Von Grabe v. Sprint Pcs

• Decision Date: 18 September 2003
• Docket Number: No. 02 CV 0048 JFS.,02 CV 0048 JFS.
• Citation: 312 F.Supp.2d 1285
• Court: U.S. District Court — Southern District of California
• Parties: Bernt G. VON GRABE, Plaintiff, v. SPRINT PCS, aka Sprint Spectrum, L.P., Sprint Corporation, Defendants.

312 F.Supp.2d 1285

Bernt G. VON GRABE, Plaintiff, v. SPRINT PCS, aka Sprint Spectrum, L.P., Sprint Corporation, Defendants.

No. 02 CV 0048 JFS.

United States District Court, S.D. California.

September 18, 2003.

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Bernt W. Vongrabe, Port Orange, FL, for Plaintiff (pro se).

Daniel T. Pascucci, Michael D. Murphy, Fish & Richardson, P.C., San Diego, CA, for Defendants.

ORDER (1) GRANTING DEFENDANT'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION; (2) GRANTING IN PART DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM; (3) DENYING DEFENDANT'S MOTION TO STRIKE; (4)DENYING IN PART PLAINTIFF'S MOTION TO TAKE JUDICIAL NOTICE; AND (5) GRANTING LEAVE TO FILE A SECOND AMENDED COMPLAINT

STIVEN, United States Magistrate Judge.

I. INTRODUCTION

The motions of Defendant Sprint Corporation to dismiss, Defendant Sprint PCS to dismiss and to strike, and of Plaintiff to take judicial notice were heard on December 16, 2002 at 2:00 p.m. in the above entitled court. The subject Rule 12 motion of Defendant Sprint Corporation was filed on October 9, 2002. The subject Rule 12 motions of Defendant Sprint PCS were also filed on October 9, 2002. Plaintiff submitted an opposition on December 2, 2002. Defendant Sprint Corporation and Defendant Sprint PCS each filed a reply on December 9, 2002. The subject motion of Plaintiff for the Court to Take Judicial Notice was filed on December 2, 2002. Defendant Sprint Corporation and Defendant Sprint PCS each filed objections on December 9, 2002. All motions were taken under submission after the December 16, 2002 hearing.

II. BACKGROUND

A. RELEVANT FACTUAL BACKGROUND

Plaintiff is an individual, proceeding pro se, and originally filed this complaint as an adversary proceeding in a bankruptcy case. The instant case arises from a dispute between Plaintiff and Sprint PCS regarding Sprint PCS's Equipment Replacement Program. Plaintiff purchased a wireless phone and began participating in the Program for a fee of $4 per month on or about December 16, 2000. Plaintiff alleges that, despite his payment of necessary fees to Sprint, Sprint customer service agents refused to replace his phone after it was damaged. Plaintiff exchanged the phone with the dealer under the dealer's ninety-day exchange policy, paid an activation fee of $29.99 to activate the second phone, and demanded reimbursement from Sprint. Plaintiff alleges that six months later, the desktop battery charger for his phone became damaged. Plaintiff believed the charger was also covered under the warranty, but Sprint refused to replace it. Plaintiff purchased another desktop charger for $39.74.

Plaintiff brings this action in tort, in part based upon violation of statutory duties under California Civil Code, including various California Consumer Protection Laws, and California Insurance Code. Plaintiff also sues under 15 U.S.C. § 1125 (the Lanham Act) and 18 U.S.C. § 1964 (RICO) for recovery of damages stemming from a pattern of fraud.

According to Defendants, Plaintiff's alleged "actual damages" were substantially less than $500.00. Plaintiff has alleged thirteen counts in the First Amended Complaint, including the Lanham Act, fraud, false advertising, concealment, warranty law violations, California Insurance Code violations, failure to settle, malice and oppression, and RICO. Plaintiff seeks as damages $73,170 in compensatory damages, including recovery of his cost for increased medication, and no less than $2.25 million in punitive damages. Additionally, according to Defendants, Plaintiff erroneously named "Sprint PCS" as a defendant. Defendants contend that there is no separate entity by that name and that Sprint PCS is a "dba" of Sprint Spectrum L.P. and of Sprint Telephony PCS L.P., both of which are indirect, wholly owned subsidiaries of Sprint Corporation.

B. PROCEDURAL BACKGROUND

Plaintiff filed this complaint as an adversary proceeding in his bankruptcy case on August 21, 2001. The original complaint alleged false advertising and RICO violations. The case was transferred to the United States District Court for the Southern District of California on January 8, 2002. Plaintiff filed a motion for summary judgment on January 24, 2002, together with motions for leave to join parties and for leave to file an amended complaint. On February 19, 2002, Plaintiff filed a motion for entry of default judgment. An order by District Judge Napoleon A. Jones, Jr. was filed on March 26, 2002, denying plaintiff's motion for leave to file an amended complaint,¹ denying the motion for summary judgment as moot, denying plaintiff's motion for default judgment against Sprint PCS, denying plaintiff's motion for leave to join parties, and dismissing Sprint Spectrum, L.P. from the action, based on voluntary dismissal by Plaintiff.² On May 23, 2002, Plaintiff filed a motion for an emergency temporary restraining order; the District Court denied Plaintiff's motion on May 28, 2002.

On June 25, 2002, the District Court filed an order clarifying the status of Sprint Corporation. Plaintiff's original complaint was alleged against "Sprint PCS," "Sprint Corporation," and "Cox Communication PCS, L.P." However, because none of those defendants had any connection to Plaintiff's claims, Sprint Spectrum answered the complaint, asserting itself as a Defendant on behalf of and in place of "the erroneously named" Sprint Corporation. Although Plaintiff voluntarily dismissed Sprint Spectrum, the Court found that this dismissal did not affect the status of Sprint Corporation as a party to this action.

Plaintiff again filed a motion for leave to file an amended complaint on June 27, 2002. On September 4, 2002, Magistrate Judge James F. Stiven filed an order accepting the first amended complaint. On September 24, 2002, Judge Jones entered an order taking a motion for reconsideration under submission and taking the motion to clarify the earlier order under submission. On December 10, 2002, Judge Jones signed a stipulation and consent/order of reference, permitting the instant case to proceed before Magistrate Judge Stiven pursuant to 28 U.S.C. § 636(c). On December 11, 2002, Judge Jones denied as moot Plaintiff's motion for reconsideration of the motion to join parties, Plaintiff's motion for modification of the June 25, 2002 order, Plaintiff's motion for an order entering default judgment, Plaintiff's motion for entry of default judgment on claim 1, and Plaintiff's motion for bifurcation of claim 2.

C. PRESENT DISPUTE

Defendant Sprint Corporation moves to dismiss the First Amended Complaint for lack of personal jurisdiction. Defendant Sprint PCS moves to dismiss the First Amended Complaint for failure to state a claim and to strike. Plaintiff moves to take judicial notice of certain facts, cases, statements and admissions, findings, and public records.

III. STANDARDS OF LAW

A. PERSONAL JURISDICTION (RULE 12(b)(2))

A court may "exercise personal jurisdiction over a non-resident if jurisdiction is proper under California's long-arm statute and if that exercise accords with federal constitutional due process principles." Fireman's Fund Ins. Co. v. National Bank of Cooperatives, 103 F.3d 888, 893 (9th Cir.1996). As the Ninth Circuit has explained:

California's long-arm statute authorizes the court to exercise personal jurisdiction over a non-resident defendant on any basis not inconsistent with the California or federal Constitution. Cal.Code Civ. Pro. § 410.10. The statutory and constitutional requirements therefore merge into a single due process test.

Id. at 893. "Due process requires only that ... [the defendant] have certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Where the court does not conduct an evidentiary hearing, a plaintiff need only establish a prima facie case of personal jurisdiction. Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir.1990). There are two types of personal jurisdiction: general and specific.

1. General Jurisdiction

General personal jurisdiction enables a court to hear cases unrelated to the defendant's forum activities if the defendant has "substantial" or "continuous and systematic" contacts with the forum state. Fields v. Sedgwick Associated Risks, Ltd., 796 F.2d 299, 301 (9th Cir.1986).

2. Specific Jurisdiction

The Ninth Circuit has a three-part test to determine whether specific personal jurisdiction comports with due process: "(1) the defendant must have done some act purposely to avail himself of the privilege of conducting activities in the forum; (2) the claim must arise out of the defendant's forum-related activities; and (3) the exercise of jurisdiction must be reasonable." Fields, 796 F.2d at 302. Where the defendants present "a compelling case that jurisdiction would be unreasonable," there is no need to address the first two prongs of the test. Id. at 302. On the other hand, "[o]nce purposeful availment has been established, the forum's exercise of jurisdiction is presumptively reasonable. To rebut that presumption, a defendant must present a compelling case that the exercise of jurisdiction would in fact be unreasonable." Roth v. Garcia Marquez, 942 F.2d 617, 621-22 (9th Cir.1991).

B. RULE 12(b)(6)

A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims in the complaint. The court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986); Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir....