Opinion
Civil No. 00-1117-KI
December 7, 2000
James D. Hughes, J. David Zehnthbauer, Hughes and Zehnthbauer, 121 S.W. Morrison, Suite 1020, Portland, Oregon 97204-3140,
Lawrence M. Gottlieb, Hass and Gottlieb, 670 White Plains Road, Suite 121, Scarsdale, New York 10583, Attorneys for Plaintiff
Jon P. Stride, Don H. Marmaduke, Kathryn Powell Dempsey, Tonkon Torp LLP, 1600 Pioneer Tower, 888 S.W. Fifth Avenue, Portland, Oregon 97204-2099, Attorneys for Defendants
OPINION AND ORDER
Before the court is the motion to dismiss (#27) by defendant Carol Y. Bailey ("C. Bailey"). For the reasons set forth below, I grant the motion.
FACTS
Plaintiff Stanley W. Jacob alleges that he entered into a joint venture to sell dimethylsulfone ("MSM") with defendant G. Rex Bailey ("R. Bailey") through defendant Carolwood Corporation ("Carolwood"). He sues Carolwood and R. Bailey, as well as defendant C. Bailey, for profits that were not paid to him. Pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, C. Bailey moves to be dismissed on the ground that this court does not have personal jurisdiction over her.
LEGAL STANDARD
The plaintiff bears the burden of establishing that the court has personal jurisdiction over the defendant. Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990). If no evidentiary hearing is held, a plaintiff can withstand a motion to dismiss by making a prima facie showing of jurisdictional facts which, if true, support jurisdiction over the defendant. Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995).
DISCUSSION
C. Bailey asserts that she is a Canadian citizen and Canadian resident. She has never been physically present in the state of Oregon and, prior to being served with the Complaint in this action, had no contact of any kind with the state of Oregon. She is not an officer, director, or employee of Carolwood and has not made telephone calls or written letters to Oregon on Carolwood's behalf.
Significantly, Jacob does not dispute these allegations. Plaintiff's Opposition Brief, p. 5. Instead, Jacob argues that personal jurisdiction exists over C. Bailey due to her relationships with Carolwood and R. Bailey, for whom personal jurisdiction is not contested. As such, Jacob does not urge a finding of general or specific jurisdiction over C. Bailey, but instead asks me to find a sort of vicarious personal jurisdiction over her.
In the Complaint, Jacob alleges that C. Bailey is a director, officer, and/or shareholder of Carolwood. Complaint, ¶ 7. Jacob further alleges that Carolwood has sold MSM in Oregon and, based on such sales, C. Bailey has engaged in business in the state of Oregon. Id., ¶ 9. On this basis, Jacob alleges that personal jurisdiction exists over C. Bailey.
In opposition to the motion to dismiss, Jacob expands on and deviates somewhat from the jurisdictional allegations contained in the Complaint. Relying on an affidavit filed in this action by R. Bailey, Jacob asserts that C. Bailey is a fifty-percent owner, with R. Bailey, of the corporate parent and owner of Carolwood (Vidot Enterprises, Inc. ("Vidot")). Jacob argues that, in C. Bailey's capacity as a shareholder of Vidot, she is subject to this court's jurisdiction. To reach this conclusion, Jacob asks me to (a) ignore Carolwood as a separate corporate entity from Vidot; and (b) pierce the corporate veil of Vidot to reach C. Bailey. In the alternative, Jacob argues that C. Bailey can be vicariously subject to personal jurisdiction based on R. Bailey's actions as her agent.
Although the parties appear to be in agreement that the key inquiries are whether Carolwood is the alter ego of Vidot and whether Vidot is the alter ego of C. Bailey, it seems inappropriate to be making such inquiries when Vidot is not even a named defendant in this case. Moreover, there are essentially no facts to support a prima facie case of personal jurisdiction, especially if jurisdiction depends on a finding that Vidot is the alter ego of C. Bailey or that R. Bailey acted as C. Bailey's agent. The only facts that Jacob offers is that C. Bailey is a shareholder of Vidot and that Vidot is the parent of Carolwood.
At oral argument, counsel for Jacob essentially conceded that Jacob has not asserted sufficient facts to make a prima facie case of personal jurisdiction. Jacob asks that I hold the motion to dismiss in abeyance while he conducts discovery in an effort to build his personal jurisdiction argument. I reject this request for two reasons. First, this case has been pending since August 11, 2000, yet Jacob has engaged in no discovery. Second, the ownership and organizational structure among C. Bailey, Vidot, and Carolwood strikes me as rather common and ordinary. Notwithstanding the innuendoes and explicit allegations of fraud and connivery contained in Jacob's pleadings, Jacob's case for personal jurisdiction appears tenuous at best and does not merit delaying the resolution of this case.
CONCLUSION
The motion to dismiss (#27) by defendant Carol Y. Bailey is GRANTED.
IT IS SO ORDERED.