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Bova Properties, L.L.C. v. Velocity Ventures, L.L.C.

United States District Court, E.D. Michigan, Southern Division

May 6, 2015

BOVA PROPERTIES, L.L.C., Plaintiff,
v.
VELOCITY VENTURES, L.L.C., and JARED E. LARSON, Defendants.

OPINION AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS [11]

NANCY G. EDMUNDS, District Judge.

This matter is before the Court on Defendants' motion to dismiss this action based on lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). (Dkt. #11). Plaintiff opposes the motion, arguing that Defendants consent to jurisdiction because they agreed to a forum selection clause. The parties through their counsel appeared at a hearing on April 29, 2015. For the reasons set forth below, the Court DENIES Defendants' motion to dismiss.

I. FACTS

A. Background

On December 5, 2014, Plaintiff BoVa Properties, L.L.C., filed this diversity action against Defendants Velocity Ventures, L.L.C., and Jared E. Larson. Plaintiff alleges that on or about August 8, 2013, Defendant Velocity entered into the Gold Mining Agreement ("Agreement") with Plaintiff. Plaintiff alleges that pursuant to the Agreement, on August 12, 2013, Plaintiff wired $420, 000 to Defendant Velocity "for the purpose of financing gold from Africa." (Pl.'s Compl. ¶ 13). Plaintiff alleges that Defendant Velocity failed to provide an accounting of its activities and access to its bank account(s) pursuant to the Agreement, failed to purchase any gold, and refuses to return the money to Plaintiff. Plaintiff's complaint seeks a declaratory judgment as to whether the Arbitration of Disputes provision or the Applicable Law provision of the Agreement is controlling (Count I); alleges that Defendant Velocity breached the Agreement (Count II); seeks equitable relief and an injunction ordering Defendant Velocity to provide a detailed accounting of all financial transactions and access to its bank accounts pursuant to the Agreement and enjoining Defendants from transferring any of the $420, 000 prior to resolving this dispute (Count III); and alleges unjust enrichment (Count IV, incorrectly identified in Compl. as Count VI). This matter is now before the Court on Defendants' motion to dismiss for lack of personal jurisdiction.

B. Parties' Citizenship

Plaintiff alleges Defendant Velocity is a Utah Limited Liability Company owned by sole member Defendant Larson. (Pl.'s Compl. ¶ 2; Pl.'s Resp. to Order Show Cause ¶¶ 4, 5, 6). Defendants have not yet filed an Answer, but the motion to dismiss is consistent with Plaintiff's allegations of citizenship. Defendant Velocity is a Utah company with its principal place of business in Utah. (Defs.' Mot. Dismiss). Defendant Larson lives in Utah. (Id. ).

Plaintiff is a Michigan Limited Liability Company owned by Vanco Serafimovski and Bob Burton, both Michigan residents. (Pl.'s Compl. ¶ 1; Pl.'s Resp. to Order Show Cause ¶¶ 2, 3).

C. Gold Mining Agreement Choice of Forum Provision

The Agreement between the parties contains the following provision:

This Agreement will be governed and must be construed in accordance with the laws of the State of Michigan. The parties agree that this Agreement has been entered into and executed in the County of Wayne, State of Michigan, and consent to personal jurisdiction and venue to the The (sic) United States District Court for the Eastern District (sic) Michigan. The parties further agree that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation and/or enforcement of this Agreement.

(Agreement § XVIII Applicable Law, Pl.'s Compl. Ex. 1).

II. ANALYSIS

Defendants argue that neither Defendant has contacts with Michigan sufficient to establish personal jurisdiction by this Court. Plaintiff argues that the Agreement contains a valid forum selection clause.

A. Corporate Defendant Velocity

Defendant Larson initially brought this motion acting pro se on behalf of himself and Defendant Velocity. There is neither evidence nor allegation that Defendant Larson is a licensed attorney. While federal statute permits an individual to appear pro se, the provision does not extend to corporations. 28 U.S.C. § 1654 provides that "[i]n all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein."[1]

Defendant Larson lacked standing to bring this motion on behalf of Defendant Velocity. On February 24, 2015, the Court ordered Defendant Velocity to appear by counsel and ordered Defendant Larson to inform the Court in writing that he is not proceeding in pro per on behalf of Defendant Velocity. On March 13, 2015, an attorney filed an appearance on behalf of both Defendants. Defendants' counsel argued the motion on behalf of both Defendants at a ...


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