{ Converted to text using OCR. The PDF is the controlling document. The Exhibits are in the PDF. JM}

 

REC'D & FILED

2011  NOV 17   PM 2:33

ALAN GLOVER CLERK

DEPUTY ____________

 

 

MOT  

JOHN PETER LEE, LTD.   

JOHN PETER LEE, ESQ.    

Nevada Bar No. 001768      

JOHN C. COURTNEY, ESQ.        

Nevada Bar No. 011092      

830 Las Vegas Boulevard South     

Las Vegas, Nevada 89101    

(702) 382-4044 Fax: (702) 383-9950          

e-mail: info@johnpeterlee.com       

Attorneys for Defendant Reza Zandian       

          

 

IN THE FIRST JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA

IN AND FOR CARSON CITY

 

 

JED MARGOLIN, an individual,

            Plaintiff,

VS.

 

OPTIMA TECHNOLOGY CORPORATION, a California corporation, OPTIMA TECHNOLOGY CORPORATION, a Nevada corporation, REZA ZANDIAN aka GOLAMREZA ZANDIANJAZI aka GHOLAM REZA ZANDIAN aka REZA JAZI aka J. REZA JAZI aka G. REZA JAZI aka GHONONREZA ZANDIAN JAZI, an individual, DOE Companies 1-10, DOE Corporations 11-20, and DOE Individuals 21-30,

             Defendants.

 

 

Case No.: 09OC005791B

Dept. No.: I

 

 

 

 

 

 

MOTION TO DISMISS AMENDED COMPLAINT ON SPECIAL APPEARANCE

 

COMES NOW Defendant Reza Zandian by and through his counsel John Peter Lee, Ltd., and hereby files his MOTION TO DISMISS AMENDED COMPLAINT ON SPECIAL APPEARANCE.

 

This Motion is made and based upon all of the pleadings and papers on file herein, exhibits attached hereto, the attached Memorandum of Points and Authorities, and oral argument, if required by the Court.

 

 

MEMORANDUM OF POINTS AND AUTHORITIES

 

I.

 

ZANDIAN IS AGAIN BEFORE THIS COURT ON A SPECIAL APPEARANCE.

 

The Nevada Supreme Court has held that "general appearance is entered when a person (or the person's attorney) comes into court as a party to a suit and submits to the jurisdiction of the court." Milton v. Gesler, 107 Nev. 767, 769, 819 P.2d 245, 247 (1991). "A special appearance is entered when a person comes into court to test the court's jurisdiction or the sufficiency of service." Id. "Black's law dictionary defines a general appearance as a 'simple and unqualified... submission to the jurisdiction of the court' and defines a special appearance as an appearance 'for the purpose of testing the sufficiency of service or the jurisdiction of the court" Id. at fn. 3 (citing Black's Law Dictionary 89 (5th ed. 1979)).

 

Defendant Golamreza Zandianj azi (hereinafter "Zandian") hereby makes a special appearance in this case for the purpose of testing both the sufficiency of service and the jurisdiction of the court; thus, Zandian has not consented to personal jurisdiction of any Nevada court by bringing the instant motion.

 

II.

 

SUMMARY OF FACTS.

 

A.       Procedural History.

 

Plaintiff Jed Margolin (hereinafter "Margolin") filed a Complaint in 2009 with a Nevada District Court against Zandian, among other defendants. See Court Record. Without serving said Complaint upon Zandian, Margolin took a default judgment against Zandian. Id. Zandian challenged the Complaint and the Default Judgment and filed a Motion to Dismiss on a Special Appearance (hereinafter "First Motion to Dismiss"). Id. In response, Margolin requested, inter alia, that the Court grant him leave to amend his Complaint. Id. "Having found that service was never effectuated, the Default Judgment entered against [Zandian] on March 1, 2011 [was] set aside." Exhibit "A". The Court denied Zandian's First Motion to Dismiss "without prejudice" on August 3, 2011, and allowed Margolin a "ninety (90) days from the date of [the] Order to properly effectuate service of the Complaint and Summons and/or an Amended Complaint upon [Zandian]." Id.

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Accordingly,  Margolin was to effectuate service by November 2, 2011, pursuant to Court order. Id.  To date, there is no evidence in the record that Zandian was ever served by November 2, 2011.

 

B.       Undisputed Facts.

 

Zandian hereby incorporates the Statement of Fact as stated in his last Motion to Dismiss Plaintiff's Complaint as though fully stated herein.

 

Margolin was involved in an action before the United States District Court for the District of Arizona related to the same subject matter that is the subject of the instant action. Exhibit "B". In the Arizona action, Margolin, along with his co-defendants, was granted relief against "Optima Technology Corporation, a Nevada corporation," who is a defendant in the instant action. Id. That action involved the same transactions and occurrences that are involved in this action: (1) that Margolin was the rightful owner of Patents Nos. 5,566,073 and 5,904,724, dated July 20, 2004; (2) that the assignment of those patents was "forged, invalid, void, of no force and effect"; and (3) that the assignment was to be "struck from the records of the USPTO." Id. The Arizona action, therefore, involving the same transactions and occurrences has been litigated to a final judgment. Id. Zandian was not a part of that action. Id.

 

In the Amended Complaint, Margolin has represented to the Court that "[i]n the Arizona Action, Mr. Margolin and OTG filed a cross-claim for declaratory relief against Optima Technology Corporation (Zandian) in order to obtain legal title to their respective patents." Am. Compl., ¶ 17. Again, however, Zandian was not a party to the Arizona Action! Exhibit 'B".

 

In the Amended Complaint there is not a single allegation suggesting that Zandian acted in his individual capacity in such a way to cause a justiciable injury to Margolin. See Am. Compl. Also, Zandian was never named as a party in the Arizona action where the same transactions and occurrences have already been litigated to a final judgment. Exhibit "B". Most importantly, Margolin has not alleged that any transactions or occurrences that are the subject of the Amended took place within the State of Nevada or within the County of Storey. See Am. Compl. The only conceivable, although speculative, connections between Nevada and Zandian that is provided in the Amended Complaint include the following: (1) that Zandian "at all relevant times resided in Las Vegas, Nevada"; (2) that "the Defendants at all times herein mentioned has been and/or is residing

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or currently doing business in and/or are responsible for the actions complained of herein in Storey County"; and (3) that Zandian is in some way connected to Optima Technology Corporation. Am. Compl., ¶¶ 4, 8 and 6, respectively. Zandian has not been alleged to have committed conversion in Nevada, interference with a contract in Nevada, interference with a perspective economic advantage in Nevada, unjust enrichment in Nevada, or unfair and deceptive trade practices in Nevada. See Am. Compl. While there is an allegation that Zandian filed out certain USPTO documents, there is not any allegations that he did so in his individual capacity or that he did so within the State of Nevada.

 

On or about August 11, 2011, Margolin filed a Motion to Serve by Publication (hereinafter "Publication Motion"). In that motion, Margolin did not provide any documents or evidence which suggest that personal service was ever attempted upon Zandian within the State of Nevada. Although Margolin has alleged that Zandian is a resident of Nevada, he attached a sworn declaration to his Publication Motion stating that Zandian's last known address is "8401 Bonita Downs Road, Fair Oaks, California." Publication Motion, Ex. "1". Morgolin also attached three Affidavits of Service indicating that personal service was attempted on Zandian in Sacramento County, California only. Id. at Ex. "2" through "4".

 

III.

 

LEGAL ANALYSIS.

 

A.       Service of the Summons and Complaint was Never Effectuated Upon Zandian.

 

Proper service of a summons and complaint upon an individual must be made upon the individual "defendant personally, or by leaving copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process." NRCP 4(d)(6). Pursuant to NRCP 12(b)(4), insufficiency of service of process is grounds to dismiss a complaint. The Court ordered service to be effectuated on or before November 1, 2011. Exhibit "A".

 

Zandian was not served a summons and complaint in the U.S. District Court action which forms the basis of the instant action. Exhibit "C". Zandian is not mentioned in the Order issued from the U.S. District Court. Id. at Exhibits "B" & "C". Zandian was not served a summons and

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complaint in the instant action. Exhibit "A". Notwithstanding, Plaintiff took a default judgment against Zandian. Id. That judgment has now been set aside because this Court found that Zandian had not been properly served. Id. There is no evidence in the record suggesting that service has been completed on Zandian as of the filing of this instant motion. See Court Record.

 

Because no summons was ever issued as to Zandian in the underlying U.S. District Court action which forms the basis of the instant action, any domestication of the U.S. District Court action as it pertains to Zandian is a clear violation of Zandian's constitutional right to notice under the Due Process Clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution. Additionally, Zandian was not served in the instant case, in furtherance of the deprivation of Zandian's right to due process.

 

Because Zandian has never been given notice as required by NRCP 4 and/or the U.S. Constitution, Zandian must be dismissed from the instant action upon this instant motion by special appearance.

 

 

B.       Nevada Does Not Have Personal Jurisdiction Over Zandian in the Instant Action.

 

"The plaintiff bears the burden of producing some evidence in support of all facts necessary to establish personal jurisdiction [emphasis added]." Trump v. District Court, 109 Nev. 687,692-93, 857 p.2d 740, 748 (1993). At first, Margolin alleged that Zandian resided in either San Diego or Las Vegas, but Plaintiff did not even attempt to serve Zandian in either of these alleged places of residence. See Compl.; compare to Publication Motion. Now, Margolin alleges in one paragraph of his Amended Complaint that Zandian has "at all relevant times resided in Las Vegas, Nevada." Am. Compl., ¶ 4. Margolin makes this allegation so that the Court will deem that it has personal jurisdiction over Zandian without further inquiry. Three paragraphs later, Margolin has alleged that Zandian and his co-defendant "at all relevant times herein mentioned has been and/or is residing or currently doing business in and/or are responsible for the actions complained of herein in Storey County." Margolin makes this allegation sp that the Court will deem Storey County as the proper venue without further inquiry. So, Zandian has been alleged to reside in Las Vegas, San Diego, and now Storey County; however, Margolin has never alleged with any specificity whatsoever that any

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of the transactions and occurrences (on the part of Zandian, as an individual) giving rise to this action took place within the State of Nevada.

 

"There are two types of personal jurisdiction: general and specific." Trump v. District Court, 109 Nev. 687,699, 857 p.2d 740, 748 (1993). "General jurisdiction over the defendant 'is appropriate where the defendant's forum activities are so 'substantial' or continuous and systematic' that it may be deemed present in the forum."' Id.; see also Baker v. Eighth Jud. Dist. Ct., 116 Nev. 527, 5 3 1-3 1, 999 P.2d 1020, 1023 (2000) (holding that "membership in the state bar, in and of itself, does not subject an individual to general jurisdiction in the state of membership because such contact is not substantial, continuous, or systematic."). In this case, Plaintiff has not alleged that Zandian has ever had any "forum activities" in Nevada. Thus, without more, Nevada cannot exercise general personal jurisdiction over Zandian.

 

"Specific personal jurisdiction over a defendant may be established only where the cause of action arises from the defendant's contacts with the forum." Baker, supra. "To subject a defendant to specific jurisdiction, this court must determine if the defendant 'personally established minimum contacts' so that jurisdiction would 'comport with fair play and substantive justice [internal quotations omitted]."' Id. (citing Burger King Corp. V. Rudzewicz, 471 U.S. 462, 476-77, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 320, 90 L. Ed. 95, 66 S. Ct. 154 (1945)). "In order for a forum state to obtain personal jurisdiction over a nonresident defendant, the Due Process Clause of the Fourteenth Amendment requires that the defendant have 'minimum contacts' with the forum state 'such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice."' Baker, supra at 531-31. Here, Plaintiff has not alleged any contacts between Zandian and Nevada, except to allege that Zandian resides in either San Diego or Las Vegas or Storey County, and this is simply not enough to find that the court has personal jurisdiction over Zandian. Period. It was not enough last time Zandian filed a Motion to Dismiss this action, and it is not enough this time either, particularly because the Amended Complaint does not state a single transaction or occurrence that took place in Nevada. Thus, even if the instant transactions and occurrences complained about in the Amended Complaint were not adjudicated to a final judgment in Arizona, not a single transaction or occurrence has been

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stated to have occurred in Nevada.

 

Zandian has not consented to personal jurisdiction in Nevada. Additionally, Zandian appears now, by and through his counsel, on a limited basis to respectfully dispute the Court's jurisdiction over him. Because Zandian is appearing for the sole purposes of disputing the Court's jurisdiction and challenging the propriety of service upon him, Zandian has neither consented to jurisdiction nor waived the lack thereof.

 

Margolin has not alleged or produced any facts indicating that Zandian has had minimum contacts with the State of Nevada. Period. This is true even though Margolin was granted leave to amend his Complaint the last time Zandian sought dismissal. Thus, pursuant to NRCP 12(b)(2), the Court must dismiss Zandian from the instant action without prejudice.

 

DATED this 16th day of November, 2011.

JOHN PETER LEE, ESQ

 

BY: _______________

JOHN PETE LEE, ESQ.

Nevada Bar No. 001768

JOHN C. COURTNEY

Nevada Bar No. 011092

830 Las Vegas Boulevard South

Las Vegas, Nevada 89101

Ph: (702) 382-4044/Fax: (702) 383-9950

Attorneys for Defendant Reza Zandian

 

 

CERTIFICATE OF MAILING

 

I HEREBY CERTIFY that on the 16th day of November, 2011, a copy of the foregoing MOTION TO DISMISS AMENDED COMPLAINT ON A SPECIAL APPEARANCE was served on the following parties by mailing a copy thereof, first class mail, postage prepaid, addressed to:

 

Adam McMillen, Esq.

Watson Rounds

5371 Kietzke Lane Reno, NV 89511

 

____________________

An employee of

JOHN PETER LEE, LTD.

 

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