{ Converted to text using OCR. The PDF is the controlling document. The Exhibits are in the PDF. JM}
JOHN PETER LEE, LTD.
ATTORNEYS AT LAW
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Telephone (702) 382-4044
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E-Mail: info@johnpeterlee.com
John Peter Lee, Esq.
Yvette R. Freedman, Esq.
John C. Courtney, Esq.
James J. Lee, Esq.
Carlene R. Star, Esq.
Jack Galardi, Law Clerk
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DATE: January 4, 2012
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JOHN PETER LEE, LTD.
Tiffany Duran
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REC’D & FILED
2011 DEC 13 PM 2:31
ALAN GLOVER CLERK
BYDEPUTY__________
REPY
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
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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
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REPLY TO OPPOSITION TO MOTION TO DISMISS
COMES NOW Defendant Reza Zandian by and through his counsel John Peter Lee, Ltd., and hereby files his REPLY TO OPPOSITION TO MOTION TO DISMISS.
This Reply 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.
STATEMENT OF FACTS.
In 2008, before the United States District Court District of Arizona, Plaintiff Jed Margolin (hereinafter "Margolin"), by and through his company, Optima Technology, Inc. a/k/a Optima Technology Group, Inc. (hereinafter "OTG"), litigated the same transactions and occurrences to a final judgment that he now wishes to again litigate in this case. Compare Am. Compl. and Opposition to Motion to Dismiss (hereinafter "Opposition"), Ex. 29. (hereinfafter "Ex. 29").
In the Arizona action, Margolin, acting as agent for OTC, alleged that Optima Technology Corporation (hereinafter "OTC") unlawfully converted OTG's patents to its own dominion and control. Ex. 29, pp. 12-31. In this case, Margolin alleged that OTC has converted OTG's patents to its own use. Am. Compl., pp. 3 -6. In the Arizona action, Margolin characterized the same facts as constituting wrongdoing under the following causes of action: (1) Patent Infringement; (2) Breach of Contract; (3) Breach of the Implied Covenant of Good Faith and Fair Dealing; (4) Negligence; (5) Declaratory Relief; (6) Injurious Falsehood/Slander of Title; (7) Trespass to Chattels; (8) Unfair Competition; (9) Unfair and Deceptive Competition/Business Practices; (10) Unlawful Conspiracy to Injure Trade or Business; (11) Unfair and Deceptive Competition/Business Practices; (12) UAS Liability; and (13) Punitive Damages. Ex. 29., pp. 16-30. Using the same facts pertaining to the same transactions and occurrences, in this case, Margolin again alleges wrongdoing on the part of OTC pursuant to slightly modified causes of action including: (1) Conversion; (2) Tortious Interference with Contract; (3) Intentional Interference with Prospective Economic Advantage; (4) Unjust Enrichment; and (5) Unfair and Deceptive Trade Practices. Am. Compl,, pp. 2-6.
In the Arizona action, Margolin alleged that "Zandian executed [documents purporting to assign or transfer title and/or interest in the Patents to OTC with the PTO] by (inter alia) utilizing his signature on behalf of OTC and mis-stating that Zandian/OTC was exercising the Power of Attorney as the 'attorney in fact' of Margolin." Ex. 29, p. 22,11. 21-23. In this case, Margolin alleged that "Zandian filed with the [PTO] fraudulent assignment documents allegedly assigning all four of the Patents to [OTC]." Am. Compl., p. 3,11. 25-28. Margolin even admits to bringing the
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instant action pursuant to the same transactions and occurrences already litigated to final judgment. See Am. Compl., p. 4,11. 5-17. The similarity between the facts in the Arizona action and the instant action is absolute and separated only by the verbiage utilized in describing the same transactions and occurrences and the causes of action purported to have been committed. Compare Ex. 29 and Am. Compl.
PROCEDURAL HISTORY.
Margolin filed the instant action on December 11, 2009, more than two years ago. Without effecting proper service upon Defendant Zandian (hereinafter "Zandian"), Margolin took a default judgment, which was later set aside on the grounds of insufficient service. On June 9, 2011, Zandian filed a motion to dismiss the instant action, which was denied without prejudice to allow Margolin an additional ninety (90) days to properly effectuate service. Margolin then attempted service by publication in the San Diego Union-Tribute, the Reno Gazette-Journal and the Las Vegas Review Journal, even though there exist no evidence in the record that Zandian resides in any of the cites, or even the same country, whereby publication was made.
Even though Margolin alleged that Zandian's last known address was "8401 Bonita Downs Road, Fair Oaks, California," Margolin never attempted service by publication in Fair Oaks, California. Publication Motion, Ex. "1". Also, Margolin alleged to this Court that Zandian resided in Sacramento County, California; however, Margolin did not attempt service by publication there either. Id. at Ex. "2" through '4'.
LEGAL ANALYSIS.
A. The Instant Motion Need Not be Treated as a Motion for Summary Judgment in Order to Grant the Relief Sought by Zandian.
Margolin has suggested that since documents were referenced in the Motion to Dismiss, that motion must be treated as one for summary judgment. The so-called matters outside of the pleadings are references to the Arizona action. These matters, however, are not outside of the pleadings, but instead specifically mentioned in the Complaint. See Am. Compl., ¶¶ 17-18. Thus, Zandian
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referenced matters complete inside, not outside, the pleadings. Moreover, Zandian referenced a court-produced docket that is worthy of judicial notice in any jurisdiction.
Notwithstanding, "[w]hen the complaint shows on its face that the cause of action is barred, the burden falls upon the plaintiff to satisfy the court that the bar does not exist." Kellar v. Snowden, 87 Nev. 488, 491, 489 P.2d 90, 92 (1971) (although affidavit accompanied motion to dismiss, motion to dismiss was properly granted because "the defense of the statute of limitations appears from the complaint itself."). Here, the Amended Complaint contains an admission that the instant action has already been litigated, or should have been litigated, before a United States District Court in Arizona. See Am. Compl., ¶¶ 17-18. Margolin has not met his burden to show this Court why the same transactions and occurrences should now be re-litigated in Nevada. Thus, the Amended Complaint must be dismissed. Moreover, dismissal is proper because the defense related to issue/claim preclusion or res judicata can be ascertained from the Amended Complaint itself.
Apparently, Margolin seeks conversion of the instant motion to one for summary judgment for the sole purpose of attempting to invoke Rule 56(f) as a means to continue this two-year old litigation. This argument, however, must fail because one need not go any further than the Amended Complaint to ascertain that the same transactions and occurrences have been litigated before in another jurisdiction. See Am. Compl., ¶¶ 17-18.
B. Plaintiff Has Not Met His Burden Regarding General Personal Jurisdiction.
As stated in the initiating motion, "[t]he 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
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actions complained of herein in Storey County." Margolin makes this allegation so 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 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.
Margolin alleged, not in the Amended Complaint, but instead in the Opposition, that because business entities in which Zandian is a stockholder or member have had "substantial" or "continuous and- systematic" contacts with the state, then Zandian himself has had sufficient contacts with the state to allow for personal jurisdiction over him in his individual capacity. See Opposition. This sort of reasoning is repugnant to the principles regarding stockholder immunity. See citation and additional argument, infra.
Margolin also alleged, not in the Amended Complaint, but instead in the Opposition, that Zandian personally owns real property in Nevada, however, none of that property is alleged to be within Carson City where the instant action is pending. Thus, this Court's jurisdiction has no alleged contacts with Zandian in his personal capacity whatsoever. Notwithstanding, Zandian's alleged real property ownership has no nexus whatsoever to the acts complained of in the Amended Complaint. Moreover, Margolin does not reside in Carson City, but instead in Storey County, which has its own jurisdiction.
In sum, two years into the action, there is nothing in the Amended Complaint that is sufficient to allow the Court to exercise personal jurisdiction over Zandian in his individual capacity.
C. Plaintiff Has Not Met His Burden Regarding Specific Personal Jurisdiction.
Margolin has cited McCulloch Corp. V. O'Donnell, 83 Nev. 396, 433 P.2d 839 (1967), to stand for the proposition that mere ownership in property within the forum state is adequate to allow the forum state to exercise personal jurisdiction over a non-resident defendant. In McCullouch, the Court granted the non-resident defendant a writ of prohibition "to prevent the lower court from exercising further jurisdiction" after the lower court denied the defendant's motion to dismiss.
Margolin highlighted in bold on of the statements in McCulloch: "In this case it must amount to owning property or doing business within this states." In McCulloch, the ownership in a certain
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real property and a certain business were relevant to the Court's inquiry because the case was centered on an injury that occurred on certain real property owned by a certain business. The Court did not end its inquiry with real property ownership in the forum state. In fact, the Court stated that "[t]he mere fact of stock ownership by one corporation in another does not authorize jurisdiction over the stockholder corporation." Id. at 399. The Court also held that "[f]ormer ownership is not sufficient to impose continuing answerability to jurisdiction absent other circumstances." Id. at 398.
This case, unlike McCulloch, does not involve any real property. Period. Thus, Zandian's alleged ownership in real property in the forum state is irrelevant. Also, this case does not involve any business owned in sole proprietorship by Zandian. The mere fact that Zandian is a stockholder or membership in certain limited liability entities or corporations does give the Court jurisdiction over Zandian personally. In fact, such a notion regarding personal jurisdiction on this basis is specifically prohibited under the doctrine of stockholder immunity. Id. at 399 (Court explained that "[t]o hold other wise would be to disregard the principles of stockholder immunity and would further lead to the impractical result of holding stockholders of any corporation responsible in the event of an injury on corporate property").
D. Margolin's Claims are Barred on the Grounds of Claim Preclusion.
Margolin is correct in his assessment of the test regarding claim preclusion. See Am. Compl. p. 14,11. 19-23. The three-part test involves: (1) whether the parties or their privies are the same; (2) whether the final judgment is valid; and (3) whether subsequent action is based on the same claims or any part of them that were or could have been brought in the first case. See Five Star Capital Corp. v. Ruby, 124 Nev. 1028, 194 P.3d 709, 713 (2008).
The parties (or their privies) are the same. Margolin was involved in the Arizona action. Ex. 29. Margolin's privy, OTG brought a cross-claim against OTC, and alleged that Zandian was involved with OTC. Id. Maroglin is the plaintiff in this action. Am. Compl. Margolin is bringing claims against Zandian and OTC in this action. Id.
The judgment is final: Margolin attached as Exhibit "A" to the Amended Complaint a copy of the final judgment attained in the Arizona action. Am. Compl.
The claims or any part of them were litigated or could have been litigated in the Arizona
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action. Compare Ex. 29 and Am. Compl.
Thus, all three parts of the test are unequivocally satisfied, and the Court need not go any further than the matters alleged in the Amended Complaint to find the same. Period.
Margolin's apparent counterargument is without merit. Margolin alleges that the parties and privies are different because Margolin, agent of OTG was not the plaintiff in Arizona, but instead was a cross claimant. This argument is sufficiently self-defeating on its face without more. Margolin does not even argue whether the judgment was final in the Arizona action, and Margolin has argued that the claims could not have been brought in Arizona because they are now brought under different banners, although alleging the same transactions and occurrences. This argument too is sufficiently self-defeating without more.
Margolin was not required to bring a cross-claim against OTC or Zandian in the Arizona action, but he did. See Executive Management, Ltd. v. Ticor Title Ins. Co., 114 Nev. 823, 834-838, 963 P.2d 465, 473-475 (1998). That cross-claim has been litigated to a final judgment. Now, Margolin brings it again. The only thing preventing Margolin from bringing the same action over and over again before several different courts in several different states in which Zandian may own real property is the fact that Margolin brought a cross-claim in the Arizona action against OTC, alleging that Zandian was behind OTC, and that action is now closed by final judgment. Margolin, therefore, is done, and it is up to this Court to tell him so.
The Court, accordingly, is left with no other option than to dismiss the instant action based upon claim preclusion alone, notwithstanding the lack of personal jurisdiction and lack of sufficient service.
IV. CONCLUSION.
Whether the Court feels that Zandian should be dismissed by the instant motion to dismiss, or whether the Court deems that the instant motion has been converted to one for summary judgment has no real effect: either way, Zandian must be dismissed out of the instant action as a matter of law. Whether the Court deems that the dismissal should be on the grounds of insufficient service, lack of personal jurisdiction or claim preclusion, Zandian must be dismissed out of the action as a matter
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of law. Zandian hereby reserves his rights to attorney's fees and costs, as well as his right to bring a subsequent motion to dismiss, or motion for summary judgment, upon other grounds.
DATED this 12th day of December, 2011.
______________________
JOHN PETER LEE
BY ______________________
JOHN PETER LEE, ESQ.
Nevada Bar No. 0068
JOHN F. COURTNEY, ESQ.
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 12th day of December, 2011, a copy of the foregoing REPLY TO OPPOSITION TO MOTION TO DISMISS 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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