porter Auction Co., a California corporation, is not my company and is not the company which was involved in the
subject California auction described in Plaintiff’s lawsuit.

4.    I bought the right to utilize the “Ken Porter” name, along with certain other assets, from Ken Porter Auction Co., a California corporation, in 2001, from the owner of that
business, Kathleen Porter who, to my knowledge, was the sole shareholder of Ken
Porter Auction Co., a California corporation, at that time.

5.    The entity which has been named as a Defendant in this suit, Ken Porter Auction Co., a California corporation, still exists, notwithstanding the fact that its auction-related assets were bought by me in 2001.  Its continued existence is because it owns certain real property assets which were not part of the asset sale to my company CHP Enterprises, and were not part of the auction business.  Ken Porter Auction Co., a California corporation, however, had nothing
to do with the auction described in Plaintiff’s lawsuit and should be dismissed
from this case.

 

Exhibit B,
¶¶ 2-5.

On the basis of the documents with
respect to this auction, the parties agreed to the transactions subsequently
referenced in the Plaintiffs’ Complaint.

Among the documents and agreements
referenced in Plaintiffs’ Complaint is an “Entry Guideline” Agreement executed
by Plaintiff Sciortino on May 13, 2010 and attached as Exhibit 5 to the
Complaint, which indicates at paragraph 14 as follows:

14.  This Agreement shall be governed by and
interpreted under the laws of the State of Illinois.
By signing this document, both parties agree that any action that must
be taken to enforce the terms of this agreement shall be brought in the Circuit
Court of McHenry County, Illinois.

 

Plaintiffs’ Complaint then contends that an auction occurred on August 14, 2010 in California.

Although the core claims of Plaintiffs’ contentions are somewhat ambiguous, the crux of Plaintiffs’ Complaint appears to be that the Defendants failed to allow bidding for the
subject vehicle beyond a $300,000.00 price, that one of the Mecum Defendants
and/or Ken Porter Auctions, themselves, purchased the subject vehicle rather
than having it purchased by a bidder, and that the Defendants failed to go
through with this purchase transaction, such that the Defendants allegedly
breached various contractual duties arising out of the agreements by Plaintiff
to list the vehicle for sale with the Defendants, at a California auction.

However, Plaintiff has failed to demonstrate that Nevada
has jurisdiction over any of these Defendants.

II.        LEGAL ANALYSIS

  1. A.
    None of the Defendants are Subject to the Jurisdiction of the Nevada Courts,

            as
They Have had no Contacts with Nevada
Sufficient to Confer Jurisdiction

            Over
Such Defendants (and the Wrong Ken Porter Defendant has been

            named).

 

Nevada’s long-arm statute, NRS 14.065, is broadly written to effectuate jurisdiction,
“on any basis not inconsistent with the Constitution of this state or with
the Constitution of the United   States.”  NRS 14.065(1).  Accordingly, Nevada largely looks to the federal courts to determine the extent to which it may exercise jurisdiction over out-of-state defendants.  See, e.g., Casentini v. District Court, 110 Nev. 721, 877 P.2d
535, 539 (1994):  “Nevada has long construed its long-arm statute ‘to be broad enough to reach the outer limits of federal constitutional due process.’  Levison v. District
Court
, 103 Nev. 404, 406, 742 P.2d 1024, 1025 (1987).”

Under those federal constitutional standards, jurisdiction may be exercised based
upon a theory of either general or specific jurisdiction.  As is shown by the Affidavit of Defendant Mecum attached herewith as Exhibit A, and of Ray Claridge attached as Exhibit B, and Kathleen Porter attached as Exhibit C, in this case neither prerequisite is met.

For example, “general jurisdiction [exists] where a defendant is held to
answer in a forum for causes of action unrelated to the defendant’s forum
activities.”  Trump v. District Court, 109 Nev. 687, 699, 857 P.2d 740, 748 (1993) (citations omitted).  “General jurisdiction over the defendant
‘is appropriate where the defendant’s forum activities are so
“substantial” or “continuous and systematic” that [the defendant]
may be deemed present in the forum.'”  Id. (citations omitted).

In this case, as shown by the Declaration of Defendant Dana Mecum attached hereto,
as Exhibit A, Mr. Mecum is a lifelong resident of Illinois and the Mecum
entity Defendants have no employees in Nevada, and no property or on-going presence in Nevada.  Id.  While Mr. Mecum sometimes visits Nevada for tradeshows or
conventions, neither he nor his companies have any continuing presence here.  Id.  The Mecum company Defendants sometimes advertise in national publications that are available in both Nevada and the other states, but do not conduct any targeted advertising in Nevada.  Id.  Accordingly, none of the Mecum Defendants’ contacts with the State of Nevada have been
either “substantial” nor “continuous and systematic,” such that Nevada
certainly has no general jurisdiction over the Defendants.

Similarly, as shown by Exhibit B hereto, the California
entity which handled the auction in California, CHP Enterprises d/b/a Ken Porter Auctions (in addition to not having been properly named herein) has no presence or contacts in Nevada
sufficient to confer jurisdiction by Nevada courts over it.  For example, as Ray
Claridge explains:

6.    To the degree that Plaintiff names my company, CHP Enterprises d/b/a Ken Porter Auctions, as a Defendant in this case, the case should not go forward in Nevada
as I do not believe Nevada has any jurisdiction over CHP Enterprises.

7.    CHP Enterprises does not do business inNevadaand does not own or lease any real property inNevadaand does not have any employees inNevada.

8.    CHP Enterprises does maintain a website,
which can be accessed from Nevada as well as
from all of the other 50 states and throughout the world, but CHP Enterprises
does not do any advertising targeted directly atNevada.

9.    All of my involvement in the auction
described in the Mario Sciortino lawsuit for which this declaration is
provided, was based on communications which I had from California, with Dana
Mecum, in Illinois, and I did not have any communications, or sign any contract
with, or otherwise interact with, call into, or visit, Nevada, at any time,
with respect to the auction at issue in the Mario Sciortino lawsuit.

10.  Based on the foregoing, I had no expectation
that I could end up being sued in Nevada as a result of having arranged with an
Illinois auction company, to perform an auction in California.

 

Exhibit B, at ¶¶ 6-10.

 

Significantly, Nevada also lacks jurisdiction over the entity
which was mistakenly named in this suit, Ken Porter Auction Co., a California
corporation.  As explained in the Declaration of that entity’s President, Kathleen Porter, attached as Exhibit C hereto.

1.         I am the President of Ken Porter Auction Co., a California
corporation.

2.         My company, Ken Porter Auction Co., does not do any auctions any more and has not done so since
2001, when, after my husband’s death, I sold the assets of the company relating
to auctions to CHP Enterprises, which was also sold the right to use the Ken
Porter Auctions name as a d/b/a.
Nevertheless, my company has been named as a defendant in U.S. District
Court Case No. 2:10-cv-02254, with respect to an auction which my company had
nothing to do with.  My company maintained its corporate existence after the asset sale to CHP simply because it owns certain real property in California,
which was not sold as part of the sale of other company assets.  However, my company should not have been named in this suit, since my company was not involved in the auction referred
to in the lawsuit.  Rather, any such auction performed under the Ken Porter name would have been performed by CHP Enterprises, which bought the right to use the “Ken Porter” name for its auctions in 2001.

3.         It should also be noted that my company, Ken Porter Auction Co., a California corporation, does not now and never has done business in Nevada and does not own or lease and has never owned or leased any real property in Nevada and does not have, and has
never had, any employees in Nevada, and does not do any advertising in
Nevada.  Thus, even if there were a legitimate claim of some sort against my company (which there is not), that claim should not be brought in a way that requires my company to appear and defend in Nevada since to my knowledge my company has never done anything that would giveNevada jurisdiction over it.

 

Exhibit
C
,
Kathleen Porter Declaration at ¶¶ 1-3.

(It
might be noted that defense counsel, as well as out-of-state counsel for CHP,
has informed Plaintiffs’ counsel of the foregoing facts as to which entity
should have been named as the entity which has admitted it was the actual
involved California auction company handling the auction.  Defense counsel was not simply asked to
dismiss the inaccurate party from the action without any explanation as to who
should have been named, but was expressly informed of the name of an
alternative defendant who was admitting to being the party that was actually
involved and could be named instead.  However,
Plaintiffs’ counsel declined to agree to amend the complaint to name the right
party or dismiss the incorrectly named party (even without prejudice), without
the necessity of this motion being filed.)

Alternatively, Plaintiff must demonstrate that specific jurisdiction is appropriate.  In order to establish specific jurisdiction over a Defendant:

It must first be established that the defendant “purposefully established ‘minimum
contacts’ in the forum state []” by “conduct in connection with the forum
state . . . such that he [or she] should reasonably anticipate being hailed
into court there.”  Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S. Ct. 2174, 2183, 85 L. Ed. 2d 528 (1985) (citing International Shoe Co. v. Washington, 326 U.S. 310,
316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945), and World-wide Volkswagen Corp
v. Woodson
, 444 U.S. 286, 295, 100 S. Ct. 559, 566, 62 L. Ed. 2d 490
(1980)).  In determining whether an out-of-state defendant can “reasonably anticipate” being hailed into a foreign forum, due process requires  “‘some act by which the defendant purposefully avail[ed] itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.'”  Id., 471 U.S. at 475, 105 S. Ct.
at 2183 (quoting Hansen v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1240, 2 L. Ed. 2d
1283 (1958)).

 

Casentini v. District Court, 110Nev. 721, 877 P.2d 535, 539 (1994).

In this case, Plaintiff’s Complaint alleges that he retained an Illinois entity to
sell a car at a California auction, under an Agreement with an Illinois
forum selection clause.  Although Plaintiff references a 2008 meeting in Nevada,
the actual contracts being sued on were executed in 2010.  Accordingly, the first prerequisite for establishment of specific jurisdiction over these Moving Defendants is not met in this
case.

Likewise, the next two prerequisites, “that the cause of action arose out of or is connected to the acts purposefully engaged in by the defendant in the forum state,” id.,
or that “the assertion of personal jurisdiction . . . comport with
[traditional notions of] ‘fair play and substantial justice,'” (Id., citations
omitted) are likewise not met in this case.
Neither the Mecum Defendants, nor the CHP Enterprises entity which
conducted the California auction (and has not yet been named as a Defendant)
nor the Ken Porter entity which was mistakenly named as a Defendant herein by
Plaintiff, have ever engaged in any activity “in the forum state,” relating
to the subject transaction, and the assertion of personal jurisdiction by
Nevada over these Illinois and California residents for activities having to do
with a California auction would not comport with any notions of “fair play
and substantial justice” but would merely be a means to cause undue
expense and burden to these Defendants, including Defendants who are located in
California and Illinois, one of which Defendants included Illinois forum
selection clauses to avoid being hauled into court in Nevada.  Likewise, assuming the proper California entity is eventually named, that entity took
no actions directed toward the forum state (and the improperly named California
Defendant took no action at all that had anything to do with this case, inNevada or otherwise).

It is overwhelmingly clear in this case that Nevada
has no grounds for asserting either specific or general jurisdiction over any
of the Movants.  Accordingly, this Nevada court lacks jurisdiction over Movants and the Plaintiffs’ Complaint, as against Movants, must be dismissed.

In the present case, although there is one allegation that Dana Mecum visited the Plaintiff in Nevada, this visit apparently took place in 2008, whereas the transaction on which
Plaintiff is suing occurred in California in 2010, based on agreements which were not signed until 2010.  Accordingly, there is no basis for asserting that any visit by Dana Mecum to Henderson, Nevada in 2008, could form the basis for any specific
jurisdiction by the State of Nevada against Dana Mecum with respect to this matter, as that visit did not lead to the present controversy.  Moreover, Dana
Mecum, in his individual capacity, was not a party to either the contracts or
the transaction Plaintiff is suing over.

The Plaintiff has presented no allegations in the Complaint indicating that Dana
Mecum, any of the Mecum entities, CHP Enterprises (not yet named) or Ken Porter
Auction Co. (inaccurately named) has done business in Nevada either generally
for purposes of general jurisdiction or with respect to the California auction
at issue in this litigation for purposes of specific jurisdiction.

Even if the Plaintiffs were to
produce evidence that one or more of the Defendants listed in the Complaint has
ever done business in Nevada, that does not mean that the other Defendants can
be sued in this jurisdiction without the Plaintiff also producing evidence with
respect to each of the Defendants named by the Plaintiffs having engaged in
conduct based upon which Nevada can exercise jurisdiction over each such Defendant.  Thus, even if this court allows this matter
to proceed as to one or more of the Defendants, it must still be dismissed as
to any Defendant over whom Nevada
has no jurisdiction.

  1. B.
    The Plaintiffs’ Suit Necessarily Invokes a Contract Which Contains a Forum Selection Clause
    and, as Such Must be Dismissed in Order to Uphold the Contract.

 

The Plaintiffs’ lawsuit rests, in
part, upon an allegation that duties arose in favor of Plaintiffs and against
the Defendants as the result of the Entry Guideline Agreement referenced at
paragraph 26 of Plaintiffs’ Complaint and attached as Exhibit 5 to Plaintiffs’
Complaint.  The Entry Guideline
Agreement, as set forth above, specifically sets forth a forum selection clause
indicating that any action to be brought thereunder is to be brought inIllinois, and not inNevada.

The Plaintiffs have not demonstrated
that they are entitled to selective enforcement of the agreements which form
the basis of their claims.  Plaintiffs
have no basis for alleging that certain paragraphs and obligations arising
under the agreements which form the basis of their claims must be enforced,
while other paragraphs can be ignored.

As such, if the Plaintiffs’ action
is going to be given credence by this Court, then the Court must also dismiss the
case and require the Plaintiffs to refile in Illinois, on the basis of the forum selection
clause.

  1. C.
    Even if the Court Were to Rule that Nevada had Jurisdiction Over any of the Moving Defendants, the Case Should Still be Transferred to a More Appropriate Venue on the Grounds
    of Forum Non Conveniens.

 

In Federal Court, the common law doctrine of forum non conveniens has been codified
as 28 U.S.C. § 1404(a) which indicates that a civil action may be transferred “[f]or
the convenience of parties and witnesses, in the interest of justice.”

In Federal Courts, a case may not be dismissed on grounds of forum non conveniens unless the alternative forum is located abroad.  Otherwise, Congress’s
codification of the doctrine “provided for transfer, rather than dismissal,
when a sister federal court is the more convenient place for trial of the
action.”  Sinochem International Co. Ltd. v. Malaysia International Shipping Corp. 549 U.S. 422, 127 S.Ct. 1184, 1190-91 (2007).

In the present matter, the auction took place in California
such that deposition testimony from any percipient witnesses will need to be
pursued in states other than Nevada.  None of the Defendants’ principals or
employees reside in Nevada, and the
co-Defendant, Ken Porter Auction Co., is a California entity, as is the entity that
Plaintiff should have named.  Moreover, any
judgment obtained against the Defendants in Nevada will ultimately need to be
localized in another state, such as Illinois, where the Mecum Defendants
reside, or California, where the correct Porter Defendant is located, once
named, in order to enforce the same, since Defendants have no assets in Nevada
and execution proceedings will therefore not be able to commence in Nevada in
any event.              Indeed, under NRS 21.270(b) these Defendants could not
even be required to sit for a judgment debtor’s examination in Nevada since they are
not residents of any county in this state.
Thus, it is difficult to conceive how any of the factors which are to be weighed in
determining whether to transfer a case under 28 USC § 1404 could possibly weigh
in favor of allowing this California auction case, with California and Illinois
Defendants, and an Illinois forum selection clause, to remain pending in
Nevada, and the case should be transferred to a more appropriate forum, such as
a U.S. District Court in Illinois or California.

Accordingly, even if the Court should rule that Nevada has jurisdiction over any one of the moving Defendants on technical grounds, the Court should still transfer this action under 28 USC § 1404 to a different District Court in another State.

It should also be noted that, even
if the present Motion to Dismiss for Lack of Jurisdiction were denied as to one
or more of the Mecum Defendants, it could still be granted as to the Ken Porter
Defendant, or the correct entity doing business under that name once properly
named.  If this occurred it would make
more sense, in the present matter, to have the case adjudicated in a State such
as California, which is where the auction took place and where the witnesses
will thus be available, than in Nevada, especially if any of the Defendants
named or to be named by the Plaintiffs are not subject to jurisdiction in
Nevada in any event.  A forum where all
of the Defendants might be subject to jurisdiction (if such a forum exists)
would be more appropriate than having different suits proceed in different
districts.

III.       CONCLUSION

Plaintiff has named a party, Ken Porter Auction Co., a California corporation,
which is not properly named and should be dismissed from this action, as it was
not involved in the facts or transactions at issue, as referenced in the
allegations of the Complaint, and also on the independent grounds that Nevada has no
jurisdiction over that entity.  Plaintiff has been informed of the correct entity holding the Ken Porter d/b/a for performing auctions, which was actually involved in the subject transaction,
and Plaintiff can name that entity in an appropriate venue.

Even once Plaintiff names the proper party, CHP Enterprises, Inc., a California
corporation, d/b/a Ken Porter Auction, that entity will have grounds to dismiss
the Plaintiff’s Complaint for lack of jurisdiction if it is named in a suit
filed inNevada.

Nevada also lacks jurisdiction over the Mecum Defendants.

Therefore, the entirety of this action should be dismissed for lack of jurisdiction or transferred
to a different district on the grounds of forum non conveniens, under 28 U.S.C. §1404.

Alternatively, if the Court believes that jurisdiction has been established over any of the
Defendants, and that transfer to another venue is not appropriate, the action
should nevertheless be dismissed at least with respect to any Defendants over
whom Nevada has no jurisdiction.

DATED
this_____ day of February, 2011.

ALBRIGHT, STODDARD, WARNICK

&
ALBRIGHT

 

_____________________________________

D. CHRIS ALBRIGHT,
ESQ.   (4904)

801 S. Rancho Drive, Suite D-4

Las Vegas,NV 89106

                                                               Attorneys
for Defendants

 

CERTIFICATE
OF SERVICE

I
hereby certify that service of the foregoing MOTION TO DISMISS OF DEFENDANTS
was made this _____ day of February, 2011, pursuant to N.R.C.P. 5(b)
by depositing a copy of the same in the United
States mail in Las
Vegas, Nevada,
postage prepaid, and addressed to:

 

Paul H. Schofield, Esq.

Schofield Miller Law Firm

8440
W. Lake Mead Blvd, Suite 200

Las
Vegas,
Nevada89128

Attorneys for Plaintiffs

 

 

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah. Our firm’s practice includes a strong emphasis on real estate, secured finance and litigation.

Note: This article, and any other information you obtain at this website, is not offered as legal advice, nor should it be relied upon as such, nor is it a solicitation for legal services. Only a licensed attorney can advise you with respect to your specific legal needs. We welcome your contacting our firm to discuss such representation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

 

 

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah. Our firm’s practice includes a strong emphasis on personal injury accidents. Call us at 702-384-7111.

Note: This article, and any other information you obtain at this website, is not offered as legal advice, nor should it be relied upon as such, nor is it a solicitation for legal services. Only a licensed attorney can advise you with respect to your specific legal needs. We welcome your contacting our firm to discuss such representation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.