In responding to my post others comment on Thuy's bad attitude. Apparently Sprint charges you to update their system when you buy a new phone. I called Sprint billing inquires and a very-hard-to-understand "Cathy" said this is an activation fee when you upgrade your phone, but she would take it off my bill. Apparently there are a lot of clueless users who waste technicians' time, and there are people who abuse or deliberately break their phone to get a replacement often cooler model, so Sprint wants to charge for any kind of service.
I do neither but I get shafted, warranty be damned. Asurion's partners include T-Mobile and Verizon Wireless. Consumer action groups have received numerous reports on wireless coverage.
Complaints posted on blogs and Web sites address a variety of issues, including policies that have been canceled because more than one claim for replacement was filed within a year. The company demanded proof of purchase and eventually resolved the dispute by sharing equally with the client in the cost of a new phone. Complaints often develop because consumers don't have easy access to their contracts, Martin said. Bernt G. 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, at p.
Plaintiff submitted an opposition on December 2, All motions were taken under submission after the December 16, hearing. Plaintiff is an individual, proceeding pro se, and originally filed this complaint as an adversary proceeding in a bankruptcy case. 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 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 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. 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 filed this complaint as an adversary proceeding in his bankruptcy case on August 21, The original complaint alleged false advertising and RICO violations. Plaintiff filed a motion for summary judgment on January 24, , together with motions for leave to join parties and for leave to file an amended complaint.
On February 19, , Plaintiff filed a motion for entry of default judgment. An order by District Judge Napoleon A. Jones, Jr. 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, Stiven filed an order accepting the first amended complaint. On September 24, , 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 11, , 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, 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.
Defendant Sprint Corporation moves to dismiss the First Amended Complaint for lack of personal jurisdiction. Plaintiff moves to take judicial notice of certain facts, cases, statements and admissions, findings, and public records. 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. National Bank of Cooperatives, F.
As the Ninth Circuit has explained:. Washington, U. Where the court does not conduct an evidentiary hearing, a plaintiff need only establish a prima facie case of personal jurisdiction. Sher v. Johnson, F. There are two types of personal jurisdiction: general and specific. 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. 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.
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. 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. Garcia Marquez, F. 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. Kaplan, F. Symington, 51 F. The court looks not at whether the plaintiff will "ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Rhodes, U. Scherer, U. See Fed. When ruling on a motion to strike, the court views the challenged pleadings in the light most favorable to the pleader. Lerner, 31 F. However, motions to strike are not favored and "should be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties.
Cagle, F. The Federal Rules of Evidence provide that judicial notice may be taken of adjudicative facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either 1 generally known within the territorial jurisdiction of the trial court or 2 capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned. The Notes of the Advisory Committee on Proposed Rules explain that "adjudicative facts" concern "immediate parties who did what, where, when, how, and with what motive or intent.
The Advisory notes to subdivision b indicate that the tradition, with respect to judicial notice of adjudicative facts, has been one of caution in requiring that the matter be beyond reasonable controversy. Since the effect of taking judicial notice under Rule is to preclude a party from introducing contrary evidence, and in effect, directing a verdict against him as to the fact noticed, the fact must be one that only an unreasonable person would insist on disputing.
See, e. Jones, 29 F. The first question is whether Sprint Corporation has voluntarily appeared in the instant matter and waived its right to contest in personam jurisdiction. Second, this Court must determine whether Sprint Corporation has sufficient minimum contacts with California to support personal jurisdiction.
Next, the Court must determine whether the Plaintiff has met its burden of establishing jurisdiction. Under Federal Rule 12 h 1 , a party waives the defense of lack of personal jurisdiction if it is neither made by motion under this rule nor included in a responsive pleading or amendment thereof. Rule 12 h does not create waiver in this case since Sprint Corporation did include a 12 b 1 motion in its response to the First Amended Complaint.
Moreover, Sprint Corporation did not make a general appearance in the bankruptcy adversary proceeding. Rather, the answer filed in the bankruptcy court was by Sprint Spectrum, L. Moreover, Plaintiff moved for default judgment against Sprint Corporation, claiming Sprint Corporation had not answered.
In an order dated March 26, , Judge Jones denied Plaintiff's default motion on the grounds that Sprint Spectrum had effectively responded on behalf of Sprint Corporation. In an order dated June 25, , Judge Jones found that Sprint Corporation was still a party to the lawsuit, because Plaintiff's voluntary dismissal of Sprint Spectrum did not affect the status of Sprint Corporation as a party, and the Court had not officially dismissed Sprint Corporation from the action.
In fact, in its order, the Court expressly left open Sprint Corporation's opportunity to challenge the court's personal jurisdiction. This Court now finds that Sprint Corporation did not make a general appearance, did not consent to this Court's jurisdiction by implication, and did not waive its right to challenge this Court's personal jurisdiction.
The question then is whether Sprint Corporation has sufficient minimum contacts with California to make it subject to personal jurisdiction. It is well-settled that a court must have sufficient minimum contacts with the forum state such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice.
Fields, F. Specific personal jurisdiction may be asserted where the defendant has purposely availed him- or herself of the forum state, and the plaintiff's claim arises out of the defendant's forum-related activities. See id. Defendant Sprint Corporation contends that it is a Kansas corporation with headquarters in Kansas, and its only operations is in Kansas.
Defendant further contends that it is primarily a holding company, owning numerous subsidiary corporations and limited liability partnerships. Defendant Sprint Corporation claims that it does no actual business in California, has never done business in California, does not own property in California, does not have an office in California, and is not registered to conduct business in California.
Defendant Sprint Corporation further contends that it does not have officers or employees in California. Such lack of contacts generally are held sufficient to successfully challenge the exercise of general jurisdiction. See Helicopteros Nacionales de Colombia, S.
Hall, U. Thus, it appears that Defendant Sprint Corporation's California-related activities are neither substantial nor continuous and systematic, so as to support general personal jurisdiction. Except as discussed below regarding Plaintiff's assertions regarding the activities of Sprint Corporation's subsidiaries in California and Plaintiff's claims of alter ego, the evidence presented points to the conclusion that there is not a basis for finding general jurisdiction over Sprint Corporation in this Court.
Compagnie Bruxelles Lambert, 94 F. Indian River County, 64 F. The court therefore found that the circumstances relied upon to establish GBL's domination over Keystone reflected no more than a normal parent-subsidiary relationship.
Harvey, F. In Flynt, the Ninth Circuit relied on a finding of alter ego and concluded that the court had personal jurisdiction over numerous defendants who were New York corporations, partnerships, and individual residents and whose only contact with the forum state of California arose out of a subsidiary entity who had entered into the distribution agreement at issue.
The defendants argued that the agreement was insufficient as minimum contacts to support general or specific jurisdiction. The Flynt court based the question of whether there was personal jurisdiction in a diversity case upon two inquiries: 1 whether a state statute of the forum conferred personal jurisdiction over the nonresident defendant and 2 whether the exercise of jurisdiction accorded with federal constitutional principles of due process.
The court found that the five corporate signatories to the distribution agreement with Plaintiff had purposefully availed themselves of the forum state's jurisdiction. The court also asserted jurisdiction over thirteen other defendants who had not signed the agreement.
The circuit court affirmed the district court's finding that if the foreign corporate defendants were all the alter egos of their two common shareholders, and five of the corporations had submitted to the jurisdiction of the court, then jurisdiction could be asserted over all the corporate defendants.
Superior Court, 40 Cal. Commonwealth Insurance Co. Only a prima facie showing of the alter ego relationship was required in Flynt. The court therefore found an alter ego relationship sufficient for personal jurisdiction. In the instant case, there is a parent-subsidiary relationship, but there is not such unity of interest, i.
Defendant Sprint Corporation's the parent's contacts with California appear to be limited to its subsidiaries doing business in California, and the use of a common trademark and trade name with its numerous subsidiaries who are operating in California. Finally, the alter ego analysis does not generally apply to confer personal jurisdiction on a parent such as Defendant Sprint Corporation through its subsidiaries; rather, the alter-ego analysis generally applies to cases where a corporation is alleged to the be the alter ego of the stockholders.
Thus, and for the reasons set out below, it does not appear that Defendant Sprint Corporation has sufficient minimum contacts with California, by purposeful availment or through an alter ego analysis, to support general or specific personal jurisdiction. The plaintiff in an action has the burden of establishing jurisdiction. Where the motion may be decided on the basis of the pleadings and declarations, the plaintiff must establish a prima facie case of personal jurisdiction.
See Fields, F. To establish a prima facie case, the plaintiff must produce admissible documentary evidence containing facts sufficient to support a finding of personal jurisdiction. See Sher v. Additionally, to establish personal jurisdiction over the parent, the plaintiff must make a prima facie showing that the subsidiary is acting as the parent company's alter ego.
A subsidiary would be the parent's alter ego only if the plaintiff made out a prima facie case: " 1 that there is such unity of interest and ownership that the separate personalities of [parent of subsidiary] no longer exist and 2 that failure to disregard [their separate identities] would result in fraud or injustice.
In Flynt, the plaintiff made a prima facie showing of an alter ego relationship by submitting affidavits indicating the two sole shareholders of the several defendant corporations had converted corporate assets for their own use, had dealt with the various corporations as if they were one, and had transferred assets among the corporations leaving some of them undercapitalized.
Moreover, there has not been a showing that there is anything more than a normal parent-subsidiary relationship. In order to support this Court's personal jurisdiction over Defendant Sprint Corporation, Plaintiff must make at least a prima facie showing of the alter ego relationship alleged to exist.
Defendant contends that Plaintiff's only allegations relevant to jurisdiction are erroneous or unsupported facts and legal conclusions that disregard the organization of Sprint Corporation or vice versa and the relationship between the parties. Defendant argues that Plaintiff pleads no real facts to support the legal conclusion that Sprint PCS is the alter ego of Sprint Corporation and that Plaintiff must produce admissible evidence sufficient to establish personal jurisdiction.
Defendant maintains and offers proof that Sprint Corporation is a separate and distinct legal entity from both Sprint Spectrum L. Defendant further maintains that each entity keeps separate books and records and separate bank accounts, as well as being responsible for its own day-to-day operations.
Plaintiff's pleadings and exhibits to his opposition do not establish anything contrary. Plaintiff does not, however, provide sufficient evidence to support his conclusions about Defendants' corporate structures and business operations. In seeking to support the existence of an alter-ego relationship, Plaintiff offers as evidence the Annual Report for for a different subsidiary, Sprint Communications Company, L. Defendant's Motion includes a declaration from Mr.
Hyde, which states that he is assistant Secretary of Sprint Corporation.
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