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Slezak v. Subaru Corp.

United States District Court, D. Hawaii

January 15, 2020

RICHARD SLEZAK, Plaintiff,
v.
SUBARU CORPORATION, SUBARU OF AMERICA, Defendants.

          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

         Subaru 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 remaining defendant.

         I. Procedural Background

         On May 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 Subaru Defendants.

         On 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 filed.[1]

         II. Legal Standard

         1. Subject Matter Jurisdiction

         Federal 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).

         2. Personal Jurisdiction

         Pursuant 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. Id.

         III. Discussion

         1. Subject-Matter Jurisdiction

         The FAC 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)).

         In the 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.[2] 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)).

         In the 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.[3] 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 ...


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