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8 United States District Court 9 Central District of California

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11 PLUTOS SAMA HOLDINGS, INC., Case № 8:19-CV-01010-ODW (AGRx)

12 Plaintiffs,

ORDER GRANTING

13 v.

MOTION TO DISMISS [35]

14 TORTSEN MAEHLE et al.,

15 Defendants.

16 17 I. INTRODUCTION 18 Before the Court is Defendant Torsten Maehle’s Motion to Dismiss (“Motion”) 19 Plaintiff Plutos Sama Holdings, Inc.’s (“Plutos”) Complaint. (Mot. to Dismiss 20 (“Mot.”), ECF No. 35.) For the following reasons, the Court GRANTS Maehle’s 21 Motion.1 22 II. FACTUAL BACKGROUND 23 Plutos is a holding company with interests across a wide array of industries, 24 including retail consumer markets. (Compl. ¶ 22, ECF No. 1.) Plutos initiated this 25 civil action against Torsten Maehle, Jurg Widmer, Alejandro Widmer, and Clemens 26 Gregor (collectively, the “Widmer Enterprise”), and three other individual 27

28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 defendants—Carlos Politano, Endre Szabari, and Michael Beilenson (collectively, 2 “Defendants”). (Compl. at 2.) Plutos alleges that Defendants engaged in an 3 aggressive and coordinated attack intended to interfere with Plutos’s acquisition and 4 operation of restaurants. (Compl. at 3.) Specifically, Defendants “engaged in a 5 coordinated effort to launder J. Widmer’s ill-gotten gains through the Doral 6 Restaurant” (“Doral”). (Comp. at 2.) Plutos also asserts that Defendants’ actions 7 caused substantial financial harm to its restaurants and jeopardized its larger 8 transaction involving franchise development rights. (Compl. at 3.) 9 Plutos alleges that Defendant Maehle, a Florida resident, was a close friend of 10 Alejandro Widmer and former equity-holder of VAP Sunshine—a Florida limited 11 liability company—which owns a 60% share in Doral. (Compl. ¶ 5.) 12 To achieve its goal of expanding a restaurant franchise in the U.S., Plutos 13 sought to acquire existing franchised restaurants from their majority owner, VAP 14 Sunshine. (Compl. ¶ 23.) Plutos contends that at the time of contemplating these 15 transactions, Plutos was unaware that Doral was funded by a control-seeking, 16 international money-laundering scheme. (Compl. ¶ 24.) Plutos alleges that Maehle 17 knowingly served as Doral’s front-man to disguise the funding source of the scheme, 18 which allegedly was Jurg Widmer’s profits from a Guatemalan bribery scandal. 19 (Compl. ¶¶ 24–27.) 20 The Widmer Enterprise allegedly employed the following three methods to 21 interfere with Plutos’s acquisition and operation of the franchise restaurants, including 22 Doral: (1) initiated an abusive and harassing legal attack against Plutos; (2) assaulted 23 Plutos’s operation of the restaurants; and (3) ran a defamation campaign against 24 Plutos.2 (Compl. ¶¶ 39, 43.) 25 26

2 Plutos alleges that Maehle and the rest of the Widmer Enterprise filed numerous harassing lawsuits, 27 which drained Plutos’s resources and caused it financial harm. (Compl. ¶¶ 43(i), 46.) Plutos also 28 alleges that on March 28, 2019, the Widmer Enterprise unlawfully took over Doral’s physical operations for one day and diverted all Doral’s revenue to the Widmer Enterprise. (Compl. ¶ 43(g).) 1 Based on these allegations, Plutos asserts four causes of action against Maehle: 2 (1) violation of Federal Civil Racketeer Influenced and Corrupt Organizations 3 (“RICO”); (2) conspiracy to violate Federal Civil RICO; (3) civil extortion; and (4) 4 civil conspiracy.3 (Compl. ¶¶ 49–72, 74–78, 82–85, 100–105.) Maehle now moves to 5 dismiss Plutos’s Complaint for a lack of personal jurisdiction, improper venue, 6 impermissible shotgun pleading, and failure to state a claim. (Mot. 7.). 7 III. LEGAL STANDARD 8 A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable 9 legal theory or insufficient facts pleaded to support an otherwise cognizable legal 10 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To 11 survive a dismissal motion, a complaint need only satisfy the minimal notice pleading 12 requirements of Rule 8(a)(2)—a short and plain statement of the claim. Porter v. 13 Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be enough to 14 raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 15 U.S. 544, 555 (2007). That is, the complaint must “contain sufficient factual matter, 16 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 17 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 18 The determination of whether a complaint satisfies the plausibility standard is a 19 “context-specific task that requires the reviewing court to draw on its judicial 20 experience and common sense.” Id. at 679. A court is generally limited to the 21 pleadings and must construe all “factual allegations set forth in the complaint . . . as 22 true and . . . in the light most favorable” to the plaintiff. Lee v. City of Los Angeles, 23 250 F.3d 668, 679 (9th Cir. 2001). However, a court need not blindly accept 24 conclusory allegations, unwarranted deductions of fact, and unreasonable inferences. 25 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 26 27

28 3 The Motion mistakenly states that Maehle is named in five of the six causes of action in Plutos’s Complaint. (Mot. 7.) 1 Where a district court grants a motion to dismiss, it should generally provide 2 leave to amend unless it is clear the complaint could not be saved by any amendment. 3 See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 4 1025, 1031 (9th Cir. 2008). Leave to amend may be denied when “the court 5 determines that the allegation of other facts consistent with the challenged pleading 6 could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture 7 Co., 806 F.2d 1393, 1401 (9th Cir. 1986). Thus, leave to amend “is properly 8 denied . . . if amendment would be futile.” Carrico v. City and Cty. of San Francisco, 9 656 F.3d 1002, 1008 (9th Cir. 2011). 10 IV. DISCUSSION 11 Maehle moves to dismiss Pluto’s Complaint on the following grounds: (1) lack 12 of personal jurisdiction; (2) improper venue; (3) improper shotgun pleading; and (4) 13 failure to state a cause of action. The Court first addresses personal jurisdiction. 14 A. Lack of Personal Jurisdiction 15 Plutos asserts this Court has personal jurisdiction over Maehle and the other 16 Defendants pursuant to 18 U.S.C. § 1965(b). (Compl. ¶ 3.) Although RICO is to be 17 read broadly and liberally construed to effectuate its remedial purposes, the right to 18 nationwide service under section 1965(b) is not unlimited. See Butcher’s Union Local 19 No. 498, United Food & Commercial Workers v. SDC Inv., Inc., 788 F.2d 535, 539 20 (9th Cir. 1986). “[M]erely naming persons in a RICO complaint does not, in itself, 21 make them subject to section 1965(b)’s nationwide service provisions.” Id. For a 22 district court to exercise jurisdiction over nonresident defendants, the court must have 23 personal jurisdiction over at least one of the participants in an alleged multidistrict 24 conspiracy. See id. Additionally, the plaintiff must show that there is no other district 25 in which a court will have personal jurisdiction over all the alleged co-conspirators. 26 See id.; see also Rocawear Licensing LLC v. Pacesetter Apparel Grp., No. CV 06- 27 3093, 2007 WL 5289737, at *6 (C.D. Cal. Sept. 12, 2007). 28 1 If there is no personal jurisdiction per section 1965(b), then the court can assess 2 whether there is a traditional basis for personal jurisdiction under California’s long- 3 arm statute. To establish personal jurisdiction the plaintiff needs to allege and 4 eventually prove that the RICO action arose out of sufficient minimum contacts with 5 California or that the defendants’ activities were so continuous and systematic to 6 render them “present” in California for service of process. See Butcher’s, 788 F.2d at 7 540. Further, once a defendant has challenged the exercise of personal jurisdiction, 8 the plaintiff bears the burden of showing that the court has jurisdiction. Id. at 538. 9 Here, Plutos initially asserted that this Court had personal jurisdiction 10 exclusively under section 1965(b), then in the Opposition claimed that no other 11 district court has personal jurisdiction over all the alleged co-conspirators.4 (Compl. ¶ 12 3; Opp’n 7.) The only apparent connection to California in this alleged conspiracy is 13 that Plutos is a Delaware corporation based in California. None of the defendants 14 reside in California and Plutos failed to allege that any of the complained conduct took 15 place in California. (See generally Compl.) The alleged conspiracy centers around 16 Florida restaurants and the Defendants’ attempts to launder money through those 17 entities. (See Compl. ¶¶ 22–48.) Plutos failed to make specific allegations to identify 18 a multidistrict conspiracy warranting the exercise of personal jurisdiction under 19 section 1965(b) and did not allege that the nonresident Defendants had sufficient 20 contacts with the forum state to justify personal jurisdiction. Therefore, the Court 21 GRANTS Maehle’s motion to dismiss for lack of personal jurisdiction and need not 22 reach the other bases upon which Maehle sought to dismiss Plutos’s Complaint. 23 24 25 4 In the Reply, Maehle urges the Court to ignore Plutos’s Opposition on the basis that it was filed 26 one day late. (Reply to Opp’n 1–2, ECF No. 40.) If the reason for Plutos’s tardiness was due to 27 Maehle’s failure to meet and confer, then the Court would have no other recourse but to deny the Motion without prejudice and allow the parties to properly brief. For the limited purpose of deciding 28 this Motion, the Court will consider the papers both parties submitted. 1] B. Request for Jurisdictional Discovery 2 If the court is inclined to dismiss the case for lack of personal jurisdiction, 3 || Plutos requests jurisdictional discovery to demonstrate that “Maehle participated in a 4|| conspiracy to defraud a California-based entity.” (Opp. 8.) A district court has broad 5 || discretion to permit or deny discovery. Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 6 || F.2d 1280, 1285 n. 1 (9th Cir. 1977). Discovery should ordinarily be granted where “pertinent facts bearing on the question of jurisdiction are controverted or where a 8 | more satisfactory showing of the facts is necessary.” Jd. However, a mere belief that 9 | further discovery will enable a plaintiff to demonstrate sufficient contacts between 10 || defendant and California is insufficient to justify a grant of discovery. Butcher’s, 788 11 || F.2d at 540. Here, simply because Plutos was based in California when the alleged 12 || conspiracy unfolded in the Florida does not serve as grounds for this Court to grant 13 || jurisdictional discovery. Accordingly, the Court DENIES Plutos’s request for 14 || jurisdictional discovery. 15 V. CONCLUSION 16 For the reasons discussed above, the Court GRANTS Defendant Maehle’s 17 || Motion to Dismiss, and GRANTS Plaintiff leave to amend to address the personal 18 || jurisdiction deficiencies. (ECF No. 35). 19 20 IT IS SO ORDERED. 21 Sis “4 22 April 15, 2020 bpehiot 23 24 5 OTIS D. WRIGHT, I

UNITED STATES DISTRICT JUDGE

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