MERCINTH PEARCE (Pro Hac Vice) BRYAN RABBINO LLP · MERCINTH PEARCE (Pro Hac Vice) ... CASE NO.: 16-cv-05810-SVW (MRW) JUDGE: Hon. Stephen V. Wilson ... FedEx Ground Package Sy stems,

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MERCINTH PEARCE (Pro Hac Vice)mp earce bryantrabbino.comBRYAN RABBINO LLP1180 Avenue of the Americas, Suite 620New York, New York 10036Tel: (212) 967-1800Fax: (212) 967-1811

KICK D. NAVARRETTE (CA Bar No. 122653)rnavarrette AlvaradoSmith.comALVARADO MITHA Professional Corporation633 W. Fifth Street, Suite 1100Los Angeles, CA 90071Tel: (2I3) 229-2400Fax: (213) 229-2499

Attorneys for Third Party DefendantROHAN MARLEY

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA —WESTERN DIVISION

FIFTY-SIX HOPE ROAD MUSICLIMITED, a Bahamian Corporation, AndHOPE ROAD MERCHANDISING, LLC,a Florida limited liability company,

CASE NO.: 16-cv-05810-SVW(MRW)

JUDGE: Hon. Stephen V. Wilson

Plaintiffs,

JAMMIN JAVA, CORPORATION, aNevada corporation, and DOES 1-10,

Defendants.

JAMMIN JAVA CORPORATION, aNevada Corporation,

Counterclaim Plaintiff,

vs.

FIFTY-SIX-SIX HOPE ROAD MUSICLIMITED, a Bahamian Corporation, AndHOPE ROAD MERCHANDISING, LLC,a Florida limited liability company,

Counterclaim Defendants.

COUNTERCLAIM DEFENDANTROHAN MARLEY' S NOTICE OFMOTION AND MOTION TODISMISS JAMMIN JAVACORPORATION'S AMENDEDCOUNTERCLAIM•MEMORANDUM ~F POINTS ANDAUTHORITIES IN SUPPORTTHEREOF

[FRCP 12(B)(1), 12(B)(2), 12(B)(6),14 AND FRCP 21

Date: December 12, 2016Time: 1:30~p~ m.Place: 312 N. Spring Street

Los Angeles, CA 90012Courtroom 6

1DEFENDANT'S NOTICE OF MOTION AND MOTION TO DISMISS

C C C7t~7tZ1~ m II Ili ~ 1

Case 2:16-cv-05810-SVW-MRW Document 65 Filed 11/10/16 Page 1 of 17 Page ID #:887

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~ JAMMIN JAVA CORPORATION,

Counterclaim Plaintiff,

VS.

~ ROHAN MARLEY, an Individual,

Third Party Defendant.

TO COUNTERCLAIM PLAINTIFF JAMMIN JAVA CORPORATION AND

ITS ATTORNEYS OF RECORD:

NOTICE IS GIVEN that on December 12, 2016 at 1:30 p.m. in Courtroom "6"

of the above-entitled Court located at 312 North Spring Street, Los Angeles,

California 90012, Counterclaim Defendant Rohan Marley will move the Court to

dismiss with prejudice Jammin Java Corporation's ("JJC") Amended Counterclaim ,

without leave to amend, pursuant to Federal Rules of Civil Procedure ("FRCP")

12(b)(1), 12(b)(2), 12(b)(6), 14 and FRCP 21; to stay discovery relating to the

Amended Counterclaim, and for such other and further relief as the Court deems just

and proper.

This Motion to Dismiss (the "Motion"), which seeks dismissal of the Amended

Counterclaim, is based on the following grounds:

1. Counterclaim Plaintiff has filed the Amended Third Party Complaint in

violation of FRCP 14(a)(1).

2. Counterclaim Plaintiff fails to state facts sufficient to constitute a claim

for relief pursuant to FRCP 12(b)(6).

3. Counterclaim Plaintiff fails to sufficiently allege facts to show subject

matter jurisdiction. (FRCP 12(b)(1))

4. Counterclaim Plaintiff fails to sufficiently allege facts showing personal

jurisdiction. (FRCP 12(b)(2))

5. This Court should reject Counterclaim Plaintiff's frivolous claims and

order that Mr. Marley be dropped as a party to this action.


4463530.1 -- L751.1


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As a result of the foregoing, Counterclaim Plaintiff's claims are frivolous,

vexatious and designed to harass Counterclaim Defendant Rohan Marley.

This Motion is made following the conference of counsel pursuant to L.R. 7-3

which took place on October 6, 2016. Upon the conclusion of the meet and confer

conference, counsel for Counterclaim Plaintiff (formerly known as Third Party

Plaintiff advised that the Amended Third Party Complaint would not be voluntarily

dismissed. Subsequently, Counterclaim Defendant (formerly known as Third Party

Defendant) timely filed a Motion to Dismiss the Amended Third Party Complaint

(Document #51). On October 27, 2016, Counterclaim Plaintiff's Motion for

Enlargement of Time to File a Response (Document #55) to Third Party Defendant's

Motion to Dismiss was rejected by the Court as untimely, among other deficiencies

(Document #56). On October 27, 2016, Counterclaim Plaintiff, without leave of

Court, intentionally and erroneously filed an Amended Counterclaim against Rohan

Marley (Document #58).

The Motion will be based on this Notice of Hearing, the Memorandum of

Points and Authorities, all documents, records, and pleadings on file, and any

evidence and/or oral argument presented at the time of hearing on this matter.

DATED: November 10, 2016 BRYANT RABBINOA Limited Liability Partnership

By: /s/Mercinth C. PearceMERCINTH C. PEARCE(PRO HAC VICE)

By: /s/Rick D. NavarretteRICK D. NAVARRETTEALVARADOSMITHA Professional Corporation



4463530.1 -- L751.1


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TABLE OF CONTENTS

MEMORANI~tJM OF POINTS AND AUTHORITIES ........................................... 1

I. SUMMARY OF ARGLJMENT ....................................................................... 1

I I. SUMMARY OF ALLEGATIONS ..................................................................3

I II. STANDARD FOR A MOTION TO DISMISS ..............................................3

I V. THE AMENDED CC VIOLATES FRCP 14 ..................................................4

V. THE AMENDED CC FAILS TO STATE A CLAIM UPON WHICHRELIEF CAN BE GRANTED ........................................................................ 5

A. The Amended Third Party Complaint is Facially Deficient .................5

B. JJC Has Not Pled Sufficient Allegations To State A Claim ofBreach of Fiduciary Duty Under Applicable Nevada Law ...................6

VI. THE AMENDED CC MUST BE DISMISSED FOR LACK OFSUBJECT MATTER AND PERSONAL JURISDICTION ANDINSUFFICIENT SERVICE OF PROCESS ....................................................9

A. The Court Lacks Subject Matter and Personal Jurisdiction OverMr. Marley .............................................................................................9

1. Lack of Subject Matter Jurisdiction ............................................9

2. Lack of Personal Jurisdiction ......................................................9

VII. THE COURT SHOULD STAY UISCOVI:IZY REGARDING THEAMENDEDCC .............................................................................................10

VIII. CONCLUSION ..............................................................................................11

iDEFENDANT'S NOTICE OF MOTION AND MOTION TO DISMISS

4463530.1 -- L751.


TABLE OF AUTHORITIES

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Pa e s

Cases

Ashcro t v. Iq bal,556 .S. 662, 663 (2009) ............................................................................................2

Bell Atl. Corp . v. Twombly,550 U.S. 544, 555 (2007) .............................................................................................

Cordova v. FedEx Ground Package Sy stems, Inc.(D. OR 2015) 104 F. Supp. 3d 1119, 1131-1132 ........................................................3

Klaxon Co. v. Stentor Elec. Mfg. Co.313 US 487 (1941) ..................................................................................................... 5

OSUStudentAlliance v. Ray699 F.2d 1053, 1078 (9 h̀ Cir. 2012) ............................................................................8

Patton v. Cox276 F.3d 493, 495 (9th Cir. 2002) ................................................................................5

Reich v. Purcell(1967) 67 Cal.2d 551, 554-556 ...................................................................................5

Seismic Reservoir 2020 Inc. v. Paulsson785 F.3d. 330, 335 (9t" Cir. 2015) ...............................................................................?

Shroyer v. New Cingular Wireless Services, Inc.622 F.3d 1035, 1041(9" Cir 2010) ..............................................................................?

Southwest Admin., Inc v. Rozay 's Transfer791 F.2d 769, 777 (9th Cir. 1986) ......................................... ............. .........3

Statutes

FRCP§ 12(b)(6) .............................................................................................................. ~..

FRCP 12(b)(1) ................................................................................................................. 7

FRCP 12(b)(2) .................................................................................................................

FRCP 14 ..............................................................................................................1, 3, 4, 8

Other Authorities

Nevada Rev. Statutes, Section 78.138 ............................................................................6

iiDEFENDANT'S NOTICE OF MOTION AND MOTION TO DISMISS

4463530.1 -- L751.1


MEMORANDUM OF POINTS AND AUTHORITIES

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I. SUMMARY OF ARGUMENT

As previously discussed, at its heart, this is a simple contract dispute between

plaintiffs licensors Fifty-Six Hope Road Music Limited ("56 HR") and Hope Road

Merchandising, LLC ("HRM") and a licensee Jamming Java Corporation ("JJC").

Unfortunately, JJC persists in a pattern of conduct designed to confuse and muddy the

issues by improperly attempting to join Rohan Marley ("Mr. Marley") as a party to

this dispute. This is JJC's THIRD attempt to amend the pleadings against Mr. Marley,

JJC's frivolous mislabeling its pleading a "counterclaim" does not make it any more

viable than when JJC called it a "Third Party Complaint." The pleading, whatever

disguise that JJC places on it, remains irremediably flawed. For all these reasons, the

Court should grant Mr. Marley's Motion to Dismiss with prejudice and without leave

to amend.

Counterclaim Plaintiff Jammin Java Corporation's ("JJC") Amended

Counterclaim (the "Amended CC") is inherently flawed. Procedurally, the Amended

I~ CC is deficient because it was improperly filed against Counterclaim Defendant

Rohan Marley ("Mr. Marley") in violation of Federal Rules of Civil Procedure

("FRCP") Rule 15. On its face the Amended CC is erroneously titled. Indeed, JJC

states in its. pleadings that the Amended CC is its first attempt to amend its pleadings

against Mr. Marley and that the first set of pleadings should be overlooked by the

Court as they were erroneously titled. However, JJC fails to address the fact that its

Counterclaim is actually its THIRD attempt to amend its pleading and not an

amendment of the original Third Party Complaint (Doc #3) as required under FRCP

15. Indeed, on August 23, 2016, JJC and Mr. Marley entered into a Stipulation for an

extension of time to respond to the Third Party Complaint (Document #3). At no time

during the negotiations did counsel for JJC raise the alleged clerical error with respect

to the titling of its Pleadings. Instead, the document was executed and filed with the

Court (Document #) and Mr. Marley submitted is response an Amended Third Party

1MEMORANDUM OF POINTS AND AUTHORITIES

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Complaint wherein it alleged Instead, after being served with Mr. Marley's Motion to

~ Dismiss the Amended Complaint for, among other things, failure to state a claim for

relief pursuant to FRCP 14, JJC filed the very same document as an Amended

'Counterclaim and now attempts to convince this Court that it should accept the

Amended Counterclaim since the original Third Party Complaint was merely

mistitled.

On its face, the Amended CC states no claim for relief directly against Mr.

Marley and certainly none for which JJC may be derivatively liable, in whole or part,

as required under FRCP 14. Rather, the single claim for injunctive relief alleged by

JJC seeks some form of relief directly against plaintiffs Fifty-Six Hope Road Music

Limited ("56 HR") and Hope Road Merchandising, LLC ("HRM"). In its flawed

pleading, JJC does not seep to transfer liability for some or all of plaintiffs' claims

against JJC. Indeed, the Amended CC appears to have been filed with the sole intent

of trying to pressure settlement with plaintiffs by improperly harassing a member of

the Marley family. And, in any event, even if the meandering and disconnected

allegations of breach of fiduciary duty in the Amended CC were directed at Mr.

Marley, those allegations are clearly deficient under the applicable law of Nevada,

which applies here.

At its heart, this is a simple contract dispute between a licensor (i.e. 56 HR) and

a licensee (i.e. JJC). Interestingly, none of the parties have any relation to the State of

California. The reason that plaintiffs chose to file in California is that the license

agreements mandate California venue. Importantly, however, Mr. Marley is neither a

party to the license agreements nor is he personally bound by the venue or choice of

law provisions contained in those documents. Moreover, the pleadings state that Mr.

Marley is anon-resident of California and a citizen of Jamaica, so JJC has not met its

burden to sufficiently plead the Court's subject matter jurisdiction or personal

jurisdiction over Mr. Marley in California. For all these reasons, the Motion should

be granted without leave to amend.


4463530.1 -- L751.1


II. SUMMARY OF ALLEGATIONS

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The Amended CC is stated in paragraphs 139 to 144 of JJC's Answer to

'I Amended Complaint; Second Amended Verified Counterclaims and Amended Third

Party Complaint. The Amended CC makes only one claim, which is for "injunction"

(sic) relief against plaintiffs 56 HR and HRM. Inexplicably, the Amended CC does

'not make any affirmative claim for relief against Mr. Marley, the sole Third Party

Defendant. Nonetheless, the gist of the allegations is that Mr. Marley breached

fiduciary duties allegedly owed to JJC, a Nevada corporation.'

III. STANDARD FOR A MOTION TO DISMISS

A motion to dismiss under FRCP § 12(b)(6) may be brought when a pleading

fails to state a claim upon which relief can be granted. While a complaint attacked by a

FRCP § 12(b)(6) motion to dismiss does not need detailed factual allegations, a

plaintiff s obligation to provide the grounds of its entitlement to relief requires more

than labels and conclusions, and a formulaic recitation of a cause of action's elements

will not do. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Factual allegations

must be enough to raise a right to relief above the speculative level on the assumption

that all of the complaint's allegations are true." Id. A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged. Ashcroft v. Igbal, 556

U.S. 662, 663 (2009). Further, in evaluating a motion to dismiss, a court is "not bound

to accept as true a legal conclusion couched as a factual allegation." Id. at 678.

Dismissal is appropriate under FRCP § 12(b)(6) if the pleading fails to allege a

cognizable legal theory or it lacks sufficient facts to support a cognizable legal theory.

Sh~oyer v. New Cingular Wireless Services, Inc. 622 F.3d 1035, 1041(9th Cir 2010);

Seismic Reservoir 2020 Inc. v. Paulsson 785 F.3d. 330, 335 (9t" Cir. 2015).

~ It should be noted that JJC's injunctive relief claim appears to be an intentionaldeparture from its original Counterclaims and Third Party Claim, which attempted(unsuccessfully) to plead a claim for relief for breach of fiduciary duty.


4463530.1 -- L751.1


I V. THE AMENDED CC VIOLATES FRCP 14

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FRCP 14 clearly states that a Third Party Complaint is only permissible against

a "nonparty who is or may be liable to it for all or part of the claim against it." See

FRCP 14. To the extent that JJC's allegations can be understood, JJC seems to be

trying to hold Mr. Marley liable for breaches of alleged fiduciary duties owed to JJC

and not the plaintiffs. See Second Amended Verified Counterclaims and Amended

CC, Par. 141.

The purpose of a third party complaint is to allow a defendant to bring an action

against parties who are secondarily or derivatively liable to the defendant on account

of the plaintiff's claim. Southwest Admin., Inc v. Rozay's Transfer 791 F.2d 769, 777

(9th Cir. 1986). Since third party claim is limited to claims that are derivative of the

plaintiff's claims, the third party claim must have as its "essential criterion" an attempt

by the defendant to transfer to the Counterclaim Defendants liability that is asserted

by the original plaintiff against that defendant. As a corollary, the third party claim

cannot merely assert an independent or related claim by the defendant against the third

party; the claim must instead be based on the plaintiff's original claim against that

defendant. Cordova v. FedEx Ground Package Systems, Inc. (D. OR 2015) 104 F.

Supp. 3d 1119, 1131-1132.

The Amended CC violates FRCP 14. JJC improperly attempts under the guise

of a Third Party Complaint to forcibly inject Mr. Marley into a dispute that JJC has

with plaintiffs. JJC's claim in the Amended CC, however, does not implicate

derivative liability by Mr. Marley for the claims that have been asserted by plaintiffs

against JJC. The entire Amended CC is therefore improper under FRCP 14.

Furthermore, the Amended CC suffers from other inherent defects. By JJC's

own admission the events about which it complains occurred after Mr. Marley

resigned his position as a director of JJC. In a nutshell the alleged timeline is as

follows:

1) Mr. Marley resigned as a director of JJC on June 27, 2016. See


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Second Amended Verified Counterclaims, Par. 65.

2) JJC admits that it signed what it refers to as the Short Term License

Agreement on July 6, 2016. See Second Amended Verified

Counterclaims, Pars. 70-71. (The Court may take judicial notice that

the Short Term License Agreement clearly states that it supersedes and

replaces the Long Term License Agreement; therefore, any allegations

concerning the Long Term License Agreement are moot. See Short

Term License Agreement, attached as Exhibit D to the Declaration of

Anh Tran In Support of Ex Parte Application For Temporary

Restraining Order.)

3) Plaintiffs terminated the Short Term License Agreement on July 21,

2016. See Second Amended Verified Counterclaims, Par. 71.

There is no plausible legal theory pled in the Amended CC under which Mr.

Marley would owe fiduciary duties to JJC to act or not act in any certain way at the

time when he was a director or officer of JJC. See Second Amended Verified

Counterclaims and Amended CC, Par. 141 (listing all events that occurred after Mr.

Marley had resigned). More importantly, there is nothing alleged by JJC that would

require Mr. Marley to indemnify it for plaintiffs' claims or contribute to any award

given to plaintiffs; which confirms that filing the Amended CC is improper under

FRCP 14. Therefore, the Amended CC should be dismissed for violating FRCP 14.

V. THE AMENDED CC FAILS TO STATE A CLAIM UPON WHICH

RELIEF CAN BE GRANTED

A. The Amended Third Party Complaint is Facially Deficient

The Amended CC makes only one claim, which is for injunctive relief against

plaintiffs 56 HR and HRM. See Amended CC, Pars. 139 through 144. Inexplicably,

~ the Amended CC does not make ANY claims for relief directly against Mr. Marley,

~ the sole Third Party Defendant.

Therefore, the pleadings are fatally defective and the Amended CC should be

sMEMORANDUM OF POINTS AND AUTHORITIES

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dismissed. As this is already an amended pleading, the Court should not grant leave

to further amend.

B. JJC Has Not Pled Sufficient Allegations To State A Claim of Breach

of Fiduciary Duty Under Applicable Nevada Law

JJC is a Nevada Corporation. See Second Amended Verified Counterclaims,

Par. 19. Although JJC has not asked for any relief against Mr. Marley, it is alleged

that Mr. Marley, in his capacity as a director of JJC, breached his fiduciary duty to

JJC. See Amended CC, Pars. 140-141. As is more fully discussed below, even if JJC

had asked for affirmative relief against Mr. Marley, and it did not, the allegations fall

short of stating a cognizable claim under applicable Nevada law.

The Amended CC is basically akin to a shareholder's derivative claim. Under

California Corporations Code Section 2116 the law of incorporation controls for such

a claim. See California Corporations Code, Section 2116. Here, the state of

incorporation of JJC is indisputably Nevada.

In addition, Nevada law governs any claim for breach of fiduciary duty against

Mr. Marley. This is because in diversity cases (such as alleged here) federal courts

apply the same choice of law rules that the local state courts would apply. Klaxon Co.

v. Stentor Elec. Mfg. Co. 313 US 487 (1941); Patton v. Cox 276 F.3d 493, 495 (gtn

Cir. 2002). California applies the "governmental interest analysis" in resolving

choice-of-law issues. Reich v. Purcell (1967) 67 Ca1.2d 551, 554-556. The

governmental interest approach generally involves three steps. First, the court

determines whether the relevant law is the same or different for each of the potentially

affected jurisdictions with regard to the particular issue in question. Second, if there is

a difference in the law, the court examines each jurisdiction's interest in the

application of its own law under the circumstances of the particular case to determine

whether a true conflict exists. Third, if the court finds that there is a true conflict, it

carefully evaluates and compares the nature and strength of the interest of each

jurisdiction in the application of its own law "to determine which state's interest would


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be more impaired if its policy were subordinated to the policy of the other state" and

then ultimately applies "the law of the state whose interest would be the more

impaired if its law were not applied." See also, Kearney v. Salomon Smith Barney,

Inc. (2006) 39 Ca1.4th 95, 106.

Here, California has no interest in any outcome of the breach of fiduciary duty

claim because: (1) JJC is not a resident or citizen of California, (2) no specific

wrongful acts are alleged to have taken place in California, and (3) there was no harm

caused to JJC in California. Nevada, on the other hand, has compelling reasons to

apply its law to this case because JJC is a Nevada corporation that is incorporated

under and subject to the jurisdiction and laws of Nevada. And, to the extent any

wrongful acts or harm can be alleged they would likely accrue in Nevada or to Nevada

citizen (i.e. JJC). Furthermore, Mr. Marley, as a director of a Nevada corporation,

would reasonably expect that Nevada law would apply to his fiduciary duties. Nevada

law therefore applies to the extent that JJC's allegations can be seen to constitute a

claim for breach of fiduciary duty against Mr. Marley.

Unlike California, if a company incorporates in Nevada its directors and

officers are statutorily protected from liability for breaches of duty of care, loyalty and

good faith, and even improper personal benefits; unless it is alleged that these officers

or directors committed fraud or a knowing violation of law. See Nevada Rev.

Statutes, Section 78.138. Here, JJC has not (and cannot in good faith) make any

allegations that Mr. Marley engaged in any intentional misconduct, fraud or knowing

violation of law.

Therefore, JJC has failed to state a claim upon which relief can be granted and

~ the Amended CC must be dismissed. As this is an amended pleading, the Court should

~ not grant leave to further amend.

C. The Civil Conspiracy Claim Must be Dismissed

A naked claim of civil conspiracy cannot stand on its own. "A conspiracy

cannot be alleged as a tort separate from the underlying wrong it is organized to

MEMORANDUM OF POINTS AND AUTHORITIES4463530.1 -- L751.1


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achieve. As long as the underlying wrongs are subject to privilege, defendants cannot

be held liable for a conspiracy to commit those wrongs. Acting in concert with others

does not destroy the immunity of defendants." McMartin v. Children's Institute

International (1989) 212 Cal.App.3d 1393, 1406 [261 Ca1.Rptr. 437J, internal

citations omitted; see also Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th

503, 510-11 (1994) (noting that in California civil conspiracy is "not a cause of

action"). In short a pleading of civil conspiracy is defective if there is not an

underlying cause of action that is also alleged.

Here, JJC has only alleged two causes of action in its proposed amended

pleading, the first is for breach of fiduciary duty (which was shown to be defective in

Mr. Marley's motion papers and is not alleged to be the basis of the civil conspiracy

claim), and a second for civil conspiracy that lists several torts that are nowhere

alleged against Mr. Marley in the proposed third amendment. Therefore, the civil

conspiracy claim must fall and the Court should deny permission to further amend.

VI. MR. MARLEY SHOULD NOT BE A PARTY TO THIS ACTION

A review of the allegations in the Complaint makes clear that Mr. Marley

cannot be properly joined in this action as either a Third Party Defendant nor through

joinder as "counterclaim defendant." The Complaint asserts eight causes of action

against JJC. None of these causes of action require or allow Mr. Marley to be added

as a party to this action. Indeed, the causes of action for breach of the licensing

agreements concern only the acts of JJC that breached the agreements (e.g. failure to

provide required financial statements, failure to pay royalties, and violation of SEC

regulations). See Complaint pars. 56 and 61. The other causes of action also do not

relate to Mr. Marley. See Complaint pars. 64 - 104.

The allegations raised by JJC (and the allegations that JJC would like to add in

a third amended pleading) simply do not have a common nexus with the allegations of

the Complaint. JJC cannot rely on Fed. R. Civ. Proc. 20(a)(1)(A), because Mr.

Marley has not asserted any claims against JJC. In addition, the lack of common

sMEMORANDUM OF POINTS AND AUTHORITIES

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causes and facts is fatal under Fed. R. Civ. Proc. 20(a)(1)(B), which JJC purportedly

relies (the same defects exist if JJC had cited to Fed R. Civ. Proc. 20(a)(2)). Despite

JJC's attempt to allege civil conspiracy, the breach of fiduciary duty allegations are

personal to Mr. Marley cannot be common with the plaintiffs. If JJC wants to attempt

asserting of cause of action against Mr. Marley, then it must do so in a separate action

and in a proper venue. This Court should reject JJC's frivolous claims and order that

Mr. Marley be dropped as a party to this action. See Fed. R. Civ. Proc. 21.

VII. THE AMENDED CC MUST BE DISMISSED FOR LACK OF SUBJECT

MATTER AND PERSONAL JURISDICTION AND INSUFFICIENT

SERVICE OF PROCESS

A. The Court Lacks Subject Matter and Personal Jurisdiction Over Mr.

Markey

1. Lack of Subject Matter Jurisdiction

The Amended CC must stand on its own and establish the court's subject matter

and personal jurisdiction. A mere claim for breach of fiduciary duty against Mr.

Marley (assuming that is what JJC has attempted to plead) does not give rise to

original federal subject matter jurisdiction. Moreover, since the only claim alleged in

the Amended CC is for injunctive relief, the Court lacks diversity jurisdiction because

there is no claim for an amount greater than $75,000.

Therefore, the Amended CC should be dismissed for lack of subject matter

jurisdiction under FRCP 12(b)(1).

2. Lack of Personal Jurisdiction

JJC alleges that "Rohan Marley is not, and was not at any relevant time, a

citizen of the State of California." See Second Amended Verified Counterclaims, Par.

13. Counterclaim Plaintiff JJC is a Nevada corporation. Id., Par. 19. Plaintiff 56 HR

is a Bahamian corporation and plaintiff HRM is a Florida limited liability company.

Id., Pars. 3-4. In short, NONE of the parties to this case have a relevant connection

with California. In fact, the reason that plaintiffs chose to file suit in California


4463530.1 -- L751.


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appears to be that the license agreements mandate a California venue. Mr. Marley,

however, is not a party to the license agreements and he is not personally bound by the

venue or choice of law provisions contained in those documents.

More importantly, the relevant events alleged in the Amended CC do not take

place in California and do not concern California. Second Amended Verified

Counterclaims and Amended CC, Pars. 30-144. Minimum contacts have clearly not

been sufficiently alleged to support personal jurisdiction over Mr. Marley.

Therefore, the Amended CC should be dismissed for lack of personal

jurisdiction under FRCP 12(b)(2).

VIII. THE COURT SHOULD STAY DISCOVERY REGARDING THE

AMENDED CC

It is clear that the primary purpose of the Amended CC is to vex and harass Mr.

Marley. In this situation, the Court has the power to grant a stay on discovery if the

challenged pleading lacks plausibility, where discovery would be futile, or the Court is

convinced that a party will be unable to state a claim. OSUStudentAlliance v. Ray

699 F.2d 1053, 1078 (9t" Cir. 2012). Based on the circumstances presented in this

case with (1) a clear violation of FRCP 14, (2) the lack of a cognizable legal theory

asserted against Mr. Marley, (3) lack of subject matter jurisdiction, and (4) lack of

personal jurisdiction in California, the Court has ample grounds to issue a stay on all

discovery with respect to the Amended CC until a decision is rendered on the Motion

to Dismiss. A stay on discovery is warranted in order to conserve judicial resources

and avoid causing Mr. Marley to incur additional unnecessary expenses and attorneys'

fees.

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4463530.1 -- L751.1


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IX. CONCLUSION

Based on the foregoing reasons, Mr. Marley respectfully requests that the Court

grant this Motion to Dismiss the Amended CC in its entirety, with prejudice and

without leave to amend; stay discovery with respect to the Third Party action pending

decision of this Motion to Dismiss and award Counterclaim Defendant any other relief

as may be just.

DATED: November 10, 2016 BRYANT RABBINOA Limited Liability Partnership

By: /s/Mercinth C. PearceMERCINTH C. PEARCE(PRO HAC VICE)

By: /s/Rick D. NavarretteRICK D. NAVARRETTEALVARADOSMITHA Professional Corporation


1 1MEMORANDUM OF POINTS AND AUTHORITIES

4463530.1 -- L751.1


CERTIFICATE OF SERVICE

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I HEREBY CERTIFY that a true and correct copy of the foregoing was

electronically served via email to the parties listed on the service list below, and to the

parties authorized to receive via this Court's CM/ECF system on this l Ot" day of

November, 2016.

Giovanni M. RuscittiBerg,Hill, Greenleaf & Ruscitti1712 Pearl StreetBoulder, Colorado 80302

Padraic I. McCoyTilden, McCoy & Dilweg, LLP13310 Maxella Avenue, Suite DMarina Del Rey, California 90292

Joshua GellerJonathon B. SokolGreenberg, Glusker, Fields, Claman & Machtinger1900 Avenue of the Stars, 21St FloorLos Angeles, California 90067

Taylor C. FossMichelman &Robinson, LLP17901 Von Karman Avenue, Suite 1000Irvine, California 92614

Michael L. FranciscoMRD Law3301 W. Clyde PlaceDenver, Colorado 80211

B

JO IE L. ALAMILLO

1CERTIFICATE OF SERVICE

4463530.1 -- L751.


Documents

MERCINTH PEARCE (Pro Hac Vice) BRYAN RABBINO LLP · MERCINTH PEARCE (Pro Hac Vice) ... CASE NO.: 16-cv-05810-SVW (MRW) JUDGE: Hon. Stephen V. Wilson ... FedEx Ground Package Sy stems,