Free Motion to Dismiss Case/Lack of Jurisdiction - District Court of Arizona - Arizona

O SBORN MALEDON
A P ROF E SS IO NA L A S S OC IA T I O N A T T OR NEY S A T LA W

1 2
______________________

3
The Phoenix Plaza 21st Floor 2929 North Central Avenue Phoenix, Arizona 85012-2794 P.O. Box 36379 Phoenix, Arizona 85067-6379 Telephone Facsimile 602.640.9000 602.640.9050

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

Debra A. Hill, 012186 Ronda R. Fisk, 022100 OSBORN MALEDON, P.A. 2929 North Central Avenue, Suite 2100 Phoenix, Arizona 85012-2793 [email protected] [email protected] (602) 640-9000 Attorneys for Global Missions and El Shaddai Ministries

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ESTATE OF JOSEPH J. STUDNEK, by and through its PERSONAL REPRESENTATIVE, JOSEPH M. STUDNEK, Plaintiff/Counterdefendant v. AMBASSADOR OF GLOBAL MISSIONS UN LIMITED HIS SUCCESSORS, A CORPORATION SOLE, a Nevada corporation sole; EL SHADDAI MINISTRIES AND HIS SUCCESSORS, A CORPORATION SOLE, a Nevada Corporation; SECOND CHANCE CHRISTIAN EVANGELISTIC MINISTRIES, a California corporation; BISHOP OF FAITH VISION NOBLE HOUSE AND HIS SUCCESSORS, A CORPORATION SOLE, a California corporation; JOSEPH L. WILLIAMS and MONICA C. CISNEROS, as husband and wife; WILLIAM JOE LITTLE, MICHAEL CAMBRA and GLORIA CAMBRA, as husband and wife; JOEL DAVID and CINDY DAVID, as husband and wife; KEITH AARON VANN and TRISHA VANN, as husband and wife, Defendants/Counterclaimants. No. CIV-04-595-PHX-MHM DEFENDANT EL SHADDAI MINISTRIES' MOTION TO DISMISS SECOND AMENDED COMPLAINT (Oral Argument Requested)

28
Case 2:04-cv-00595-MHM Document 97 Filed 02/03/2006 Page 1 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Defendant El Shaddai Ministries and His Successors, a Corporation Sole ("El Shaddai Ministries") moves to dismiss the Second Amended Complaint pursuant to Federal Rules of Civil Procedure ("FRCP") 12(b)(2) and, in the alternative, FRCP 12(b)(6). This motion is supported by the attached memorandum of points and

authorities, the attached affidavits, and such oral argument as the Court permits. MEMORANDUM OF POINTS AND AUTHORITIES Over eighteen months after initiating these legal proceedings, Joseph M. Studnek, the personal representative of the Estate of Joseph J. Studnek ("Plaintiff"), filed a Second Amended Complaint ("Complaint"), naming numerous new defendants. (Dkt. 69.) Not content with suing the other party to the contract at issue -- Ambassador of Global Missions UnLimited and His Successors, a Corporation Sole ("Global Missions") -- Plaintiff now has named as Defendants those individuals or entities that appear to have interacted with Defendant Global Missions. Named

Defendants include, among others, Joseph L. Williams, the sole member of Global Missions; El Shaddai Ministries, the church that Mr. Williams regularly attends; Michael Cambra, the pastor of El Shaddai Ministries; Gloria Cambra, Pastor Cambra's wife; and Joel David, a notary public who witnessed an affidavit signed by Mr. Williams in this litigation. Plaintiff has made the absurd allegation that all named Defendants, including El Shaddai Ministries, perpetuated "fraud" upon the Plaintiff, (Dkt. 69 ¶ 17), when in fact most of them had nothing whatsoever to do with the events alleged in the Complaint. All claims against El Shaddai Ministries should be dismissed on two grounds: (1) the Court has no personal jurisdiction over El Shaddai Ministries and, alternatively, (2) Plaintiff has failed to state a claim against El Shaddai Ministries upon which relief can be granted.

Case 2:04-cv-00595-MHM

Document 97

-2-

Filed 02/03/2006

Page 2 of 14 1166924

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

STATEMENT OF FACTS AND PROCEDURAL HISTORY El Shaddai Ministries is a community church in San Lorenzo, California with approximately 100 active congregants, all of whom reside in California. (Cambra Aff.1 ¶¶ 1, 3.) Pastor Michael Cambra, the church's spiritual leader, incorporated El Shaddai Ministries as a corporation sole under the laws of Nevada. 2 (Id. ¶¶ 1, 2.) The church holds regular worship services every Wednesday and Sunday. (Id. ¶ 4.) In addition, El Shaddai Ministries serves the San Lorenzo community through various ministry programs for children, youth, homeless, convalescents, and prisoners. (Id. ¶ 5.) The church maintains a simple website (www.el-shaddaiministries.com), which lists the church's worship services and ministry programs; the website does not sell any products or offer any services outside of California. (Id. ¶ 6.) El Shaddai Ministries has had virtually no contacts with Arizona. The church does not maintain a registered agent for service of process in Arizona. (Id. ¶ 7.) It does not have (and never has had) an office, telephone, telex, telefax number, mailing address or bank account in Arizona, and does not own or lease real property in the state. (Id. ¶ 8.) None of the church's staff, board members, congregants, or

beneficiaries of its many ministerial programs reside in Arizona. (Id. ¶ 9.) El Shaddai Ministries has no employees in Arizona. (Id. ¶ 10.) Pastor Cambra, the incorporating

Affidavit of Michael J. Cambra in Support of Defendant El Shaddai Ministries' Motion to Dismiss Second Amended Complaint dated February 2, 2006, attached hereto as Exhibit A. A corporation sole is formed by an individual for the purpose of "acquiring, holding or disposing of church or religious society property, for the benefit of religion, for works of charity, and for public worship." Nev. Rev. Stat. ("N.R.S.") § 84.010 (2005). The Roman Catholic Diocese of Phoenix is an example of an Arizona corporation sole. See, e.g., Roman Catholic Diocese of Phoenix v. Superior Ct. ex rel. County of Maricopa, 204 Ariz. 225, 227, 62 P.3d 970, 972 (App. 2003). Upon filing articles of incorporation, the person subscribing the articles and his successor in office is deemed "a corporation sole, with continual perpetual succession." N.R.S. § 84.040 (2005).
Case 2:04-cv-00595-MHM Document 97
2

1

-3-

Filed 02/03/2006

Page 3 of 14 1166924

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

member of El Shaddai Ministries, has only traveled to Arizona on one occasion in 2005, long after the events at issue in this lawsuit. (Id. ¶ 11.) In addition to not having any contacts with Arizona, El Shaddai Ministries has not initiated any contacts with Plaintiff. The only contact Plaintiff has had with El Shaddai Ministries is when he visited the church looking for Mr. Williams. (Id. ¶ 12.) El Shaddai Ministries made no representations to Plaintiff regarding how to reduce the Estate's tax liability or tax credits that the Estate would receive for donations. (Id. ¶ 13.) And Plaintiff made no donation or promise of a donation to El Shaddai Ministries. (Id. ¶ 14.) Indeed, there is no mention of El Shaddai Ministries in the Faithful Steward Covenant between Plaintiff and Global Missions, which indicates that Plaintiff intended to donate all of the Estate's assets to Global Missions. See Faithful Steward Covenant, Exhibit B hereto. El Shaddai Ministries had no

knowledge of the Faithful Steward Covenant until after Plaintiff completed the donation of a building to Global Missions. (Cambra Aff. ¶ 15.) The one attenuated connection between El Shaddai Ministries and this litigation is that Joseph Williams, the sole member of Global Missions, is an active congregant at El Shaddai Ministries. (Id. ¶ 16.) Mr. Williams regularly participates in worship services and ministry programs at El Shaddai Ministries, plays guitar in the church band, and supports the church through monetary tithes. (Id. ¶ 17.)

Nevertheless, he has no control over the church's ultimate decision making: He is not a church staff member, does not hold a leadership position, and is not a voting member of the board of trustees, the church's governing body. (Id. ¶ 18.) Additionally, Mr. Williams' corporation sole, Global Missions, has no control over El Shaddai Ministries. El Shaddai Ministries and Global Missions do not have any common staff, officers, or directors and they do not share the same physical facility. (Id. ¶ 19.) Global Missions has not made any donations to El Shaddai Ministries and is not otherwise affiliated with the church. (Id. ¶ 20.)

Case 2:04-cv-00595-MHM

Document 97

-4-

Filed 02/03/2006

Page 4 of 14 1166924

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I.

The fact that Plaintiff did not name El Shaddai Ministries when he filed his original complaint and his first amended complaint (Dkt. 21) is indicative of El Shaddai Ministries' complete lack of involvement in the events alleged in the Complaint. Indeed, Plaintiff only amended his complaint to include El Shaddai

Ministries and Pastor Cambra and his wife after Pastor Cambra filed an affidavit in support of Mr. Williams' motion to dismiss for improper service of process. See Affidavit of Michael Cambra dated May 8, 2005, Exhibit C hereto.3 ARGUMENT EL SHADDAI MINISTRIES IS NOT SUBJECT TO PERSONAL JURISDICTION IN ARIZONA. The assertion of personal jurisdiction over a defendant that has been served with process outside the forum comports with the requirements of due process only if the defendant had such minimum contacts with the forum that the assertion of jurisdiction does not violate "`traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (citation omitted). Consistent with the mandates of constitutional due process, this Court cannot exercise jurisdiction over El Shaddai Ministries, as it has no contacts with Arizona.
A.

Legal Standard.

As the party seeking to invoke jurisdiction, "the plaintiff bears the burden of demonstrating that jurisdiction is appropriate." Schwarzenegger v. Fred Martin

Motor Co., 374 F.3d 797, 800 (9th Cir. 2004) (citation omitted). When a defendant El Shaddai Ministries and the Cambras are not the only Defendants that Plaintiff has identified solely on the basis of affidavits used in this litigation. Plaintiff has also named Joel David, a California notary public. Mr. David notarized one of Mr. Williams' affidavits and subsequently signed his own affidavit indicating that if Plaintiff had contacted him, he would have responded to Plaintiff's request for information in his notary journal as long as it did not require him to violate the Notary Public Code of Professional Responsibility and the request complied with the requirements of California law. See Affidavit of Joseph L. Williams dated September 14, 2004, Exhibit D hereto, and Affidavit of Joel David dated February 28, 2005, Exhibit E hereto.
Case 2:04-cv-00595-MHM Document 97
3

-5-

Filed 02/03/2006

Page 5 of 14 1166924

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

moves to dismiss under FRCP 12(b)(2), "the plaintiff is `obligated to come forward with facts, by affidavit or otherwise, supporting personal jurisdiction.'" Scott v.

Breeland, 792 F.2d 925, 927 (9th Cir. 1986), quoting Amba Marketing Systems, Inc. v. Jobar International, Inc., 551 F.2d 784, 787 (9th Cir. 1977). Where there is no applicable federal statute governing personal jurisdiction, a federal court applies the personal jurisdiction rules of the forum state. Schwarzenegger, 374 F.3d at 800. Arizona R. Civ. P. 4.2(a) permits jurisdiction over non-resident defendants "to the maximum extent permitted . . . by the Constitution of the United States." Ariz. R. Civ. P. 4.2(a). Because Arizona's long-arm rule reaches to the limits of due process, the long-arm and due process analyses collapse, and the Court can proceed directly to consider whether a defendant has constitutionallysufficient contacts with Arizona. Batton v. Tennessee Farmers Mut. Ins. Co., 153 Ariz. 268, 271, 736 P.2d 2, 4 (1987); Armstrong v. Aramco Servs. Co., 155 Ariz. 345, 348, 746 P.2d 917, 920 (App. 1987). Whether an Arizona court can assume personal jurisdiction over a foreign corporation without violating due process is determined according to the "minimum contacts" analysis familiar to federal law, as discussed below. B. El Shaddai Ministries Does Not Have the Requisite Minimum Contacts With Arizona.

The minimum contacts analysis requires a court to determine whether the nonresident defendant has "purposefully avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protection of its laws." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (citation omitted). This test requires, before jurisdiction can be exercised, the plaintiff to show that the nonresident defendant took some action or engaged in some conduct that was purposefully directed at the forum state. See id. at 472-76.4 The purposeful availment standard requires more than foreseeability of causing injury in another state. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985). Rather, "the foreseeability that is critical to due process analysis . . . is
Case 2:04-cv-00595-MHM Document 97
4

-6-

Filed 02/03/2006

Page 6 of 14 1166924

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

The minimum contacts analysis has been refined into two different bases for personal jurisdiction: general jurisdiction and specific jurisdiction. A court may

exercise general jurisdiction over a nonresident defendant only if that party's purposeful contacts with the forum state are "continuous and systematic." Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414-16 (1984); see also Batton 153, Ariz. at 270, 736 P.2d at 4 (general jurisdiction over a nonresident exists only when defendant's contacts are so substantial or "continuous and systematic" that defendant could reasonably foresee being haled into court even when the cause of action does not arise out of or relate to defendant's activities in the forum state). In the case of specific jurisdiction, the plaintiff is not required to show continuous, substantial activities by the nonresident defendant in the forum state. Instead, a showing of somewhat more limited contacts with the forum will suffice, but the plaintiff's cause of action must arise out of those specific contacts in order to meet the minimum contacts requirement. See Helicopteros, 466 U.S. at 414. In addition, those specific contacts by the defendant must have resulted from the defendant's purposeful conduct and not the unilateral activity of the plaintiff or others. See id. at 417. Plaintiff cannot aggregate factual allegations concerning multiple defendants to establish personal jurisdiction over any single defendant. In fact, the United States Supreme Court has held that it is unconstitutional to consider the defending parties together and to aggregate their forum contacts in determining whether jurisdiction exists. Instead, minimum contacts must be met as to each individual defendant over whom a state court exercises jurisdiction. See Rush v. Savchuk, 444 U.S. 320, 331-2 that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). The purposeful availment requirement prevents defendants from being haled into a jurisdiction through random, fortuitous, or attenuated contacts. See Burger King, 471 U.S. at 475.
Case 2:04-cv-00595-MHM Document 97

-7-

Filed 02/03/2006

Page 7 of 14 1166924

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

(1980); see also Calder v. Jones, 465 U.S. 783, 790 (1984) ("Each defendant's contacts with the forum State must be assessed individually."); Williams v. Lakeview, Co., 199 Ariz. 1, 3, 13 P.3d 280, 282 (2000) (specific jurisdiction "does not arise from the plaintiff's or a third party's unilateral activity" in the forum state). Given that El Shaddai Ministries has had virtually no contacts with Arizona, this state has neither general nor specific jurisdiction over the church in this case. 1. El Shaddai Ministries Is Not Subject to General Jurisdiction in Arizona.

An Arizona Court may exercise general jurisdiction over a nonresident defendant only when the defendant's contacts with Arizona are so substantial or "continuous and systematic" that the defendant could reasonably foresee being haled into court "[e]ven when the cause of action does not arise out of or relate to the [defendant's] activities in the forum State." Batton, 153 Ariz. at 270, 736 P.2d at 4 (citation omitted). Courts apply an "exacting standard" in determining whether a party's contacts "constitute sufficient `presence' to warrant general jurisdiction." Schwarzenegger, 374 F.3d at 801. Essentially, for general jurisdiction to exist over a defendant, its contacts with Arizona must be so wide-ranging that they take the place of physical presence in the forum as a basis for jurisdiction. See Bancroft & Masters, Inc. v. Augusta Nat'l Inc., 223 F.3d 1082, 1086 (9th Cir. 2000). As described above, El Shaddai Ministries is a Nevada corporation sole, operating solely in California. El Shaddai Ministries is not licensed to do business in Arizona and does not maintain a registered agent for service of process in Arizona. (Cambra Aff. ¶ 7.) El Shaddai Ministries does not own or lease real property in Arizona. (Id. ¶ 8.) El Shaddai Ministries does not maintain an office, telephone, telex or telefax number, mailing address or bank account in Arizona. (Id. ¶ 8.) El Shaddai Ministries has no employees in Arizona. (Id. ¶ 10.) In other words, El Shaddai Ministries has had none of the contacts that "approximate[] physical presence within

Case 2:04-cv-00595-MHM

Document 97

-8-

Filed 02/03/2006

Page 8 of 14 1166924

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

the state's borders." Bancroft & Masters, Inc., 223 F.3d at 1086. Accordingly, El Shaddai Ministries is not subject to the general jurisdiction of the Arizona courts. 2. El Shaddai Ministries Is Also Not Subject to Specific Jurisdiction in Arizona.

The Ninth Circuit applies a three-part test to determine whether specific jurisdiction exists: (1) The nonresident 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 of its laws. (2) The claim must be one which arises out of or results from the defendant's forum-related activities. (3) Exercise of jurisdiction must be reasonable. Data Disc, Inc. v. Systems Tech. Assocs., 557 F.2d 1280, 1287 (9th Cir. 1977). This test requires "an evaluation of the nature and quality of the defendant's contacts in relation to the cause of action." Id. Plaintiff's claim fails each prong of this test. a. El Shaddai Ministries Did Not Purposefully Avail Itself of the Privilege of Conducting Activities in Arizona.

With respect to the first prong, El Shaddai Ministries has not "purposefully availed" itself of the privilege of conducting any activities in Arizona. In the Ninth Circuit, the "purposeful availment" element of the test for specific jurisdiction is satisfied only if the defendant "(1) committed an intentional act, which was (2) expressly aimed at the forum state, and (3) caused harm, the brunt of which is suffered and which the defendant knows is likely to be suffered in the forum state." Bancroft & Masters, 223 F.3d at 1087. The Complaint fails to allege that El Shaddai Ministries committed any intentional acts expressly aimed at Arizona. Indeed, El Shaddai Ministries has had no contacts whatsoever with Arizona and has taken no purposeful action directed at Arizona. (Cambra Aff. ¶¶ 7-10.)

Case 2:04-cv-00595-MHM

Document 97

-9-

Filed 02/03/2006

Page 9 of 14 1166924

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

b.

Plaintiff Does Not Allege That El Shaddai Ministries Engaged in Arizona-Related Contacts.

Moreover, Plaintiff does not allege that his claims arise out of any forumrelated activities on the part El Shaddai Ministries. Plaintiff alleges only that "the Defendant corporations and individual Defendants are an alter ego of each other and that they are therefore individually and collectively liable for the acts of the other." (Dkt. 69 ¶ 18.) Plaintiff's conclusory assertion of an alter ego theory is insufficient to establish personal jurisdiction over El Shaddai Ministries. See, e.g., Hockey v.

Medhekar, 30 F.Supp.2d 1209, 1211 n.1 (N.D.Cal.1998) (at the pleading stage, conclusory allegations that a corporate entity is the alter ego of the defendant are insufficient to survive a motion to dismiss); Hokama v. E.F. Hutton & Co., 566 F.Supp. 636, 647 (C.D.Cal.1983) (same). To establish general jurisdiction over a foreign defendant through an alter ego theory, the plaintiff must make a prima facie case consisting of two elements: "(1) that there is such unity of interest and ownership that the separate personalities of the corporation and the individuals no longer exist and (2) that failure to disregard the corporation would result in fraud or injustice." Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1393 (9th Cir. 1984); see also Gatecliff v. Great Republic Life Ins. Co., 170 Ariz. 34, 37, 821 P.2d 725, 728 (1991) (alter ego requires proof of unity of control and that observance of the corporate form would sanction a fraud or promote injustice). Plaintiff failed to make this prima facie showing in his Complaint. First, Plaintiff does not allege facts showing any unity of interest and ownership between El Shaddai Ministries and the other named Defendants, let alone a unity of interest and ownership that would indicate that El Shaddai Ministries and the other Defendants do not have "separate personalities." Examples of factors that bear on the "unity of interest" analysis include whether the officers and directors of the companies are the same; whether separate books, bank accounts, tax returns, financial statements and the like are kept; and whether one company holds the other company
Case 2:04-cv-00595-MHM Document 97

- 10 -

Filed 02/03/2006

Page 10 of 14 1166924

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

out as the agent, either expressly or impliedly, as by representing it is doing business or has a office in the forum state. None of these factors are alleged in the Complaint. Moreover, Plaintiff has also failed to explain how recognizing the separate identities of the named Defendants--both corporations and individuals--would result in either fraud or injustice. Indeed, disregarding El Shaddai Ministries' absolute lack of contacts with Arizona and the events that allegedly occurred in this case would result in injustice. c. The Exercise of Personal Jurisdiction Over El Shaddai Ministries Would Be Unreasonable.

Even if the Plaintiff could establish a sufficient nexus between El Shaddai Ministries and Arizona to satisfy the minimum contacts analysis, the Court should still decline to exercise personal jurisdiction because it would be unreasonable under the circumstances in this case. See Amoco Egypt Oil Co. v. Leonis Navigation Co., 1 F.3d 848, 851 (9th Cir. 1993). In determining "reasonableness," the Court should examine the following: (a) the extent of El Shaddai Ministries' interjection into Arizona; (b) the burden on El Shaddai Ministries of defending the suit in Arizona; (c) the extent of any conflict with the sovereignty of El Shaddai Ministries' residence; (d) Arizona's interest in the dispute; (e) the most efficient forum for the resolution of the dispute; (f) the importance of the chosen forum to the Plaintiff's interest in convenient and effective relief; and (g) the existence of an alternative forum. Id. at 851. None of these factors weighs in favor of the exercise of personal jurisdiction over El Shaddai Ministries in this matter. Here, the burden on a small community church based out of California in defending an action arising from unrelated conduct in an Arizona court is apparent. Arizona's interest in adjudicating the dispute vis-à-vis El Shaddai Ministries is minimal, given that El Shaddai Ministries has had no contacts with Arizona. Similarly, Plaintiff has no interest in obtaining convenient and effective relief as to El Shaddai Ministries in Arizona given El Shaddai Ministries' lack of contacts with
Case 2:04-cv-00595-MHM Document 97

- 11 -

Filed 02/03/2006

Page 11 of 14 1166924

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Arizona.

If Plaintiff wishes to bring an action against El Shaddai Ministries in

California, it can do so. The interests of the "interstate judicial system" will also not be served by requiring out-of-state defendants to defend this lawsuit in a jurisdiction where they have no contacts with the forum states. Finally, on substantive liability issues, many, if not all, key witnesses and evidence can be expected to be found outside Arizona, and most likely in California. Under these circumstances, it would be unreasonable and unfair, as well as inefficient, to maintain this action against El Shaddai Ministries in Arizona. Plaintiff's complaint against El Shaddai Ministries should be dismissed for lack of personal jurisdiction. II. PLAINTIFF'S CLAIM AGAINST EL SHADDAI MINISTRIES MUST BE DISMISSED BECAUSE PLAINTIFF FAIL TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED. Not only has Plaintiff brought a claim against El Shaddai Ministries in a forum that lacks personal jurisdiction over the church, Plaintiff has also failed to state a claim against El Shaddai Ministries for which relief can be granted. None of the claims alleged in the Complaint are properly asserted against El Shaddai Ministries. El Shaddai Ministries was not involved in any way with any of the claims listed With respect to Count I, El Shaddai Ministries played no part in the negotiation or execution of the Faithful Steward Covenant, the contract at issue in this case. (Cambra Aff. ¶ 15.) As for Count II (Fraud), El Shaddai Ministries did not a make a single representation to Plaintiff, let alone a representation that was knowingly false. (Id. ¶ 13.) Similarly, regarding Count III (Unjust Enrichment), Plaintiff never

bestowed any benefit upon El Shaddai Ministries and therefore the church has not been unjustly enriched. (Id. ¶ 14.) Nor did Plaintiff convey any gifts upon El Shaddai Ministries (Counts V, VI, and VII). (Id.) Finally, in Count VIII, Plaintiff alleges that Defendants wrongfully took property and or proceeds from the sale from the property and requests that the court issue a writ of replevin to recover the property. (Dkt. 69 ¶¶
Case 2:04-cv-00595-MHM Document 97

- 12 -

Filed 02/03/2006

Page 12 of 14 1166924

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

48-49.) But replevin applies only to personal property, not real property or proceeds from a sale of real property. See, e.g., Black's Law Dictionary 1325 (2004) (defining "replevin" as "a writ obtained from a court authorizing the retaking of personal property wrongfully taken or detained" and noting that "[t]o support the action it is necessary: (a) That the property shall be personal") (emphasis added); 66 Am. Jur. 2d Replevin § 9 (2001) ("Money is not subject to replevin unless it is marked or designated in some manner so as to become specific, as it regards the power of identification, such as being in a bag or package to be replevined."). In sum, all counts should be dismissed against El Shaddai Ministries because Plaintiff has failed to state a single claim upon which relief can be granted. CONCLUSION For the foregoing reasons, El Shaddai Ministries respectfully requests that the Court grant its motion to dismiss the Complaint for lack of personal jurisdiction. In the alternative, El Shaddai Ministries respectfully requests that the Court grant its motion to dismiss the Complaint for failure to state a claim upon which relief may be granted. El Shaddai Ministries further requests that the court award its costs and attorneys' fees pursuant to A.R.S. §§ 12-341 and -341.01. See Apollo Group, Inc. v. Avnet, Inc., 58 F.3d 477 (9th Cir. 1995) (in diversity action, court has discretion to award fees under A.R.S. § 13-341.01(A)); Berthot v. Security Pac. Bank of Ariz., 170 Ariz. 318, 823 P.2d 1326 (App. 1991) (affirming trial court's award of fees under statute where defendant established the absence of a contractual relationship). El Shaddai Ministries also seeks an award of attorneys fees and costs from Plaintiff pursuant to A.R.S. § 12-349. See Harris v. Reserve Life Ins. Co., 158 Ariz. 380, 762 P.2d 1334 (App. 1988) (sanctions upheld against an attorney where the facts available to the attorney were such that he knew or should have known that the claim was unjustified).

Case 2:04-cv-00595-MHM

Document 97

- 13 -

Filed 02/03/2006

Page 13 of 14 1166924

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DATED this 3rd day of February, 2006. OSBORN MALEDON, P.A.

By s/Ronda R. Fisk Debra A. Hill Ronda R. Fisk 2929 North Central, Suite 2100 Phoenix, Arizona 85012-2793 Attorneys for Global Missions and El Shaddai Ministries CERTIFICATE OF SERVICE I hereby certify that on February 3, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: · Jeremy Scott Geigle, [email protected] · Bradley D. Weech, [email protected] I hereby certify that on February 3, 2006, I served the attached document by first-class mail on the Honorable Mary H. Murguia, United States District Court, Sandra Day O'Connor U.S. Courthouse, Suite 525, 401 West Washington Street, SPC 53, Phoenix, Arizona 85003-2154.

I hereby certify that on February 3, 2006, I served the attached document by first-class mail on the following, who are not registered participants of the CM/ECF System: Joseph L. Williams 15934 Hesperian Blvd. P.M.B. 311 San Lorenzo, CA 94580

s/ Lindsay B. Jensen
Case 2:04-cv-00595-MHM Document 97

- 14 -

Filed 02/03/2006

Page 14 of 14 1166924