United States District Court, D. Arizona
ORDER
DOMINIC W. LANZA UNITED STATES DISTRICT JUDGE.
On May
20, 2019, the Court issued an order granting the motions to
dismiss filed by most of the defendants in this case and
ordering Plaintiff to submit a memorandum addressing why the
claims in the second amended complaint (“SAC”)
shouldn't be dismissed against the remaining two
defendants, Vemma Vitamins Pty. Limited (“Vemma
Vitamins”) and Tarak Mehta (“Mehta”), for
lack of service and lack of personal jurisdiction. (Doc.
148.)
On June
17, 2019, Plaintiff filed a responsive memorandum. (Doc.
155.) In it, Plaintiff doesn't address the status of
Vemma Vitamins. As for Mehta, Plaintiff contends he
shouldn't be dismissed because Mehta filed an answer in
February 2018 that “does not expressly appear to raise
lack of personal jurisdiction or insufficient service of
process.” (Id. at 3.)
The
Court disagrees. In his admittedly unusual February 2018
response (Doc. 64) to the first amended complaint
(“FAC”), Mehta explicitly raised lack of personal
jurisdiction and insufficient service of process. As to
service, Mehta repeatedly asserted that Plaintiff served the
summons “upon a wrong person and on a wrong company, at
a wrong address” and asked the Court “to direct
Plaintiff to recall the summon, unconditionally, as sent by
the Plaintiff to the wrong person at the wrong
address.” (Doc. 64 ¶¶ 1, 25.) As to personal
jurisdiction, Mehta argued that the “District Court can
never have any personal jurisdiction over your Petitioner who
is not the specific Defendant.” (Id. ¶
18.) Moreover, Mehta “specifically and particularly
denie[d] each and every point of allegations contained
in” the FAC. (Id. ¶ 2.) This denial
encompassed the four allegations in the FAC pertaining to
Mehta (none of which, separately or together, establish
personal jurisdiction). (Doc. 13 ¶¶ 7, 31, 32, 55.)
The Court further notes that the “Jurisdiction and
Venue” section of the FAC didn't even mention
Mehta[1]-it only alleged that personal jurisdiction
existed over certain other defendants. (Id.
¶¶ 9-13.) This is a basic pleading deficiency.
See Fed. R. Civ. P. 8(a)(1) (“A pleading that
states a claim for relief must contain . . . a short and
plain statement of the grounds for the court's
jurisdiction, unless the court already has jurisdiction and
the claim needs no new jurisdictional support.”). This
basic pleading deficiency was not rectified in the SAC, which
also fails to mention Mehta in the “Jurisdiction and
Venue” section. (Doc. 103 at ¶¶ 11-19.) Thus,
the Court finds that Mehta's February 2018 response did
not waive challenges to personal jurisdiction or inadequate
service.[2]
For
these reasons, the Court concludes that the analysis
contained in its May 20, 2019 Order (Doc. 148) compels the
conclusion that Mehta should be dismissed for lack of
personal jurisdiction.[3] And because Plaintiff didn't even
attempt to address the status of Vemma Vitamins, the Court
concludes that Vemma Vitamins should be dismissed for lack of
personal jurisdiction and for failure to serve, for the
reasons explained in the Court's May 20, 2019 Order.
Accordingly,
IT IS ORDERED that:
(1)
Defendants Vemma Vitamins Pty. Limited and Tarak Mehta are
dismissed without leave to amend;
(2) The
Clerk of Court shall enter judgment accordingly;
(3) Any
defendant wishing to file a motion for attorneys' fees
must do so within 14 days of entry of judgment; and
(4) All
motions for an award of attorneys' fees shall be
accompanied by an electronic Microsoft Excel spreadsheet, to
be emailed to the Court and opposing counsel, containing an
itemized statement of legal services with all information
required by Local Rule 54.2(e)(1). This spreadsheet shall be
organized with rows and columns and shall automatically total
the amount of fees requested to enable the Court to
efficiently review and recompute, if needed, the total amount
of any award after disallowing any individual billing
entries. This spreadsheet does not relieve the moving party
of its burden under Local Rule 54.2(d) to attach all
necessary supporting documentation to its motion. A party
opposing a motion for attorneys' fees shall email to the
Court and opposing counsel a copy of the moving party's
spreadsheet, adding any objections to each contested billing
entry (next to each row, in an additional column) to enable
the Court to efficiently review the objections. This
spreadsheet does not relieve the non-moving party of the
requirements of Local Rule 54.2(f) concerning its responsive
memorandum.
Manas
Mukherjee Alipore Judges
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Notes:
[1] Another Defendant, Haresh
Mehta, was mentioned, but Tarak Mehta was
...