{ 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.
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.: 09OC005791B Dept. No.: I
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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
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").
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Accordingly, Margolin was
to effectuate service by November 2, 2011, pursuant to Court order.
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
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
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or currently doing business in
and/or are responsible for the actions complained of herein in
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
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.
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complaint in the instant
action. Exhibit "A". 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, Zandian must 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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of the transactions and
occurrences (on the part of Zandian, as an individual) giving rise to this
action took place within the State of
"There are two types of
personal jurisdiction: general and specific." Trump
v. District Court, 109
"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
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stated
to have occurred in
Zandian has not consented to
personal jurisdiction in
Margolin has not alleged or
produced any facts indicating that Zandian has had minimum contacts with the
State of
DATED this 16th day of November, 2011.
JOHN PETER LEE, ESQ
BY: _______________
JOHN PETE LEE, ESQ.
JOHN C. COURTNEY
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
____________________
An employee of
JOHN PETER LEE, LTD.
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