{ Converted to text using OCR. The PDF is the controlling document. The Exhibits are in the PDF. JM}
REC’D & FILED
2011 JUN-9 PM 2:40
ALAN GLOVER CLERK
BY DEPUTY _________
MOT
JOHN PETER LEE, LTD.
JOHN PETER LEE, ESQ.
JOHN C. COURTNEY, ESQ.
(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
IN
AND FOR
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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.
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Case No.: 09OC00579 1B Dept. No.: I
MOTION TO DISMISS ON A SPECIAL APPEARANCE
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COMES NOW Defendant Reza Zandian by and through his counsel John Peter Lee, Ltd., and hereby files its MOTION TO DISMISS ON A 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 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 Nov.
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."
Defendant Golamreza Zandianjazi (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.
STATEMENT OF FACTS
Universal Avionics Systems Corporation as Plaintiff filed an action in the United States District Court of Arizona (Tucson Division) under case number 4:07-cv-00588-RCC on November 9, 2007. A copy of the docket for that case is attached hereto as Exhibit "A".
On August 18, 2008, an order
was entered, a copy of which is attached as Exhibit “B”. With regard to the
U.S. District Court action, neither the underlying complaint, nor the order,
nor the docket carry the name of Reza Zandian (hereinafter "Zandian”).
Accordingly, Zandian, as an individual, was never served with a complaint in
that action. Jed Margolin (hereinafter "Margolin") is named as a
defendant in the U.S. District Court action in
Margolin filed a complaint with
the First Judicial District Court of the State of
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Zandian resides in
In the Nevada Complaint,
paragraph 17, Margolin alleges to have filed a cross-claim for declaratory
relief against Zandian in the U.S. District Court action.
In the Nevada Complaint,
Margolin wrongfully and fraudulently states that Zandian was a resident of
Nevada, that he was sued in Arizona before the U.S. District Court, that a
judgment was entered there against him and that the Nevada Complaint is filed
in an attempt to domesticate the U.S. District Court judgment issued in
Arizona. See Exhibits "A." through "C". Thus, Margolin
attached to the Nevada Complaint the only evidence necessary to determine
whether Margolin committed a fraud upon the court by naming Zandian in the
Zandian hereby alleges that in
addition to his residency, which was at all times in
In support of the Default
Judgment, Margolin, the Plaintiff, filed Points and Authorities, but did not
indicate the basis for the enforcement of a judgment by default against
Zandian. Again, Zandian was not served with a copy of the Nevada Complaint or the
U.S. District Court complaint which forms the basis for the Nevada Complaint.
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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.
Zandian was not served a summons and complaint in the U.S. District Court action which forms the basis of the instant action. Exhibit "A". Zandian is not mentioned in the Order issued from the U.S. District Court. Exhibits "A" & "B". Zandian was not served a summons and complaint in the instant action. Notwithstanding, Plaintiff took a default judgment against Zandian.
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, the default judgment as applied to Zandian must be set aside pursuant to NRCP 55(c) or 60(b), and Zandian be dismissed from the instant action upon this instant motion by special appearance.
B.
"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
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857 p.2d 740, 748 (1993). Here, while Plaintiff did allege that Zandian resided in wither San Diego or Las Vegas, Plaintiff did not even attempt to serve Zandian in his alleged places of residence, which ought to serve as the only evidence that the court needs to determine that the allegation that Zandian resides in Las Vegas was nothing more than a fraud upon the court to induce the court into exercising personal jurisdiction over Zandian.
"There are two types of
personal jurisdiction: general and specific." Trump
v. District Court, 109
"Specific personal
jurisdiction over a defendant maybe 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].,"
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Zandian has not consented to personal
jurisdiction in
Zandian has not been alleged to
reside of the State of
DATED this 8th day of June, 2011.
JOHN PETER LEE, LTD.
BY: ________________
JOHN PETER LEE, ESQ.
JOHN C. COURTNEY
Ph: (702) 3824044/Fax: (702) 383-9950
Attorneys for Defendant Reza Zandian
CERTIFICATE OF MAILING
I HEREBY CERTIFY that on the 8th day of June, 2011, a copy of the foregoing MOTION TO DISMISS ON A SPECIAL APPEARANCE was served on the following parties by mailing a copy thereof, first class mail, postage prepaid, addressed to:
Cassandra P. Joseph, Esq,
Watson Rounds
___________________
An employee of
JOHN PETER LEE, LTD.
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