Trujillo v. Intermex Prods. United States, Ltd., CASE NO. 1:18-CV-1476 AWI BAM

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
PartiesTOMAS TRUJILLO, d.b.a. Carmelitas Original Salsas, Plaintiff v. INTERMEX PRODUCTS USA, LTD, et al., Defendants
Docket NumberCASE NO. 1:18-CV-1476 AWI BAM
Decision Date12 December 2018

TOMAS TRUJILLO, d.b.a. Carmelitas Original Salsas, Plaintiff
INTERMEX PRODUCTS USA, LTD, et al., Defendants

CASE NO. 1:18-CV-1476 AWI BAM


December 12, 2018


(Doc. No. 8)

This is a contract dispute between Plaintiff and Defendants regarding the sale of produce. Defendants removed this matter from the Stanislaus County Superior Court on the basis of diversity jurisdiction. Currently before the Court is Defendants' Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, or in the alternative Rule 12(b)(3) motion to dismiss for improper venue, or further in the alternative motion to transfer venue under 28 U.S.C. § 1404(a) to the Northern District of Texas. For the reasons that follow, the Court will grant Defendants' Rule 12(b)(3) motion to dismiss and close this case.


From the Complaint, Trujillo does business as Carmelitas Original Salsas and Tomas Foods in Santa Clara, California. Trujillo has been a co-packer of produce for "private labels" for over ten years. In that time, he has cultivated business relationships with premier food distributors, i.e. Vendors, throughout the United States. Defendant Intermex Products USA ("Intermex"), which is a Texas entity, was aware Trujillo's relationships with the Vendors. Intermex solicited Trujillo to supply him produce, which would then be supplied to the Vendors.

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In late 2015/early 2016, Trujillo placed an order for produce with Defendants. Defendants Juan Lorenzo and Diego Lorenzo requested a meeting with Trujillo, and the three later met in San Diego, California. The Lorenzos represented their ability to satisfy future orders of produce in substantial quantities. In January 2016, Trujillo entered into a contract with Defendants whereby Defendants agreed to sell Trujillo chipotles, whole and crushed tomatillos, jalapenos, and sauces.

Within six months of the contract, Trujillo ordered and paid for $675,000 in produce, which was shipped to a warehouse in Texas. However, in June 2016, a substantial load of jalapenos was rejected by the United States Food and Drug administration because the jalapenos contained an insecticide that was potentially harmful to humans. Further, by late Summer 2016, Trujillo became aware of serious defects regarding the canned tomatillos. One Vendor complained that a shipment of canned whole tomatillos was unmerchantable. The whole tomatillos had been improperly canned, had low tomatillo content, and were watery, discolored, rotten, and foul smelling.

By September 2016, Trujillo raised concerns to Diego Lorenzo, but Diego allegedly gave false assurances. Trujillo attempted to meet with Defendants in Southern California, but Defendants refused. Defendants refused to participate in testing the produce, falsely represented the existence of certain production records, and asserted that Trujillo's claims about the defective condition of the produce were false. Defendants refused to accept responsibility for the condition of the produce and offered to return only a fraction of the $625,000 they had received from Trujillo. After Trujillo advised that he was going to liquidate all produce to cover losses, Defendants offered to pay about $172,000.00, permit Trujillo to pursue all other claims for damages, and indemnify Trujillo from any claims by third parties.

In support of the motion to dismiss, Diego Lorenzo declared in relevant part that: (1) Intermex is organized under the laws of Delaware and has its principle place of business in Grand Prairie, Texas, while Defendant Peppers Unlimited, Inc. is a Texas corporation with its principle place of business in Grand Prairie, Texas; (2) produce for Trujillo was shipped by Defendants to Trujillo's warehouse in Laredo, Texas; (3) Trujillo took possession of the produce in Laredo; (4) Defendants did not ship the produce for Trujillo into California; (5) the allegedly USDA rejected

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jalapenos were sent back to Mexico and were not sent to California; (6) Peppers repurchased a substantial amount of its product back from Trujillo and transported the produce from Laredo to Grand Prairie, Texas; and (7) a majority of the repurchased produce was resold to other buyers by Peppers.

In opposition to the motion to dismiss, Trujillo declares in part: (1) his principle place of business is San Martin, California; (2) in May and June 2017, Defendants shipped 271 pallets of produce to Peppers Unlimited's facility in Mira Loma, California; and (3) Trujillo personally communicated with a Peppers Unlimited employee located in Ontario, California.


Federal Rule of Civil Procedure 12(b)(3) allows a defendant to move for dismissal of the case on the basis of improper venue. See Fed. R. Civ. P. 12(b)(3). The plaintiff bears the burden of showing that venue is proper in the chosen district. Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir.1979); Omnicell, Inc. v. Medacist Solutions Group, LLC, 272 F.R.D. 469, 472 (N.D. Cal. 2011); Koresko v. Realnetworks, Inc., 291 F.Supp.2d 1157, 1160 (E.D. Cal. 2003). In deciding a Rule 12(b)(3) motion, the pleadings need not be accepted as true and the court may consider supplemental written materials and facts outside of the pleadings. See Doe 1 v. AOL, LLC, 552 F.3d 1077, 1081 (9th Cir. 2009); Murphy v. Schneider Nat'l, Inc., 362 F.3d 1133, 1337 (9th Cir. 2004); Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 324 (9th Cir. 1996). If there are contested factual issues, the court is obligated to draw all reasonable inferences and resolve the factual conflicts in favor of the non-moving party. Murphy, 362 F.3d at 1138. Alternatively, the district court may hold a pre-trial evidentiary hearing on the disputed facts or may deny the motion with leave to re-file if further development of the record would eliminate any genuine factual issues. Id. at 1139. When there are multiple parties and/or multiple claims in an action, the plaintiff must establish that venue is proper as to each defendant and as to each claim. Pacer Global Logistics, Inc. v. AMTRAK, 272 F.Supp.2d 784, 788 (E.D. Wis. 2003); Bearse v. Main St. Invs., 170 F.Supp.2d 107, 116 (D. Mass. 2001); McCaskey, 133 F.Supp.2d at 523; American Homecare, 27 F.Supp.2d at 112; Hickey v. St. Martin's Press, 978 F.Supp. 230, 240-41

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(D. Md. 1997); Payne v....

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