Cox opp to mot dismiss

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KUMMER KAEMPFER BONNER
RENSHAW & FERRARIO
Seventh Floor
3800 Howard Hughes Parkway
Las Vegas, Nevada 89169
MARK E. FERRARIO, ESQ.
Nevada State Bar No. 1625
SHERI ANN FORBES MURRAY, ESQ.
Nevada State Bar No. 7337
KUMMER KAEMPFER BONNER RENSHAW & FERRARIO
3800 Howard Hughes Parkway, Seventh Floor
Las Vegas, Nevada 89169-0913
Telephone: (702) 792-7000
Facsimile: (702) 796-7181
mfen'ario•kkbrf.com
smurray@kkbrf.com
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
COX-LYLE, LLC, dba COX & ASSOCIATES,
a Nevada limited liability company,
Plaintiff,
go
DILLMAN EQUIPMENT, INC., a Wisconsin
corporation; BRUCE DILLMAN, as president
of DILLMAN EQUIPMENT, INC.; TIMOTHY
BULGER, individually and as a manager of
DILLMAN EQUIPMENT, INC.; DOES I
through X, inclusive; ROE CORPORATIONS I
through X, inclusive.
Defendants.
Case No. 2:08-CV-00284-PMP-LRL
OPPOSITION TO DEFENDANTS'
MOTION TO DISMISS PLAINTIFF'S
COMPLAINT, OR, IN THE
ALTERNATIVE, TRANSFER VENUE
Plaintiff COX-LYLE, LLC, a Nevada limited liability company, doing business as COX
& ASSOCIATES, by and through its counsel, Kummer Kaempfer Bonner Renshaw & Ferrario,
hereby files its Opposition To Defendants' Motion To Dismiss Plaintiff's Complaint, Or, In The
Alternative, Transfer Venue. This Opposition is based on the pleadings and papers on file
523868_1.D0C 150701 Page of l2
Case 2:08-cv-00284-PMP-LRL Document 16 Filed 05/31/08 Page 1 of 12

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RENSHAW & FERRARIO
Seventh Floor
herein, the following Memorandum of Points and Authorities and any and all oral arguments
allowed by the Court at the time of hearing.
DATED this
"•[• day of May, 2008.
RENSHAW & FERRARIO
MARK E. FERRA•(O, ESQ. (/
3800 Howard Hughes Parkway, 7 th Floor
MEMORANDUM OF POINTS AND AUTHORITIES
I. STANDARD OF REVIEW
Defendants bring the present motion to dismiss Plaintiff's Complaint for lack of personal
jurisdiction. When a defendant challenges a court's exercise of personal jurisdiction, the plaintiff
need only present evidence and make allegations to make a prima facie showing of personal
jurisdiction to defeat the defendant's motion to dismiss. Myers v. Bennett Law Offices, 238 F.3d
1068, 1071 (9 th Cir. 2001); see also Firouzabadi v. Dist. Ct., 110 Nev. 1348, 1351, 885 P.2d 616,
619 (1994). In the present case, Plaintiff provides the Court with ample, competent evidence to
defeat Defendants' motion, as discussed infra.
In the alternative, Defendants ask this Court to transfer venue to the Western District of
Wisconsin. It is Defendant's burden in bringing a motion to transfer venue to show that (1)
venue would be proper in the Western District of Wisconsin, (2) that the action could have been
brought there originally, and (3) that the interests of justice will be promoted and the
convenience of the parties and witnesses would be served. See Lucarelli v. DVA Renal
Healthcare, Inc., 2008 WL182246 at *3 (D. Nev. 2008). Here, as will be discuss below,
523868_1.D0C 15070,1
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RENSHAW & FERRARIO
Seventh Floor
Defendants have not met their burden to show that venue would be proper in the Western District
of Wisconsin, that the action could have been brought there, nor that justice would be promoted
or that the convenience of the parties would be served by transferring this case to the Western
District of Wisconsin.
II. STATEMENT OF RELEVANT FACTS
Preliminarily, contrary to what Defendants' brief claims, Defendant Timothy Bulger
("Bulger") is a resident of Illinois, not Wisconsin. See Declaration of Robert Cox ("Decl.") at ¶
7 attached hereto as Exhibit 1. Additionally, the telephone numbers listed for Bulger on
Defendant Dillman Equipment, Inc.'s ("DEI') website for Bulger's office, cell and fax phone
numbers start with a Chicago area suburb area code. See http://www.dillmanequipment.com, last
visited May 28, 2008, (the "DEI Website") attached hereto as Exhibit 2;
http://www.whitepages.com/maps/CHI, last visited May 30, 2008. Moreover, property records
available on the Kane County, Illinois website indicate that Bulger has purchased several pieces
of property in Kane County. See Exhibit 3. Bulger is a representative of DEI. See Decl. at ¶ 9;
the DEI Website. Bulger travels frequently to Nevada to visit his father who is a resident of
Nevada. Decl. at ¶ 15. Additionally, Nevada counsel for Defendants accepted service of process
on behalf of Bulger. See Letter dated April 21, 2008, attached hereto as Exhibit 4.
Cox & Associates is a Nevada limited liability company organized under the laws of
Nevada. See Decl. at ¶ 6; Nevada Secretary of State printout attached hereto as Exhibit 5. Cox
& Associates was specifically recruited by DEI to provide marketing and sales services of DEI
equipment to the western United States, including Nevada. See Decl. at ¶ 8, 11-12. At the
request of DEI, Cox & Associates specifically marketed DEI equipment to the Nevada market
place. See Decl. at ¶ 12.
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RENSHAW & FERRARIO
Seventh Floor
Additionally, Independent public news sources have reported DEI's marketing and sales
activities in Nevada. Specifically, a publication entitled Rocky Mountain Construction has
published a web-based article dated October 10, 2005, reporting on DEI's affilliations with its
"Las Vegas-based representative, Cox & Associates," DEI's presence during the ConExpo trade
show held in Las Vegas, and DEI customers purchasing DEI equipment that was "put to work in
Nevada." See http://www.acppubs.corn/article/CA6266445.html, visited on May 28, 2008,
attached hereto as Exhibit 6.
DEI, Bruce Dillman, president of DEI ("Mr. Dillman"), Bulger and other DEI employees
have had numerous other business dealings and contacts with Nevada. See Decl. at ¶¶ 13-16.
Specifically, DEI's contacts with Nevada include, but are by no means limited to:
• Mr. Dillman and Bulger made numerous trips to Nevada for the purposes of
marketing DEI equipment. Decl. at ¶ 14(a).
• Bulger traveled to Nevada to make a sales call to Las Vegas Paving for the
purpose of marketing DEI equipment. Decl. at ¶ 14(b).
• Bulger traveled to Nevada to make a sales call to Frehner Construction for the
purpose of marketing DEI equipment. Bulger's trip to Frehner Construction resulted in the sale
of a self-erecting silo to Frehner Construction. Decl. at ¶ 14(c).
• Several DEI service employees traveled to Nevada for the purpose of servicing
DEI equipment installed in Northern Nevada. Decl. at ¶ 14(d).
• DEI service employees traveled frequently and regularly to Nevada for the
purpose of servicing DEI equipment in other areas of Nevada. Decl. at ¶ 14(e).
• Bulger traveled to Las Vegas, Nevada for the purpose of procuring the sale of
DEI equipment to Kilgore Paving and Maintenance ("Kilgore"). Robert Cox, manager of Cox &
Associates ("Cox") and Bulger traveled together to Utah to meet with Kilgore. Decl. at ¶ 14(f).
523868_1.DOC 15070.1 Page 4 of 12

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RENSHAW & FERRARIO
Seventh Flexor
• Bulger, Mr. Dillman and several other DEI employees regularly attend the
ConExpo trade shows held in Nevada for the express purpose of marketing and selling DEI
equipment to trade show attendees. Decl. at ¶ 14(g).
• On numerous occasions, DEI equipment has been sold to trade show attendees
during the ConExpo conventions. Decl. at ¶ 14(h).
• As an example, during the 2003 ConExpo held in Nevada, DEI sold equipment to
FNF Construction, Inc. ("FNF"), that was subsequently delivered in Mesquite, Nevada, and then
erected in Elko, Nevada. Decl. at ¶ 14(i).
• DEI employees traveled to Nevada to deliver servicing of the DEI equipment
purchased by FNF. Decl. at ¶ 140).
• Mr. Dillman traveled to Las Vegas, Nevada, and then Cox and Mr. Dillman
traveled together to Pahrump, Nevada for the purpose of making sales calls and marketing DEI
equipment. Decl. at ¶ 14(k).
• During the time period Cox & Associates was under agreement with DEI, Bulger,
other DEI employees and Cox & Associates exchanged numerous emails regarding the
marketing and sales of DEI equipment in the Exclusive Sales Territory, which included Nevada.
Decl. at ¶ 16.
III. LEGAL ARGUMENT
(2) Personal Jurisdiction Over Defendants is Proper.
In the face of the relevant facts and binding statutes, rules and case law directly on point
to the present case, Defendants make an unpersuasive and meritless argument that this Court
lacks personal jurisdiction over the defendants. However, personal jurisdiction over each and
every defendant in this action is proper.
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RENSHAW & FERRARIO
Seventh Floor
The Ninth Circuit has established a two-part test to determine whether the exercise of
personal jurisdiction over the defendant is proper in diversity cases. Greenspun v. Del E. Webb,
Corp., 634 F.2d 1204, 1207 (9 th Cir. 1980). "First, the state's long-arm statute must permit
jurisdiction. Second, the exercise of jurisdiction must be consistent with the demands of due
process." Greenspun, 634 F.2d at 1207. Because Nevada's long arm statute extends to the outer
limits of the Constitution, this Court need only look to the second part of the Ninth Circuit test.
NRS 14.065; Greenspun, 634 F.2d at 1207.
The second part of the Ninth Circuit's personal jurisdiction analysis requires a three-step
inquiry. Myers, 238 F.3d at 1071; Greenspun, 634 F.2d at 1207. "(1) The non-resident
defendant must do some act or consummate some transaction with the forum or perform some
act by which he purposefully avails himself of the privilege of conducting activities in the forum,
thereby invoking the benefits and protections of its laws. (2) The claim must be one which arises
(3) Exercise of jurisdiction mustout of or results from the defendant's forum-related activities.
be reasonable." Id.
a. Nevada can properly exercise personal jurisdiction over Timothy
Bulger.
As a preliminary matter, this Court has personal jurisdiction over Timothy Bulger
obtained through his Nevada attorneys. The federal court rules provide that service of process on
an individual is valid when service is made "pursuant to the law of the state in which.., service
is effected." Fed. R. Civ. P. 4(e)(1). Nevada statutes state that personal jurisdiction over an
individual "may be acquired anywhere within in the territorial limits of this state by service of
process in any manner prescribed by the Nevada Rules of Civil Procedure." NRS 125B.014.
Nevada court rules provide that service of process on an individual may be accomplished by
"delivering a copy of the summons and complaint to an agent authorized by appointment or by
law to receive service of process." Nev. R. Civ. P. 4(d)(6); see also Fed. R. Civ. P. 4(e)(2).
523868_1.DOC 15070.1 Page 6 of 12

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Seventh Floor
Thus, where an authorized agent of the defendant accepts service of process within the territorial
limits of Nevada, personal jurisdiction is proper in Nevada.
At Plaintiff's counsel's request, Bulger's Nevada attorneys accepted service of process of
the Summons and Complaint. See Exhibit 3. The actual authority of an agent may be given
expressly or implicitly. See Focus media, Inc. v. Pringle, 38 F.3d 1077 (9 th Cir. 2004) (quoting
Restatement 2d of Agency § 7 cmt. c). Here, Bulger's Nevada attorneys acknowledged they
represent Bulger in the present action and expressly accepted service of process on Bulger's
behalf. See Exhibit 4. Thus, Nevada courts have personal jurisdiction over Bulger in this action,
and this Court has personal jurisdiction over Bulger.
b. All defendants have had sufficient contacts such that Nevada can
properly exercise personal jurisdiction.
Next, Defendants have more than made the requisite contacts with the Nevada forum
such that haling them into court comports with traditional notions of fair play and substantial
justice. Personal jurisdiction over a nonresident defendant has been held proper where the
defendant's activities in and with the forum state are sufficient that the defendant should
reasonably anticipate being haled into court in the forum state. Mirage Casino-Hotel v. Caram,
726 F. Supp. 286, 288 (D. Nev. 1991). General personal jurisdiction is proper where the
defendant's activities in the forum are so continuous and systematic that he is deemed present in
the forum and can be haled into court for any action unrelated to his activities in the forum state.
Firouzabadi, 110 Nev. at 1352, 885 P.2d at 619. "Even where there are not 'continuous' and
'systematic' contacts that would establish general jurisdiction over a defendant '[e]ven a
single contact with or activity in the forum state may satisfy the constitutional test for minimum
contacts where the claim for relief arises therefrom.'" Id., see also Lewis v. Lewis, 695 F. Supp.
1089, 1091 (D. Nev. 1988). Additionally, this Court has recognized, "The Nevada Supreme
Court has held that when a defendant creates continuing obligations between himself and a
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Seventh Floor
Nevada resident, the defendant avails himself of the privilege of conducting business in the
forum." Mirage Casino-Hotel, 762 F. Supp. at 288.
Plaintiff is a Nevada company that is owed commissions by DEI for work performed
)rimarily out of Nevada to promote the sale of DEI equipment to DEI customers in several of the
•vestern United States, including Nevada. Plaintiff's allegations of breach of contract and fraud
•rose out of DEI and Bulger's extensive contacts with Plaintiff and the Nevada forum, including a
•ubstantial volume of emails directed to the Nevada forum. See Exhibit 1 at ¶ 11-16.
DEI and Bulger regularly travel to Nevada for business, sales and marketing activities,
including DEI's regular presence at the ConExpo trade show in Nevada. See Exhibit 1 at ¶¶ 11-
16. Additionally, DEI and Bulger have directed numerous emails to Nevada for the purposes of
advancing their business, sales and marketing activities in Nevada. /d. Thus Defendants have
systematically and continuously been present in Nevada, and have availed themselves of the
privileges and burdens of doing business in Nevada such that general personal jurisdiction over
them is proper. Mirage Casino-Hotel, 762 F. Supp. at 287-88; see also Greenspun, 634 F.2d at
1207; Firouzabadi, 110 Nev. at 1353-56, 885 P.2d at 619-621.
However, even if this Court disagrees that Defendants' presence in Nevada surpasses the
threshold test of being systematic and continuous to such a degree that Nevada courts can
constitutionally exercise general personal jurisdiction, Defendants' activities in the state
unquestionably confer specific jurisdiction. Defendants' forum related activities go directly to
the heart of the agreement between Plaintiff and Defendants, and to the tort claims that Plaintiff
is alleging. See Exhibit 1; Exhibit 5; Exhibit 6; Complaint. Thus, this Court can properly
exercise specific personal jurisdiction over Defendants. Mirage Casino-Hotel, 762 F. Supp. at
287-88; see also Greenspun, 634 F.2d at 1207; Lewis, 695 F. Supp. at 1091; Firouzabadi, 110
Nev. at 1353-56, 885 P.2d at 619-621; Davis v. Dist. Ct., 97 Nev. 332, 338, 629 P.2d 1209, 1213
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(1981) ("A state has power to exercise judicial jurisdiction over an individual who causes effects
in the state by an omission or act done elsewhere with respect to causes of action arising from
these effects" (quoting with approval Quattrone v. Superior Court for County of Los Angeles, 44
Cal. Rptr. 548, 552 (1975))).
(3) The Factors Weigh A•ainst Transferrin• This Case to Wisconsin.
This Court recently explained the three-step test Defendants must meet in order for this
•ourt to exercise its discretion to transfer this case to the Western District of Wisconsin: that (1)
venue must be proper in the Western District of Wisconsin, (2) the action could have been
brought there originally, and (3) the interests of justice will be promoted and the convenience of
the parties and witnesses would be served. See Lucarelli, 2008 WL182246 at *3.
Defendants erroneously base their argument for transfer on the misinformation that
Defendant Bulger is a resident of Wisconsin, arguing that the Wisconsin Court would have
•ersonal jurisdiction over all Defendants. Plaintiff could only have commenced this action in
•Visconsin if the court had both subject matter jurisdiction and personal jurisdiction. Lucarelli,
2008 WL182246 at *3. Because Bulger is a resident of Illinois, not Wisconsin, it is not clear that
Wisconsin would have personal jurisdiction over Bulger. Exhibit 1 at ¶ 7; Exhibit 2; Exhibit 3;
see also Lucarelli, 2008 WL182246 at *3. Defendants failed to provide any evidence that Bulger
would be subject to personal jurisdiction in Wisconsin. Thus, Defendants have not met their
burden to show that this case could have been brought in Wisconsin. Accordingly, Defendants
have failed to meet the second part of this Court's test for transfer of venue. Lucarelli, 2008
WL182246 at *3.
Additionally, Defendants make an implausible and meritless argument that transfer would
serve the convenience of the parties and witnesses, again based on erroneous information. The
factors evaluated by this Court in considering the convenience of the parties and the interests of
ustice include: "(1) the location where the alleged harm occurred, (2) the state that is most
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RENSHAW & FERRARIO
Seventh Floor
/as Vegas, Nevada 89169
familiar with the governing law, (3) the plaintiffs choice of forum, (4) the respective parties'
zontacts with the forum, (5) the contacts relating to the plaintiffs cause of action in the chosen
forum, (6) the differences in the costs of litigation in the two forums, (7) the availability of
zompulsory process to compel attendance of unwilling non-party witnesses, (8) the ease of access
:o the evidence, and (9) the relevant public policy of the forum state." Lucarelli, 2008
WL182246 at *4.
Plaintiff is a Nevada company that is owed commissions by DEI for work performed
primarily out of Nevada. See Exhibit 1 at ¶¶ 11-14; Complaint. Plaintiff chose Nevada as a
forum, and Nevada has an interest in protecting its citizens from harm caused by nonresidents.
Moreover, PlaintifFs allegations of breach of contract and fraud arose out of DEI and Bulger's
extensive contacts with Plaintiff and the Nevada forum, including a substantial volume of emails
:lirected to the Nevada forum. See Exhibit 1 at ¶ 13-16. Nevada has a substantial interest in
)rotecting its citizens from harm directed at Nevada. See Mirage Casino-Hotel, 762 F. Supp. at
•.88. Thus, transfer would not serve the interests of justice. Continental Grain Company v. The
FBL-585, 364 U.S. 19, 26 (1960) (stating that idea behind 28 U.S.C. § 1404(a) is that where
action requires witnesses that make one District Court more convenient than another, trial court
has discretion to transfer after making findings); Lucarelli, 2008 WL182246 at *3-4.
As discussed above, Bulger is not a resident of Wisconsin. See Exhibit 1-3. Thus,
Defendants' "presumption" that the persons most knowledgeable will all be found in Wisconsin is
not necessarily accurate. Moreover, this case centers around the commissions earned by Plaintiff,
a Nevada company, for the sale of DEI equipment to DEI customers in several of the western
United States; thus, contrary to Defendants' bare assertions, the overwhelming majority of
witnesses will most likely be found in Washington, Arizona, Utah and Nevada, where Plaintiff
had dealings with the customers whose purchase of DEI equipment resulted in commissions owed
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RENSHAW & FERRARIO
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Las Vegas, Nevada 89"169
:o Plaintiff by DEI. Requiring travel between Wisconsin and these witnesses would be far more
expensive than travel from Nevada.
Moreover, Mr. Dillman and Bulger regularly travel to Nevada for business, sales and
marketing activities, including DEI's regular presence at the ConExpo trade show in Nevada. See
Exhibit 1 at ¶¶ 11-16. It is thus disingenuous for Defendants to argue that travel to Nevada for
the purposes of this litigation would be somehow a burden or even inconvenient for them. See
Firouzabadi, 110 Nev. at 1353-56, 885 P.2d at 619-621. Thus, the factors this court evaluates
weigh heavily against transfer, and this Court should exercise its discretion and deny Defendants'
motion to transfer venue to the Western District of Wisconsin.
IV. CONCLUSION
Plaintiff has provided ample, competent evidence to establish that the exercise of personal
urisdiction over Defendants by this Court is proper. This Court must deny Defendants' Motion
:o Dismiss. Additionally, Defendants have failed to meet their burden of establishing that transfer
of venue to the Western District of Wisconsin is proper, and this Court should exercise its
discretion to deny Defendants' alternative Motion to Transfer Venue.
DATED this •/ day of May, 2008.
RENSHAW & FERRARIO
MARK E. FERRAINO, ESQ.
3800 Howard Hughes Parkway, 7 th Floor
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RENSHAW & FERRARIO
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CERTIFICATE OF MAILING
I, the undersigned, hereby certify that on the day of May 2008, electronically
filed the foregoing OPPOSITION TO DEFENDANTS' MOTION TO DIMSISS
PLAINTIFF'S COMPLAINT, OR, IN THE ALTERNATIVE, TRANSFER VENUE using
the court's CM/ECF system which will send email notification to the following counsel of
record:
Jordan J. Butler, Esq.
ALVERSON, TAYLOR
SANDERS
7401 W. Charleston Blvd.
Las Vegas, NV 89117
jbutler@alversontaylor.com
Fax: 385-7000
MORTENSEN &
An-employee of (/ •'•
Kummer Kaempfer Bonner Renshaw & Ferrario
523868_1.DOC 15070.1 Page 12 of 12

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