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Briseno v. Marketing and Management Solutions, LLC

United States District Court, D. Kansas

June 27, 2019



          Carlos Murguia United States District Judge.

         Defendant Banamex, S.A. moves to dismiss Counts II, IV, V, VI, VII, and VIII of the complaint by plaintiffs Eloy Velasco Briseno and Jana Harris Velasco, solely with respect to defendant, for three reasons: lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2), insufficient process under Rule 12(b)(4), and insufficient service of process under Rule 12(b)(5). (Doc. 12.)

         I. Factual Background

         Plaintiffs are United States citizens residing in Johnson County, Kansas. Defendant Banamex, S.A.[1] is referenced in paragraph 17 of the complaint as “a Mexican company that can be found at 2029 Century Park E #42, Los Angeles, California 90067.” (Doc. 1, at 6.) Defendant Banamex, S.A. is named as one of sixteen defendants to the above-captioned case.

         This is a case about a timeshare scam involving multiple persons and business entities in Mexico and the United States, multiple wire transfers by plaintiffs, and plaintiffs' efforts to recover their money. Nine other named defendants are relevant to identify and distinguish each of the wire transfers in this case from the facts involving defendant Banamex, S.A. and the alleged conspiracy. These nine defendants, as named in the complaint and later referenced by plaintiffs, are: Mario Morales Ortiz Pena (“Mario”), Banco Mercantil del Norte, S.A. (“Banco Norte”), Banorte USA Corporation (“Banorte USA”), Banorte, Prhometeus Consulting Group (“PRHometeus”), VHM and Company (“VHM”), Gaberi Consultores S.C. (“Gaberi”), BBVA Bancomer, S.A. (“BBVA”), and El Banco Nacional de Mexico (“Banco Nacional”).

         On or about June 2018, persons purporting to act for Marketing and Management Solutions, LLC (“M&M”) contacted plaintiffs about potential sale of their timeshare in Mexico. This party represented to plaintiffs that the buyer was defendant Mario. Plaintiffs entered into an agreement (the “Agreement”) allegedly with M&M and defendant Mario for the sale of their timeshare for $230, 250.00. Between June and August 2018, persons claiming to be M&M and other entities requested plaintiffs pay various fees, taxes, insurance, costs, and miscellaneous charges to complete the sale of plaintiffs' timeshare. Plaintiffs paid these purported expenses across five different wire transfers totaling $101, 547.00:

1. On June 15, 2018, $5, 325.00 to Banco Norte and/or Banorte USA and/or Banorte with beneficiary defendant PRHometeus.
2. On June 22, 2018, $29, 932.50 to Banco Norte and/or Banorte USA and/or Banorte with beneficiary defendant PRHometeus.
3. On July 2, 2018, $4, 325.00 to defendant Banco Nacional and/or defendant Banamex, S.A. with beneficiary defendant VHM.
4. On July 19, 2018, $53, 966.50 to defendant BBVA, with beneficiary defendant Gaberi.
5. On July 23, 2018, $7, 998.00; to defendant BBVA, with beneficiary defendant Gaberi.

         To date, no defendant has purchased plaintiffs' timeshare, and no defendant has returned plaintiffs' money. Only the third wire transfer involves defendant Banamex, S.A. All other involvement by defendant is found in plaintiffs' conspiracy allegations and recitation of other Counts.

         II. Legal Standards

         In evaluating challenges to personal jurisdiction, the court assumes true all well-pleaded (plausible, non-conclusory, and non-speculative) facts alleged in plaintiff's complaint. Dudnikov v. Chalk & Vermillion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008) (citation omitted). Factual disputes in parties' affidavits are resolved in plaintiffs' favor. Id. (citing FDIC v. Oaklawn Apartments, 959 F.2d 170, 174 (10th Cir. 1992)). When personal jurisdiction is based on a conspiracy theory, “the plaintiff must offer more than bare allegations that a conspiracy existed, and must allege facts that would support a prima facie showing of a conspiracy.” Melea, Ltd. v. Jawer SA, 511 F.3d 1060, 1069 (10th Cir. 2007); see Stoldt v. City of Toronto, 678 P.2d 153, 156 (Kan. 1984) (listing the elements of civil conspiracy in Kansas).

         To the extent that the court considers any exhibits or other records outside the pleadings, Federal Rule of Civil Procedure 12(d) only converts to summary judgment those motions made pursuant to Rule 12(b)(6). The Tenth Circuit has applied Rule 12(d) in limited circumstances to motions under Rule 12(b)(1) when the jurisdictional question is intertwined with the merits of the case. Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir. 1987). The defenses of Rule 12(b)(2), 12(b)(4), and 12(b)(5) are generally not proper grounds for summary judgment. 5C Charles Alan Wright et al., Fed. Prac & Proc. Civ. § 1366 (3d ed., Apr. 2019 update); see also Nichols v. United States 796 F.2d 361, 366 (10th Cir. 1986) (stating in the 12(b)(1) context that “Rule 12(b) does not authorize conversion whenever matters outside the pleadings are accepted by the court.”).

         A. 12(b)(4) and 12(b)(5)

         A Rule 12(b)(4) motion constitutes “an objection to the form of process or the content of the summons, ” while a motion made under Rule 12(b)(5) “challenges the mode or lack of delivery of a summons and complaint.” Oltremari by McDaniel v. Kan. Soc. & Rehab. Serv., 871 F.Supp. 1331, 1349 (D. Kan. 1994) (citations omitted). When the defendant is allegedly misnamed in the summons or does not exist, a motion to dismiss may be properly made under either Rule 12(b)(4) or Rule 12(b)(5).[2]

         A plaintiff must validly serve the defendant with process before the court can exercise personal jurisdiction over that defendant. See Jenkins v. City of Topeka, 136 F.3d 1274, 1275 (10th Cir. 1998) (“Effectuation of service is a precondition to suit . . . .”). When a defendant challenges service of process, the plaintiff has the burden of proving the sufficiency of service. Ammon v. Kaplow, 468 F.Supp. 1304, 1309 (D. Kan. 1979). A signed return of service is prima facie evidence of valid service, but can be overcome by strong and convincing evidence that the service or return was inaccurate. Oltremari, 871 F.Supp. at 1349 (adopting Report and Recommendation of Rushfelt, Mag. J.). The court may consider documentary evidence and weigh affidavits when evaluating the sufficiency of the plaintiff's service on the defendant. Ammon, 468 F.Supp. at 1309.

         Under Federal Rule of Civil Procedure 4(h)(1), a domestic or foreign corporation must be served “in a judicial district of the United States” either (1) pursuant to state law in the jurisdiction where the action is brought or service is made; or (2) by delivering a copy of the summons and complaint to an agent authorized to accept service of process. Kansas allows service by return receipt delivery through certified mail. Kan. Stat. Ann. § 60-303 (2010). “Generally, when the Court finds that service is insufficient but curable, it should quash service and give plaintiff an opportunity to reserve defendant.” Fisher v. Lynch, 531 F.Supp.2d 1253, 1269 (D. Kan. 2008). However, where it appears unlikely that service can be cured, the court has broad discretion to dismiss the action. See Pell v. Azar Nut Co., 711 F.2d 949, 950 n.2 (10th Cir. 1983).

         B. ...

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