Free Motion to Dismiss/Lack of Jurisdiction - District Court of California - California

Case 3:08-cv-01509-H-AJB

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Filed 08/22/2008

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1 LATHAM & WATKINS LLP 2 3 4 5 6
Belinda S Lee (Bar No. 199635) [email protected] Courtney E. Vaudreuil (Bar No. 223439) [email protected] Nikoo N. Berenji (Bar No. 255260) [email protected] 355 South Grand Avenue Los Angeles, California 90071 Telephone: (213) 485-1234 Facsimile: (213) 891-8763 AutoZone, Inc. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

7 Attorneys for Defendant 8 9 10 11 12 MATTHEW WATKINS, on behalf of 13 14 15
v. AUTOZONE, INC., a Nevada inclusive Defendants. Hearing Date: September 22, 2008 Time: 10:30 a.m. Dept.: 13 himself and all others similarly situated, Assigned to: Honorable Marilyn L. Huff Plaintiff, CASE NO. 08-CV-1509-H-AJB

CLASS ACTION
NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

16 corporation, and DOES 1 through 50, 17 18 19 20 21 22 23 24 25 26 27 28
ATTORNEYS AT LAW LOS ANGELES

NOTICE OF MOTION AND MOTION TO DISMISS CASE NO. 08-CV-1509-H-AJB

Case 3:08-cv-01509-H-AJB

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1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2
PLEASE TAKE NOTICE that on September 22, 2008 at 10:30 a.m., or as

3 soon thereafter as the matter may be heard, before the Honorable Marilyn L. Huff of the 4 United States District Court, Southern Division, Edward J. Schwartz Federal Building, 5 Suite 4290, 880 Front Street, San Diego, California, Courtroom 13, Defendant AutoZone, 6 Inc. will and does hereby move pursuant to rule 12(b)(2) of the Federal Rules of Civil 7 Procedure for an order dismissing Plaintiff's Class Action Complaint on the grounds that 8 personal jurisdiction over AutoZone, Inc. does not exist as that company does not own or 9 operate AutoZone retail locations, or otherwise do business, in California. 10
This motion is based on this Notice of Motion and Motion, the

11 accompanying Memorandum of Points and Authorities, the Declaration of Brian 12 Hutchinson filed concurrently herewith, the contents of the file in this action, and 13 whatever and further evidence and argument is presented at the hearing of this motion. 14 15 DATED: August 22, 2008 16 17 18 19 20 21 22 23 24 25 26 27 28
ATTORNEYS AT LAW LOS ANGELES

Respectfully submitted, LATHAM & WATKINS LLP Belinda S Lee Courtney E. Vaudreuil Nikoo N. Berenji By /s/ Courtney E. Vaudreuil Courtney E. Vaudreuil Attorneys for Defendant AUTOZONE, INC. E-mail: [email protected]

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NOTICE OF MOTION AND MOTION TO DISMISS CASE NO. 08-CV-1509-H-AJB

Case 3:08-cv-01509-H-AJB

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1 2

PROOF OF SERVICE

I am employed in the County of Los Angeles, State of California. I am over 3 the age of 18 years and not a party to this action. My business address is Latham & Watkins LLP, 355 South Grand Avenue, Los Angeles, CA 90071-1560. 4 On August 22, 2008, I served the following document described as: 5 6
NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

7 by serving a true copy of the above-described document in the following manner: BY OVERNIGHT MAIL DELIVERY 8 I am familiar with the office practice of Latham & Watkins LLP for collecting and processing documents for overnight mail delivery by Express Mail 9 or other express service carrier. Under that practice, documents are deposited with the Latham & Watkins LLP personnel responsible for depositing documents in a 10 post office, mailbox, subpost office, substation, mail chute, or other like facility regularly maintained for receipt of overnight mail by Express Mail or other express 11 service carrier; such documents are delivered for overnight mail delivery by Express Mail or other express service carrier on that same day in the ordinary 12 course of business, with delivery fees thereon fully prepaid and/or provided for. I deposited in Latham & Watkins LLP' interoffice mail a sealed envelope or 13 package containing the above-described document and addressed as set forth below in accordance with the office practice of Latham & Watkins LLP for 14 collecting and processing documents for overnight mail delivery by Express Mail or other express service carrier: 15 James M. Lindsay, Esq. Attorneys for Plaintiff Matthew 16 Gene J. Stonebarger, Esq. Watkins Richard D. Lambert, Esq. 17 Lindsay & Stonebarger 620 Coolidge Drive, Suite 225 18 Folsom, CA 95630 Telephone: (916) 294-0002 19 Facsimile: (916) 294-0012 email: [email protected] 20 [email protected] 21 James R. Patterson, Esq. Attorneys for Plaintiff Matthew Cary A. Kinkead, Esq. Watkins 22 HARRISON, PATTERSON & O'CONNOR LLP 23 402 West Broadway, 29th Floor San Diego, CA 92101 24 Telephone: (619) 756-6990 Facsimile: (619) 756-6991 25 email: [email protected] [email protected] 26 27 28
ATTORNEYS AT LAW

Case 3:08-cv-01509-H-AJB

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1

I declare that I am employed in the office of a member of the Bar of, or 2 permitted to practice before, this Court at whose direction the service was made and declare under penalty of perjury under the laws of the State of California that 3 the foregoing is true and correct. 4 Executed on August 22, 2008, at Los Angeles, California. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
ATTORNEYS AT LAW

/s/ Nancy Renteria

Nancy Renteria

Case 3:08-cv-01509-H-AJB

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1 LATHAM & WATKINS LLP 2 3 4 5 6
Belinda S Lee (Bar No. 199635) [email protected] Courtney E. Vaudreuil (Bar No. 223439) [email protected] Nikoo N. Berenji (Bar No. 255260) [email protected] 355 South Grand Avenue Los Angeles, California 90071 Telephone: (213) 485-1234 Facsimile: (213) 891-8763 AutoZone, Inc. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

7 Attorneys for Defendant 8 9 10 11 12 MATTHEW WATKINS, on behalf of 13 14 15
v. AUTOZONE, INC., a Nevada inclusive Defendants. himself and all others similarly situated, Assigned to: Honorable Marilyn L. Huff Plaintiff, CASE NO. 08-CV-1509-H-AJB

CLASS ACTION
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION Hearing Date: September 22, 2008 Time: 10:30 a.m. Dept.: 13

16 corporation, and DOES 1 through 50, 17 18 19 20 21 22 23 24 25 26 27 28
ATTORNEYS AT LAW LOS ANGELES

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION ­ Case No. 08-CV-1509-H-AJB

Case 3:08-cv-01509-H-AJB

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1 2 I. 3

MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Plaintiff Matthew Watkins alleges that AutoZone, Inc. violated California

4 Civil Code section 1747.08, Business and Professions Code section 17200 et seq., and the 5 California Constitution by purportedly requesting personal information from customers 6 purchasing items with a credit card at AutoZone retail locations in California. Because 7 AutoZone, Inc. neither owns nor operates any retail locations in California, it hereby 8 moves to dismiss Plaintiff's Complaint for lack of personal jurisdiction pursuant to 9 Federal Rules of Civil Procedure rule 12(b)(2). 10 II. 11
PROCEDURAL BACKGROUND On July 15, 2008, Plaintiff filed his Complaint in the Superior Court of the

12 State of California for the County of San Diego, Civil Case No. 37-2008-00087672-CU13 BT-CTL. On August 15, 2008, AutoZone, Inc. removed the case to this Court pursuant 14 to 28 U.S.C. §1441. This Court has original jurisdiction pursuant to 28 U.S.C. 15 §1332(d)(2). 16 III. 17 18
ARGUMENT

A.

AutoZone, Inc. Does Not Have Minimum Contacts With California Exercise of personal jurisdiction over an out-of-state defendant "comports

19 with due process when the out-of-state defendant maintains `certain minimum contacts 20 with [the forum state] such that maintenance of the suit does not offend traditional 21 notions of fair play and substantial justice.'" Northwest Healthcare Alliance Inc. v. 22 Healthgrades.Com, Inc., 50 Fed.Appx. 339, 340 (9th Cir. 2002) (citing Int'l Shoe Co. v. 23 Washington, 326 U.S. 310, 315 (1945)). No such contacts exist here. 24
Plaintiff states in his Complaint upon "information and belief" that

25 AutoZone, Inc. is a Nevada corporation with its principal place of business in California, 26 and that AutoZone, Inc. operates AutoZone retail locations in California. Complaint ¶ 9. 27 Plaintiff is mistaken. AutoZone, Inc. is a Nevada corporation with its principal place of 28 business in Tennessee. Hutchinson Decl. ¶ 2. AutoZone, Inc. does not own or operate
ATTORNEYS AT LAW LOS ANGELES

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION ­ Case No. 08-CV-1509-H-AJB

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1 the AutoZone retail location where Plaintiff made his purchase.1 Id. at ¶ 4; see also 2 Complaint ¶ 13. Nor does AutoZone, Inc. own or operate any other retail location within 3 the State of California. Hutchinson Decl. ¶ 4. In 2004, AutoZone Inc. transferred 4 ownership of its California retail locations to AutoZone Parts, Inc., and is currently a 5 holding company that owns stock in various subsidiaries. Id. at ¶¶ 3-4. AutoZone, Inc. 6 does not currently own or operate any retail locations in California nor conduct any other 7 business in California. Id. at ¶ 4. 8 9 B.
There Is No Basis For Finding General Or Specific Jurisdiction When personal jurisdiction is challenged, the burden shifts to the plaintiff

10 to show why the exercise of jurisdiction is proper. See Doe v. Unocal Corp., 248 F.3d 11 915, 922 (9th Cir. 2001). 12
There are two types of personal jurisdiction: general and specific. See

13 Reebok Int'l, Ltd. v. McLaughlin, 49 F.3d 1387, 1391 (9th Cir. 1995), cert. denied, 516 14 U.S. 908, 116 S.Ct. 276, 133 L.Ed.2d 197 (1995). "The basic rule is that the defendant 15 must have certain minimal contacts with the forum such that maintenance of the suit does 16 not offend traditional notions of fair play and substantial justice." See Data Disc., Inc. v. 17 Systems Tech. Assocs., Inc., 557 F.2d 1280, 1287 (9th Cir. 1977). The standard for 18 establishing general jurisdiction is "`fairly high,' and requires that the defendant's 19 contacts be of the sort that approximate physical presence." Bancroft & Masters v. 20 Augusta Nat'l, 223 F.3d 1082, 1086 (9th Cir. 2000). "This is an exacting standard, as it 21 should be, because a finding of general jurisdiction permits a defendant to be haled into 22 court in the forum state to answer for any of its activities anywhere in the world." 23 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir. 2004). 24
Here, AutoZone, Inc. is neither incorporated nor headquartered in

25 California. Hutchinson Decl. ¶ 2. AutoZone, Inc. does not operate retail stores in 26
1

27 his purchase, or any other California AutoZone retail location, Plaintiff's substantive 28
ATTORNEYS AT LAW LOS ANGELES

Because AutoZone, Inc. does not own or operate the retail store where Plaintiff made

claims are also without merit.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION ­ Case No. 08-CV-1509-H-AJB

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1 California or do any other business in California. Id. at ¶ 4. In the absence of any such 2 contacts, Plaintiff cannot establish the requisite "approximate physical presence" of 3 AutoZone, Inc. in California. Thus, the Court cannot exercise general jurisdiction over 4 AutoZone, Inc. 5
Where a defendant's contacts are insufficient to establish general

6 jurisdiction, a forum may exercise "specific jurisdiction." Yahoo! Inc. v. La Ligue Contre 7 Le Racisme, 433 F.3d 1199, 1205 (9th Cir. 2006). In order to meet this burden, Plaintiff 8 must show that: (1) AutoZone, Inc. "purposefully availed itself of the privilege of 9 conducting activities in the forum state invoking the benefits and protections of the forum 10 state's laws"; (2) Plaintiff's claim arises from AutoZone, Inc.'s "forum-related 11 activities"; and (3) exercise of jurisdiction over AutoZone, Inc. is reasonable. See 12 Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995). The plaintiff bears the burden of 13 satisfying the first two prongs, and if he fails to do so, personal jurisdiction is not 14 established. See Schwarzenegger, 374 F.3d at 802. 15
Plaintiff is unable to meet his burden because AutoZone, Inc. does not

16 "conduct activities" within California. Moreover, Plaintiff cannot meet the second prong 17 because AutoZone, Inc. does not own or operate retail locations in California and 18 Plaintiff's claims are related to retail transaction at such stores. It would be patently 19 unreasonable to allow Plaintiff's claims against AutoZone, Inc. to proceed. 20 21 22 23 24 25 26 27 28
ATTORNEYS AT LAW LOS ANGELES

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION ­ Case No. 08-CV-1509-H-AJB

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1 IV. 2

CONCLUSION
For the foregoing reasons, AutoZone, Inc. respectfully requests that the

3 Court grant its motion to be dismissed from this case. 4 5 Dated: August 22, 2008 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
ATTORNEYS AT LAW LOS ANGELES

Respectfully submitted, LATHAM & WATKINS LLP Belinda S Lee Courtney E. Vaudreuil Nikoo N. Berenji /s/ Courtney E. Vaudreuil By Courtney E. Vaudreuil Attorneys for Defendant AutoZone, Inc.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION ­ Case No. 08-CV-1509-H-AJB

Case 3:08-cv-01509-H-AJB

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PROOF OF SERVICE

I am employed in the County of Los Angeles, State of California. I am over 3 the age of 18 years and not a party to this action. My business address is Latham & Watkins LLP, 355 South Grand Avenue, Los Angeles, CA 90071-1560. 4 On August 22, 2008, I served the following document described as: 5 6
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

7 by serving a true copy of the above-described document in the following manner: BY OVERNIGHT MAIL DELIVERY 8 I am familiar with the office practice of Latham & Watkins LLP for collecting and processing documents for overnight mail delivery by Express Mail 9 or other express service carrier. Under that practice, documents are deposited with the Latham & Watkins LLP personnel responsible for depositing documents in a 10 post office, mailbox, subpost office, substation, mail chute, or other like facility regularly maintained for receipt of overnight mail by Express Mail or other express 11 service carrier; such documents are delivered for overnight mail delivery by Express Mail or other express service carrier on that same day in the ordinary 12 course of business, with delivery fees thereon fully prepaid and/or provided for. I deposited in Latham & Watkins LLP' interoffice mail a sealed envelope or 13 package containing the above-described document and addressed as set forth below in accordance with the office practice of Latham & Watkins LLP for 14 collecting and processing documents for overnight mail delivery by Express Mail or other express service carrier: 15 James M. Lindsay, Esq. Attorneys for Plaintiff Matthew 16 Gene J. Stonebarger, Esq. Watkins Richard D. Lambert, Esq. 17 Lindsay & Stonebarger 620 Coolidge Drive, Suite 225 18 Folsom, CA 95630 Telephone: (916) 294-0002 19 Facsimile: (916) 294-0012 email: [email protected] 20 [email protected] 21 James R. Patterson, Esq. Attorneys for Plaintiff Matthew Cary A. Kinkead, Esq. Watkins 22 HARRISON, PATTERSON & O'CONNOR LLP 23 402 West Broadway, 29th Floor San Diego, CA 92101 24 Telephone: (619) 756-6990 Facsimile: (619) 756-6991 25 email: [email protected] [email protected] 26 27 28
ATTORNEYS AT LAW LOS ANGELES

Case 3:08-cv-01509-H-AJB

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I declare that I am employed in the office of a member of the Bar of, or 2 permitted to practice before, this Court at whose direction the service was made and declare under penalty of perjury under the laws of the State of California that 3 the foregoing is true and correct. 4 Executed on August 22, 2008, at Los Angeles, California. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
ATTORNEYS AT LAW LOS ANGELES

/s/ Nancy Renteria

Nancy Renteria

Case 3:08-cv-01509-H-AJB

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