United States District Court, D. Hawaii
ORDER (1) GRANTING IN PART AND DENYING IN PART MOTION
TO DISMISS FIRST AMENDED COMPLAINT, AND (2) NOTIFYING
PLAINTIFF OF DEFICIENCY IN SERVICE
DERRICK K. WATSON, JUDGE
of America, Inc. (“SOA”), the only defendant that
appears to have been served in this action, moves for
dismissal of the first amended complaint (“FAC”)
on the principal grounds that (1) this Court lacks personal
jurisdiction over SOA, and (2) this Court lacks
subject-matter jurisdiction over this entire case. As set
forth below, the Court agrees that personal jurisdiction is
lacking over SOA, and thus, GRANTS the motion to dismiss to
the extent that SOA shall be dismissed without prejudice on
that basis. The Court disagrees, however, at least at this
juncture in the proceedings, that subject-matter jurisdiction
does not exist. Therefore, the motion to dismiss is DENIED in
that regard. Finally, because the record reflects that
service has not been completed on Subaru Corporation, the
only remaining defendant in this action, the Court notifies
Plaintiff Slezak of the foregoing deficiency and of the need
to timely correct the same in order to avoid dismissal of the
23, 2019, this Court entered an order, dismissing certain of
Slezak's claims, allowing other claims to proceed, and
directing the U.S. Marshal to serve the Summons and the FAC
on the named defendants-SOA and Subaru Corporation
(collectively, “the Subaru Defendants”). Dkt. No.
11. More specifically, the Court allowed a claim for breach
of contract to proceed against Subaru Corporation, and claims
for breach of the implied warranty of merchantability,
breaches of certain express warranties, and violations of the
Magnuson-Moss Act (“MMA”) to proceed against the
December 6, 2019, SOA filed the instant motion to dismiss.
Dkt. No. 20. At the same time, SOA filed a waiver of service
of Summons on its behalf. Dkt. No. 22. A waiver of service of
Summons has not been filed by Subaru Corporation and, on
December 11, 2019, the Summons was returned unexecuted as to
the same. Dkt. No. 26. After the filing of the motion to
dismiss, the Court set a hearing for the same on January 17,
2020. Dkt. No. 24. As a result, pursuant to Local Rule 7.2, a
response to the motion to dismiss was due no later than
December 27, 2019. No such response, however, has been
Subject Matter Jurisdiction
Rule of Civil Procedure 12(b)(1) allows a party to move for
dismissal on the ground of a lack of subject-matter
jurisdiction. A party may do so through a facial and/or
factual attack. Savage v. Glendale Union High Sch.,
343 F.3d 1036, 1040 n.2 (9th Cir. 2003). In other words, a
party can challenge subject-matter jurisdiction facially by
confining the inquiry to allegations in the complaint or
factually by presenting affidavits or other evidence.
Id. The burden of establishing subject-matter
jurisdiction rests on the party asserting it, here, Slezak.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994).
to Federal Rule of Civil Procedure 12(b)(2), a defendant may
move for dismissal due to a lack of personal jurisdiction.
When a defendant does so, “the plaintiff bears the
burden of establishing that jurisdiction is proper.”
Mavrix Photo, Inc. v. Brand Technologies, Inc., 647
F.3d 1218, 1223 (9th Cir. 2011). As in this case, when an
evidentiary hearing is not held, while the plaintiff cannot
rest on the allegations of its complaint, uncontroverted
allegations may be taken as true. However, a court cannot
take as true allegations that are contradicted by affidavit.
appears to be premised on two sources of federal
subject-matter jurisdiction, both of which, in the end, turn
on the amount in controversy. The first basis is the
Magnuson-Moss Act (MMA), which provides that a claim
thereunder cannot be brought in federal court unless the
amount in controversy is at least $50, 000. 15 U.S.C.
§§ 2310(d)(1)(B), (d)(3). The second basis is
diversity jurisdiction, which requires a plaintiff to show
that his citizenship is diverse from all defendants and that
the amount in controversy exceeds $75, 000. Crum v.
Circus Circus Enterprises, 231 F.3d 1129, 1131 (9th Cir.
2000) (citing 28 U.S.C. § 1332(a)).
motion to dismiss, SOA does not present a factual attack on
this Court's subject-matter jurisdiction because it has
not presented any affidavits or other evidence in that
regard. Instead, SOA confines itself to the
allegations of the FAC-a facial attack. With that in mind, as
this Court explained in an earlier order,
“[o]rdinarily, if made in good faith, the amount
‘claimed by the plaintiff' controls at the
dismissal stage of proceedings.” 3/28/19 Order at 8,
Dkt. No. 7 (quoting St. Paul Mercury Indem. Co. v. Red
Cab Co., 303 U.S. 283, 288-289 (1938)).
FAC, Slezak claims that the amount in controversy exceeds
$75, 000, stating that he seeks return of the “purchase
price of the vehicle” and consequential damages in
excess of $200, 000. FAC at 2, 4. The consequential damages
portion of Slezak's demand appears to be premised on
damage to Slezak's unidentified business and costs Slezak
incurred in repairing his vehicle and in obtaining a rental
car. See id. at 3-4. As SOA points out, these
assertions are vague at ...