Commercial Litigation and Arbitration

Burdens, Pleadings and Proof on 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction

From SDS Korea Co. v. SDS USA, Inc., 2010 U.S. Dist. LEXIS 80223 (S.D. Cal. Aug. 4, 2010):

Under Rule 12(b)(2) of the Federal Rules of Civil Procedure, a defendant may move to dismiss for lack of personal jurisdiction. The plaintiff then bears the burden of demonstrating that jurisdiction exists. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). The plaintiff "need only demonstrate facts that if true would support jurisdiction over the defendant." \Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995). Uncontroverted allegations in the complaint must be taken as true. AT&T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996). However, the court may not assume the truth of such allegations if they are contradicted by affidavit. Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1284 (9th Cir. 1977). In a case such as this, where a court considers only affidavits and discovery materials, the plaintiff need only make a prima facie showing of jurisdiction. *** Further, "conflicts between the facts contained in the parties' affidavits must be resolved in [the plaintiff's] favor for purposes of deciding whether a prima facie case for personal jurisdiction exists." ***

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