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United States District Court 

For the Northern District of California 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

LELAND BRAY, 

Plaintiff, 

v. 

MESSMORE KENDALL, HONEY TAYLOR, 

MESSMORE KENDALL III, ALEXANDER 

KENDALL, and DOES 1 through 100, 

inclusive, 

Defendants. 

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Case No. 08-0535 SC 

ORDER GRANTING DEFENDANT'S 

MOTION TO DISMISS

I. INTRODUCTION

Now before the Court is the Motion to Dismiss the First 

Amended Complaint for Lack of Personal Jurisdiction and Improper 

Venue ("Motion"), and Memorandum of Support ("Kendall Mem.") filed 

by Defendant Messmore Kendall ("Kendall"), Docket No. 16. 

Plaintiff Leland Bray ("Bray") filed an Opposition ("Opp'n"). 

Docket No. 37. In this Court's Order of September 23, 2009, the 

parties were asked to submit additional briefing regarding the 

service and venue provisions of the Racketeer Influenced and 

Corrupt Organizations Act ("RICO"), as well as the jurisdictional 

consequences thereof. Docket No. 39. In response to that Order, 

Kendall has submitted a Supplemental Brief and Bray has submitted a 

Supplemental Opposition. Docket No. 42 ("Kendall Supplemental 

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United States District Court

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Br."), 44 ("Supplemental Opp'n"). Having considered all of the 

papers submitted by both parties, the Court hereby GRANTS Kendall's 

Motion, for the reasons stated below. 

II. BAKCGROUND

 Bray is a citizen of the United States, with his primary 

residence in the State of California. First Am. Compl. ("FAC"), 

Docket No. 13, ¶ 1. At the end of 2003, the time that this dispute 

originated, Bray was residing with his wife in Baja California. 

Bray Decl.1

 ¶ 7. Kendall resides in Florida. Kendall Decl.2 ¶ 2. 

Bray has acknowledged that Kendall and all other Defendants are not 

residents of California. FAC ¶ 2. 

Kendall was the owner of a house in Puerto Vallarta, Mexico. 

Id. ¶ 7. He owned it pursuant to a bank trust with Bital Bank, 

which was later purchased by HSBC Bank. Id. Defendants Honey 

Taylor, Messmore Kendall III, and Alexander Kendall (collectively 

with Kendall, "Defendants") were subsequent beneficiaries of that 

trust. Id. Kendall listed the house for sale with PV Real Estate, 

a company that represents itself as being experienced in 

transferring property in Mexico to American citizens. Id. ¶¶ 8-9. 

PV Real Estate operates its business from Puerto Vallarta. See

Bray Decl. Ex. A. In December of 2003, after viewing the website 

of PV Real Estate, Bray and his wife met with its agents and agreed 

to purchase Kendall's house. FAC ¶¶ 9-10. An escrow was opened at 

First American Title Company ("First American") in Sunrise, 

 

1

 Bray submitted a declaration in support of the Opposition. 

Docket No. 36. 

2

 Kendall submitted a declaration in support of the Motion. Docket 

No. 18. 

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Florida.3 Id. ¶ 11. 

Bray claims that the contract and escrow instructions "omitted 

any mention of capital gains and fixed a specific date for closing 

of the sale without making any provision for extending the time for 

closing of the escrow in the event such was necessary." Id. ¶ 12. 

Bray claims that he was unaware of this problem, and after signing 

the documents, he wired $44,000 as a 10% guaranteed deposit, and a 

$500 escrow fee, from his bank in California to First American. 

Id. ¶¶ 13,14. 

Bray claims that although Kendall signed a cesion of rights 

with respect to the property and delivered it to HSBC, the bank 

refused to accept the cesion of rights because it should have been 

signed by Kendall's attorney in fact, rather than by Kendall 

himself. Id. ¶¶ 16-17. Bray contends that PV Real Estate 

concealed this fact from him. Id. ¶ 17. Because Bray believed the 

transfer was underway, he authorized Kendall and PV Real Estate to 

immediately receive any money sent to the escrow account. Id.

¶ 18-19. Bray claims that sometime before February 13, 2004, his 

bank in California transferred the remaining $400,000 in purchase 

money to First American, and this money was distributed before 

Kendall turned over the property to Bray. Id. ¶ 19. Bray also 

suggests that someone at PV Real Estate and/or Kendall "faxed 

forged documents purportedly signed by the Brays to First 

American." Id.

Although Bray and his wife eventually moved into the house, 

Bray never received legal title. Bray Decl. ¶¶ 16-18. The parties 

 

3

 Bray also refers to this as First American Title Insurance 

Company. FAC ¶ 14. 

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attempted to resolve the dispute over the title for many years, 

however they have apparently been unable to resolve the question of 

who should be responsible for the capital gains tax. Id. ¶ 21. In 

January of 2008, Bray filed suit against Defendants in the Northern 

District of California. Bray asserts a total of ten causes of 

action, ranging from fraud and negligent misrepresentation to 

violation of RICO. 

III. LEGAL STANDARDS

Rule 12(b)(2) of the Federal Rules of Civil Procedure permits 

a court to dismiss a suit for lack of personal jurisdiction over a 

defendant. "The burden of proof is on the plaintiff to show that 

jurisdiction is appropriate, but in the absence of an evidentiary 

hearing, the plaintiff need only make a prima facie showing of 

jurisdictional facts." Sher v. Johnson, 911 F.2d 1357, 1361 (9th 

Cir. 1990). The "court may consider evidence presented in 

affidavits to assist in its determination and may order discovery 

on the jurisdictional issues." Doe v. Unocal Corp., 248 F.3d 915, 

922 (9th Cir. 2001). 

Generally, jurisdiction must comport with both the long-arm 

statute of the state in which the district court sits, as well as 

the constitutional requirements of due process. Mattel, Inc., v. 

Greiner & Hausser GmbH, 354 F.3d 857, 863 (9th Cir. 2003). The 

Ninth Circuit has recognized that the California long-arm statute, 

Cal. Code Civ. Proc. § 410.10, allows Courts to exercise 

jurisdiction consistent with the limits of the Due Process Clause 

of the Constitution, "so a federal court may exercise personal 

jurisdiction if doing so comports with federal constitutional due 

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United States District Court

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process." Boschetto v. Hansing, 539 F.3d 1011, 1015-16 (9th Cir. 

2009). 

IV. DISCUSSION

 A defendant may be subject to personal jurisdiction within a 

particular judicial district pursuant to theories of either general 

or specific jurisdiction. See Boschetto, 539 F.3d at 1015-16. In 

either case, the "defendant must have at least 'minimum contacts' 

with the relevant forum such that the exercise of jurisdiction 

'does not offend traditional notions of fair play and substantial 

justice.'" Id. (quoting Schwarzenegger, 374 F.3d at 801). General 

jurisdiction "permits a defendant to be haled into court in the 

forum state to answer for any of its activities anywhere in the 

world," and requires that the defendant be engaged in "continuous 

and systematic general business contacts" that "approximate 

physical presence" in the forum. See Schwarzenegger, 374 F.3d at 

801 (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 

U.S. 408, 416 (1984); Bancroft & Masters, Inc. v. Augusta Nat'l, 

Inc., 223 F.3d 1082, 1086 (9th Cir. 2000)). 

 Alternatively, "a court may exercise specific jurisdiction 

over a foreign defendant if his or her less substantial contacts 

with the forum give rise to the cause of action before the court." 

Unocal Corp., 248 F.3d at 923. The Ninth Circuit has developed a 

three-pronged test to determine whether specific jurisdiction over 

a non-resident defendant is appropriate: 

(1) The non-resident defendant must purposefully 

direct his activities or consummate some 

transaction with the forum or resident thereof; 

or perform some act by which he purposefully 

avails himself of the privilege of conducting 

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United States District Court

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activities in the forum, thereby invoking the 

benefits and protections of its laws; 

(2) the claim must be one which arises out of or 

relates to the defendant's forum-related 

activities; and 

(3) the exercise of jurisdiction must comport 

with fair play and substantial justice, i.e. it 

must be reasonable. 

Boschetto, 539 F.3d at 1016 (quoting Schwarzenegger, 374 F.3d at 

801). 

A. Whether Bray's RICO Claim Permits Personal Jurisdiction 

Before This Court Based on "National" Contacts

The Court must first determine which forum is relevant for 

measuring minimum contacts and determining personal jurisdiction: 

California, or the United States. District courts generally derive 

their jurisdiction over defendants from the proper service of 

process as to those defendants, and their jurisdiction is therefore 

bounded by the statutes that authorize service. See Action 

Embroidery Corp. v. Atl. Embroidery, Inc., 368 F.3d 1174, 1177 (9th 

Cir. 2004). Bray argues that under certain federal statutes that 

authorize nationwide service of process, any federal district court 

has jurisdiction over a properly served defendant that has minimum 

contacts with the United States. Opp'n at 8. Bray is correct in 

this regard -- where Congress establishes nationwide service of 

process, such service may establish personal jurisdiction over a 

defendant. In Action Embroidery, the Ninth Circuit recounted that 

"the relevant forum with which a defendant must have 'minimum 

contacts' in a suit brought under Section 12 of the Clayton Act is 

the United States," rather than the particular state in which the 

district court sits. 368 F.3d at 1180. Bray argues that RICO 

similarly authorizes nationwide service of process. Opp'n at 8. 

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United States District Court

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Under this reasoning, Kendall's contacts with California are 

irrelevant to personal jurisdiction, so long as he has minimum 

contacts with the United States. However, Action Embroidery, 

addressed the service provisions of the Clayton Act, and did not 

hold that RICO includes a national service provision. The question 

before this Court is therefore whether RICO in fact authorizes 

national service of process under Ninth Circuit law. 

Bray does not identify which RICO provision he is relying on 

to authorize national service of process. RICO has two provisions 

that circuit courts have identified as relevant to service of 

process: Sections 1965(b) and 1965(d) of title 18 of the United 

States Code. Section 1965(b) states: 

[A]ny district court of the United States in 

which it is shown that the ends of justice 

require that other parties residing in any other 

district be brought before the court, the court 

may cause such parties to be summoned, and 

process for that purpose may be served in any 

judicial district of the United States by the 

marshal thereof. 

18 U.S.C. § 1965(b). Subsection (d) states that "[a]ll other 

process in any action or proceeding under this chapter may be 

served on any person in any judicial district in which such person 

resides, is found, has an agent, or transacts his affairs." Id.

§ 1965(d). 

 A circuit split has developed regarding how these provisions 

should be read. The Ninth Circuit was the first to address this 

issue. It relied exclusively on subsection (b) to conclude that: 

the right to nationwide service in RICO suits is 

not unlimited. For nationwide service to be 

imposed under section 1965(b), the court must 

have personal jurisdiction over at least one of 

the participants in the alleged multidistrict 

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United States District Court

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conspiracy and the plaintiff must show that there 

is no other district in which a court will have 

personal jurisdiction over all of the alleged coconspirators. 

Butcher's Union Local No. 498 v. SDC Invest., Inc., 788 F.2d 535, 

538 (9th Cir. 1986) (citations omitted). In other words, the Ninth 

Circuit has held that a plaintiff may utilize subsection (b) to 

establish personal jurisdiction over codefendants only if there is 

personal jurisdiction -- using traditional state-based minimum 

contact analysis -- over at least one defendant. This would 

require Bray to establish minimum contacts between at least one 

Defendant and California. However, Butcher's Union did not address 

the significance of subsection (d). 

 Bray cites two decisions issued by the Fourth and Eleventh 

Circuits, both of which were authored roughly eleven years after 

Butcher's Union, and both of which rely on subsection (d) to 

conclude that RICO generally does authorize nationwide service of 

process. Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 

119 F.3d 935, 942 (11th Cir. 1997); ESAB Group, Inc. v. Centricut, 

Inc., 126 F.3d 617, 626 (4th Cir. 1997). In both of these cases, 

the circuit courts found that RICO authorizes nationwide service of 

process, and that district courts may therefore establish personal 

jurisdiction based upon a defendant's minimum contacts with the 

United States where the plaintiff brings a RICO claim. Because 

Bray cites Panama and ESAB Group to support his arguments, this 

Court assumes that Bray is not basing his assertion of nationwide 

service of process on this subsection. 

Kendall argues that this Court should not adopt the reading of 

subsection (d) that is found in Panama and ESAB Group. Although 

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the Ninth Circuit has not revisited the question of nationwide 

service under RICO since Butcher's Union, Kendall argues that the 

position of the Fourth and Eleventh Circuits has not spread to 

other circuits, and is effectively precluded by Butcher's Union. 

Kendall Supplemental Br. at 3-4. This Court agrees. The Tenth 

Circuit thoroughly addressed the progression of case law 

surrounding RICO's service provisions in Cory v. Aztec Steel Bldg., 

Inc., 468 F.3d 1226, 1229-33 (10th Cir. 2006). It first observed 

that the Seventh and Second Circuits had already taken positions 

similar to that taken by the Ninth Circuit in Butcher's Union, by 

looking exclusively to subsection (b) to permit conditional 

nationwide service. Id. at 1230 (citing PT United Can Co. v. Crown 

Cork & Seal Co., 138 F.3d 65 (2nd Cir. 1998); Lisak v. Mercantile 

Bancorp, Inc., 834 F.2d 668, 671 (7th Cir. 1987)). It noted that 

the Second Circuit had analyzed the entirety of 18 U.S.C. § 1695 to 

conclude that jurisdiction must rest on § 1965(b) alone, and 

explicitly rejected using subsection (d) to authorize nationwide 

service of summons, finding that its reference to "other process" 

referred only to process other than summons or government 

subpoenas. Id. (citing PT United, 138 F.3d at 72). The Tenth 

Circuit adopted this position as well, id. at 1231, as did the D.C. 

Circuit two years later, FC Inv. Group LC v. IFX Mkts., Ltd, 529 

F.3d 1087, 1099 (D.C. Cir. 2008). 

Although this Court requested additional briefing on the issue 

of nationwide service of process after Bray raised the argument in 

his Opposition, Bray did not address this issue in his Supplemental 

Opposition, and has not suggested that the Ninth Circuit's position 

has shifted since Butcher's Union. Given the Ninth Circuit's 

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decision with respect to subsection (b), its silence with respect 

to subsection (d), and other circuit courts' rejection of 

nationwide service under subsection (d), this Court will not allow 

Plaintiff to rely on subsection (d) alone to establish 

jurisdiction. "When a civil RICO action is brought in a 

district court where personal jurisdiction can be established over 

at least one defendant, summonses can be served nationwide on other 

defendants if required by the ends of justice." Cory, 468 F.3d at 

1131. Consequently, Bray needs to establish that this Court has 

personal jurisdiction over at least one defendant, based on minimum 

contacts with California, before he may rely on RICO's nationwide 

service of process provision to establish jurisdiction over the 

codefendants. Butcher's Union, 788 F.2d at 538. 

B. Minimum Contacts with California

Bray has not suggested that Defendants are subject to general 

jurisdiction in California. Rather, Bray asserts that "Kendall 

purposefully entered into the transaction to sell the Property to 

Bray knowing that Bray was an American citizen and that the money 

for the purchase price was coming from California." Opp'n at 6. 

Although Bray apparently held a California residence at the 

time that he dealt with PV Real Estate, he claims to have been 

residing outside of the United States at the time, within Baja 

California. Bray Decl. ¶ 7. Bray met with PV Real Estate in their 

office. FAC. ¶ 9. Bray has failed to explain how any act 

performed by Defendants or their agents was ever "directed" at 

California. Nor has Bray identified a single communication that 

was directed to California. This Court is not persuaded that 

negotiating with a California resident can suffice to establish 

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personal jurisdiction, where there is no basis to conclude that any 

of the negotiations took place in California. 

Bray informed PV Real Estate that he would be paying for the 

property with funds that were located in California, and that 

Defendants "caused" him to wire these funds from California into 

the escrow account in Florida. Bray Decl. ¶¶ 8, 11. However, 

drawing funds from a California bank account is not sufficient to 

establish jurisdiction in California. "[T]he bank on which a check 

is drawn is generally of little consequence to the payee and is a 

matter left to the discretion of the drawer. Such unilateral 

activity of another party or a third person is not an appropriate 

consideration when determining whether a defendant has sufficient 

contacts with a forum State to justify an assertion of 

jurisdiction." Helicopteros, 466 U.S. at 416-17; see also Synergy, 

Inc. v. Manama Textile Mills, W.L.L., No. 06-4129, 2008 U.S. Dist. 

LEXIS 12791, *26 (Feb. 20, 2008 D.N.J.) ("[I]t is improper to 

sustain specific jurisdiction on the basis of the location of a 

resident party's bank."); Int'l Beauty Prods., LLC v. Beveridge, 

402 F. Supp. 2d 1261, 1275 (D. Col. 2005) ("[T]he fact that checks 

are drawn on a Colorado bank account is not sufficient to show harm 

in Colorado when, as here, the checks are cashed in another 

state."). 

Bray offers a number of other sundry connections between the 

Defendants and California, but none of these are sufficient to 

establish minimum contacts. Although Kendall admits to having been 

to California, he has not come since 1981. Kendall Decl. ¶ 3. The 

fact that Kendall's "friend and agent" at PV Real Estate frequently 

comes to California or advertises in California is insufficient. 

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See Bray Decl. ¶ 27. This connection is far too tenuous to support 

asserting personal jurisdiction over Kendall or the other 

Defendants. The Court concludes that Bray has not made a prima 

facie showing of minimum contacts between Kendall, or any other 

Defendant, and the State of California.4 

C. Transfer

Bray has requested that this suit be transferred to Florida in 

the event that personal jurisdiction is found lacking. Opp'n at 8. 

28 U.S.C. § 1406(a) states that "[t]he district court of a district 

in which is filed a case laying venue in the wrong division or 

district shall dismiss, or if it be in the interests of justice, 

transfer such case to any district in or division in which it could 

have been brought." 28 U.S.C. § 1406(a). The question is 

therefore whether justice requires transfer of this suit to 

Florida, rather than dismissal. 

The only affirmative reason that Bray provides for transfer is 

that "Kendall admits he resides in Florida." Id. at 9. Bray 

never explains why the interests of justice require transfer. He 

does not explain why he would be prejudiced by a failure to 

transfer. He does not suggest that a statute of limitations has 

run that would prevent him from refiling in a more proper forum. 

The Court may decline to transfer based solely upon this failure. 

What Bray does provide is several pages of briefing to explain 

why the forum-selection provision of the offer document that he 

signed is inoperative (in fact, this is the only topic that is 

substantially addressed by Bray's supplemental brief). Opp'n at 

 

4

 Because of the Court's finding with respect to personal 

jurisdiction, it need not reach Kendall's claim that venue is 

improper. 

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9-11; Supplemental Opp'n at 1-4. The Court is unpersuaded. Bray 

has not met his burden of establishing that the forum-selection 

provision is unenforceable, and this provision weighs against 

transferring this case to Florida in the interest of justice. 

Although this suit does involve two United States citizens, it is 

not a local dispute, and the parties have unambiguously selected a 

Mexican forum to resolve it. The contract stated that the parties 

would submit to the jurisdiction of the Court and Tribunals of the 

City of Puerto Vallarta for "interpretation and execution of the 

present Offer . . . waiving to those [jurisdictions] that may 

correspond them by virtue of their present and future domiciles." 

Bray Decl. Ex. B ("Bray Offer") at 5. This language does more 

than designate a Mexican forum as a possible forum -- it 

unambiguously waives access to the jurisdictions of the parties' 

home fora. Bray has not stated any compelling reason why the 

chosen forum is inadequate, or even inconvenient, except by 

stating in a conclusory manner that a Mexican forum will not be 

"expeditious and fair" and will be "unpredictable and corrupt." 

Opp'n at 11. Bray has not presented any compelling reason why 

transfer to Florida is in the interest of justice. 

V. CONCLUSION

 The First Amended Complaint is hereby DISMISSED for lack of 

personal jurisdiction over Defendants. 

IT IS SO ORDERED. 

Dated: January 5, 2010 

UNITED STATES DISTRICT JUDGE

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