NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 8 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ADAM PERZOW, No. 19-55763

Plaintiff-Appellant, D.C. No. 2:19-cv-02318-R-FFM v.

MOSHE HOGEG; KENGES RAKISHEV; MEMORANDUM*

JOSEPH CHEN; DOES, 2-10, 12-20,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding

Submitted August 14, 2020** Pasadena, California

Before: CALLAHAN, BUMATAY, and VANDYKE, Circuit Judges.

Adam Perzow (“Perzow”) appeals the district court’s grant of Moshe Hogeg’s

(“Hogeg”) motion to dismiss for lack of personal jurisdiction. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). We review de novo a district court’s dismissal for lack of personal

jurisdiction, Axiom Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d 1064, 1067 (9th Cir.

2017), and we may affirm the district court on any basis supported by the record.

Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983, 992 (9th

Cir. 2012). A district court has specific personal jurisdiction where (1) the non-

resident defendant “purposefully avails himself of the privilege of conducting

activities in the forum,” (2) the claim “arises out of or relates to the defendant’s

forum-related activities,” and (3) exercising jurisdiction is reasonable.

Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004)

(“Terminator Test”).1 Only the first prong of Terminator Test is at issue here.2

Perzow claims Hogeg purposefully availed himself of jurisdiction in

California in two ways. First, he alleges the parties formed an Oral Joint-Venture

Agreement (“OJVA”) at a November 3, 2014 meeting in Los Angeles. Second, he

argues Hogeg’s telephonic, email, and in-person negotiations with Perzow regarding

both the alleged OJVA and a separate, written Asset Purchase Agreement (“APA”)

1 The “Terminator Test” arose from a dispute over the unauthorized use of the likeness of Schwarzenegger’s Terminator character. Schwarzenegger, 374 F.3d at 799. If a plaintiff’s claim fails to meet all three prongs of the test, the court must “terminate” the suit for lack of personal jurisdiction. Id. at 802, 807. 2 Perzow’s complaint alleges breach of an oral contract he and Hogeg purportedly negotiated and/or executed in California. See Sher v. Johnson, 911 F.2d 1357, 1362 (9th Cir. 1990).

2 for the sale of the web domain “Invest.com” together constitute purposeful

availment.3 Neither theory persuades.

Perzow fails to make a prima facie showing that he and Hogeg formed the

OJVA in Los Angeles on November 3, 2014. Schwarzenegger, 374 F.3d at 800

(when a motion to dismiss is based on documentary evidence, the plaintiff need only

make a prima facie case that personal jurisdiction is proper). In fact, Perzow’s own

supporting documentation fatally undermines this argument. In an email to Hogeg

the day after the November 3, 2014 meeting in Los Angeles, Perzow confirms the

parties did not form the OJVA the night before. (“Instead of focusing on what was

discussed between us before I signed the [APA] with you, and whether or not my

involvement was a condition for me singing [sic] the contract, I think its [sic] just

easier for us to discuss a role for me in the business” (emphasis added).) At the very

best, this email shows Perzow encouraging Hogeg to negotiate an agreement that

would accommodate Perzow’s desire to be involved with Invest.com. See

Bustamante v. Intuit, Inc., 45 Cal. Rptr. 3d 692, 703 (Cal. Ct. App. 2006)

(“Preliminary negotiations or [agreements] for future negotiations are not the

3 Perzow also claims Hogeg purposely availed himself of the forum by talking up his other California-based busines activities, which allegedly coaxed Perzow into selling Invest.com and entering the OJVA.

3 functional equivalent of a valid, subsisting agreement.”).4 Although Perzow’s

burden of proof at this stage is minimal, he cannot carry it.

His remaining arguments overstate California’s importance to this alleged

deal. Hogeg’s representations about his other California-based businesses may well

have helped induce Perzow to sign the APA and enter the alleged OJVA, but they

had absolutely no bearing on whether the future performance under the alleged

OJVA bore any connection to California. See Picot v. Weston, 780 F.3d 1206, 1213

(9th Cir. 2015) (observing that contacts are insufficient to create personal

jurisdiction unless they create a substantial connection with the forum).

Hogeg’s emails and phone calls with Perzow while Hogeg was outside of

California, alone, are also insufficient to constitute purposeful availment. See

Peterson v. Kennedy, 771 F.2d 1244, 1262 (9th Cir. 1985) (“[U]se of the mails,

telephone, or other international communications simply do not qualify as

purposeful activity invoking the benefits and protection of the [forum] state,” unless

it creates some substantial connection there.); Picot, 780 F.3d at 1213. And because

4 Perzow’s declarations don’t save him. Neither asserts that the parties negotiated—much less consummated—the alleged OJVA at the November 3 meeting. Both merely confirm negotiations between Hogeg and Perzow took place over the phone in late October 2014, and that the two men met in Los Angeles on November 3, 2014. We are left therefore with Perzow’s bare allegation (contradicted by his own documentary evidence) that the parties formed the OJVA at the Los Angeles meeting. See Amba Mktg. Sys., Inc. v. Jobar Int’l, Inc., 551 F.2d 784, 787 (9th Cir. 1977); see also Colony Cove Properties, LLC v. City of Carson, 640 F.3d 948, 955 (9th Cir. 2011) (“[We] need not accept as true conclusory allegations that are contradicted by documents referred to in the complaint”).

4 Perzow argues that the parties entered the OJVA (the only alleged agreement at issue

here) in Los Angeles on November 3, 2014, he fails to make a prima facie case that

the parties entered an agreement separate from the APA during these phone

conversations that otherwise might create a substantial connection justifying

jurisdiction. Peterson, 771 F.2d at 1262.

Similarly, negotiating a contract in the forum, by itself, is not purposeful

availment unless the proposed contract envisions a substantial connection with the

forum state. Picot, 780 F.3d at 1213; Boschetto v. Hansing, 539 F.3d 1011, 1017

(9th Cir. 2008) (“As the Supreme Court has expressly cautioned, a contract alone

does not automatically establish minimum contacts in the plaintiff's home forum.”

(citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 480 (1987))); Sher, 911 F.2d

at 1362. Neither Perzow’s complaint nor his supporting declarations allege that the

OJVA had any important connection with California. Apart from the November 3,

2014 meeting and a handful of emails and phone calls exchanged while Perzow or

Hogeg were in-state, California as a forum was largely irrelevant.

Construing all of Perzow’s factual allegations in his favor, see Harris Rutsky

& Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1129 (9th Cir. 2003),

he cannot establish a prima facie case that Hogeg’s contacts with California

underlying the instant claims created a “substantial connection” there. Picot, 780

F.3d at 1212. Hogeg and Perzow shared one meal in California to discuss a

5 concluded New York business deal which, at best, possibly included inconclusive

discussions over Perzow’s future involvement in a web company headquartered in

Israel. Insofar as the claims in this case are involved, between Hogeg and Perzow,

California was little more than a backdrop for one dinner. The district court

accordingly did not err in dismissing this case for lack of personal jurisdiction.

AFFIRMED.

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