Adam Perzow v. Moshe Hogeg

NOT FOR PUBLICATION FILED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).
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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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