Mitan v. Feeney

• Decision Date: 18 July 2007
• Docket Number: No. CV 07-3086SVWJWJX.,CV 07-3086SVWJWJX.
• Citation: 497 F.Supp.2d 1113
• Court: U.S. District Court — Central District of California
• Parties: Kenneth MITAN, Plaintiff, v. Doug FEENEY, et al., Defendants.

Page 1113

497 F.Supp.2d 1113

Kenneth MITAN, Plaintiff, v. Doug FEENEY, et al., Defendants.

No. CV 07-3086SVWJWJX.

United States District Court, C.D. California.

July 18, 2007.

Kenneth Mitan, Pro se.

James M. Burgess, Erica Suzanne Alterwitz, Sheppard Mullin Richter & Hampton LLP, Los Angeles, CA, for Doreen Feeney and Doug Feeney.

E. Scott Palmer, Adam E. Chaikin, Palmer Lombardi and Donohue, Los Angeles, CA, for American Express Corporation.

ORDER GRANTING DEFENDANT FEENEYS' MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION [9]; ORDER DENYING AS MOOT DEFENDANT FEENEYS' REQUEST FOR CHANGE OF VENUE [9]; ORDER GRANTING DEFENDANT AMERICAN EXPRESS'S MOTION TO DISMISS PURSUANT TO RULE 12(B)(6) [17]; ORDER DENYING AS MOOT DEFENDANT AMERICAN EXPRESS'S MOTION TO STRIKE [15]

WILSON, District Judge.

I. INTRODUCTION

Plaintiff Kenneth Mitan ("Plaintiff' or "Mitan") filed this suit against Defendants Doug and Doreen Feeney ("the Feeneys") and Defendant American Express Travel Related Services Company, Inc. ("American Express") in Los Angeles County Superior Court on January 12, 2007. Plaintiff, now proceeding pro se, alleges causes of action against the Feeneys and American Express for intentional infliction of emotional distress ("IIED") and negligent infliction of emotional distress ("NIED"). American Express filed a notice of removal on May 10, 2007 and the Feeneys joined in the removal.

On May 14, 2007, the Feeneys moved to dismiss the complaint for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2), or, in the alternative, for change of venue to the Eastern District of Arkansas under 28 U.S.C. § 1404(a). On May 15, 2007 American Express moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. American Express also moved to strike portions of the complaint under Federal Rule of Civil Procedure 12(f). Plaintiff filed an untimely opposition to these motions on June 14, 2007. Defendant American Express filed a reply on June 15, 2007 and the Feeneys filed a reply on July 3, 2007.

For the reasons discussed below, the Court GRANTS the Feeneys' Motion to Dismiss for lack of personal jurisdiction, DENIES as moot the Feeneys' Request for Change of Venue, GRANTS American Express' 12(b)(6) Motion to Dismiss, and DENIES as moot American Express' Motion to Strike.

II. FACTUAL BACKGROUND

A. Factual Allegations in the Complaint

Plaintiff alleges that he is a resident of California, that the Feeneys are residents of Arkansas, and that American Express is a New York corporation doing business in California. (Compl. ¶¶ 1-5.) Plaintiff claims that the Feeneys sold him their business, Prime Line, Inc. ("Prime Line"), in November 2004. (Compl. ¶ 8.) Plaintiff alleges that he subsequently applied for and obtained an American Express card in the name of Prime Line, pursuant to the purchase agreement. (Compl. ¶ 10.) Plaintiff alleges that the Feeneys then "wrongfully attempted to regain control" of Prime Line and "commenced a pattern of extreme, outrageous conduct intended to harass, injure, and annoy the Plaintiff." (Compl. ¶ 13.) This conduct allegedly included "false and fraudulent communications and/or representations to Defendant American Express that Plaintiff had unlawfully or illegally obtained credit cards from Defendant American Express." (Compl. ¶ 13.) Plaintiff further alleges that the Feeneys "solicited Defendant American Express to participate in such outrageous conduct" and that the Feeneys and American Express intimidated Plaintiff accused him of fraud and embezzlement, made unfounded reports to authorities, confiscated his personal property and medicine, and cancelled his credit. (Compl. ¶ 14.) Plaintiff alleges that this conduct caused him to lose his entire investment in Prime Line and caused him to suffer emotional distress. (Compl. ¶¶ 16, 17.)

Plaintiff alleges that Defendants intended to cause Plaintiff to lose his investment and intended to cause Plaintiff extreme emotional distress, "or otherwise hold Plaintiff to public scorn and ridicule." (Compl. ¶¶ 15, 16.) He alleges that he suffered emotional distress including "fright, shock, nervousness, anxiety, worry, grief, mortification, humiliation, embarrassment, loss of income and loss of business investment." (Compl. ¶ 17.) Plaintiff alleges that the conduct of Defendants was "willful, wanton, and intentional and designed to permanently injure Plaintiff." (Compl. ¶ 18.)

B. The Feeney's Submissions Concerning Personal Jurisdiction

Doug and Doreen Feeney each have submitted a declaration in support of their Motion to Dismiss. According to the Feeneys, the following is true: the Feeneys are residents of Arkansas; they have never been residents of California; they do not own any real or personal property in California, and they do not lease, rent or otherwise possess any real or personal property in California; they do not pay any taxes in California and maintain no bank accounts in California; Prime Line is not registered to do business in California and does not have a registered agent for service of process in California; the Feeneys and Prime Line do not and have never maintained an office in California; the Feeneys and Prime Line do not regularly buy goods or services from residents of California; they do not regularly do or solicit business in California or engage in any advertising in California; and neither Feeney has traveled to California in more than ten years. (Doug Feeney Decl. ¶¶ 2-14; Doreen Feeney Decl. ¶¶ 2-14.)

With respect to the allegations in Plaintiff's complaint, the Feeneys state that all transactions and interactions with Plaintiff occurred in Arkansas. (Doug Feeney Decl. ¶ 15; Doreen Feeney Decl. ¶ 15.) They claim they were not aware Plaintiff resided in California and that Plaintiff represented to the Feeneys that his name was John Smith. (Doug Feeney Decl. ¶ 15; Doreen Feeney Decl. ¶ 15.) Doreen Feeney asserts that she had no contact with American Express and no contact with any California entity regarding Plaintiff. (Doreen Feeney Decl. ¶¶ 16, 17.) Doug Feeney states that he only contacted the Arkansas office of American Express about Plaintiff and never contacted American Express in California. (Doug Feeney Decl. ¶ 16.) Doug Feeney asserts that the only contact he had with California relating to Plaintiff was initiated by the Redondo Beach police after Plaintiff had been arrested. (Doug Feeney Decl. ¶ 17.) Doug Feeney also asserts that he did not know John Smith was Kenneth Mitan until Redondo Beach police told him. (Doug Feeney Decl. ¶ 17.)

C. Requests for Judicial Notice

Plaintiff and the Feeneys have been involved in Prime Line-related litigation before (See Feeneys' Request for Judicial Notice ("RJN") Ex. B; American Express' Request for Judicial Notice ("RJN") Ex. 2.) On January 5, 2005, the Feeneys sued Mitan in the Eastern District of Arkansas for fraud in the inducement, conversion, and breach of contract. (Feeneys' RJN Ex. A; American Express' RJN Ex. 1.) Among other things, they sought declaratory judgment finding them to be sole owners of Prime Line and rescission of the Stock Purchase Agreement. When Mitan failed to timely reply to the Feeneys' motion for summary judgment, the district court entered judgment on December 22, 2005 declaring the Feeneys sole owners of Prime Line and rescinding the Stock Purchase Agreement. Mitan moved to set aside the judgment, the district court denied his motion, and in December 2006 the Eighth Circuit affirmed the Feeneys' sole ownership of Prime Line but vacated the rescission of the Stock Purchase Agreement. (Feeneys' RJN Ex. B at 23.) Defendants ask this Court to take judicial notice of these earlier proceedings in Arkansas.¹

D. Plaintiff's Evidence in Opposition²

Plaintiff submitted a declaration in response to the Motions to Dismiss.³ In this declaration, Plaintiff alleges additional facts not in the complaint. Plaintiff alleges that he and the Feeneys were involved in a business dispute over Prime Line in the few weeks leading up to January 12, 2005. (Mitan Decl. ¶¶ 13, 14, 15, 16.) Plaintiff alleges that he was arrested on January 12, 2005 by Redondo Beach Police. (Mitan Decl. ¶ 17.) Plaintiff alleges that the officers informed him he was being held on suspicion of committing identity theft against Doug Feeney and that the Feeneys wished to press charges. (Mitan Decl. ¶ 17, 20.) Plaintiff alleges that, while in Redondo Beach city jail, he was served with the Feeneys' complaint to rescind the Stock Purchase Agreement. (Mitan Decl. ¶ 21.)

Plaintiff has attached what he alleges to be a Redondo Beach Police Department investigation report, which states that on January 10, 2005 Doug Feeney told Redondo Beach police he was the true owner of Prime Line and had not sold his company.⁴ (Mitan Decl. Ex. 5.) Plaintiff claims that he acquired this alleged police report in the course of representing himself pro se. (Mitan Decl. ¶ 49, 50.) According to Plaintiff, Feeneys' statements to police were knowingly false. (Mitan Decl. ¶ 41, 49, 50.) Plaintiff claims that Feeney falsely told police the Prime Line sale had defaulted before Plaintiff applied for an American Express credit card in Prime Line's name. (Mitan Decl. ¶ 41; Ex. 7.) Plaintiff claims that a Redondo Beach police detective testified to Feeney's statements at a preliminary hearing in court. (Mitan Decl. ¶ 41.) Plaintiff also alleges that American Express falsely told police that Plaintiff is a thief who pretends to buy companies in order to use their credit. (Mitan Decl. ¶ 49.)

Finally, Plaintiff alleges that during his incarceration he was denied his asthma medication for several days and suffered numerous asthma attacks. (Mitan Decl. ¶¶ 23-32.) Plaintiff alleges he suffered sickness, physical threats, and theft of a laptop computer and personal jewelry while incarcerated. (Mitan Decl. ¶¶ 38, 39, 40, 55....