Alexander Bykhovsky motion to dismiss, Rojas v. Bottom Line Concepts LLC, No. 2:23-cv-02667 (C.D. Cal.), Doc. 46 (Mar. 6, 2024)

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Defendant Alexander Bykhovsky's motion to dismiss plaintiff Jorge Alejandro Rojas's First Amended Complaint for lack of personal jurisdiction or, in the alternative, to strike service of process, filed March 6, 2024 as Document 46 in Rojas v. Bottom Line Concepts, LLC, Case 2:23-cv-02667-SPG-KS, in the U.S. District Court for the Central District of California. Bykhovsky, appearing pro se, moves under Federal Rule of Civil Procedure 12(b)(2). He argues that the plaintiff alleges he is not a citizen of California and alleges no personal participation in the activities at issue under the Telephone Consumer Protection Act, 47 U.S.C. § 227.

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Nase 2:23-cv-02667-SPG-KS Document 46 Filed 03/06/24 Page1iof5 Page ID #:190

Alexander Bykhovsky
Defendant Pro Se 2024 MAR - 3: 16
40 Calle Elbrus

Panama City, Panama 0801

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Plaintiff, District Judge Sherilyn Peace Garnett

Magistrate Judge Karen L. Stevenson

BOTTOM LINE CONCEPTS, LLC,
JOSHUA FOX, UNPLUGGED MEDIA,
LLC, and ALEXANDER BYKHOVSKY,

Defendants,

DEFENDANT ALEXANDER BYKHOVKY’S MOTION TO DISMISS
PLAINTIFF JORGE ALEJANDRO ROJAS’s FIRST AMENDED COMPLAINT
FOR LACK OF PERSONAL JURISDICTION OR IN THE ALTERNATIVE TO

STRIKE PLAINTIFF’S SERVICE OF PROCESS OF DEFENDANT
BYKHOVSKY

Defendant Alexander Bykhovsky (“Bykhovsky”) movies this Honorable Court to
grant his Motion to Dismiss Plaintiff's First Amended Complaint (“FAC”) pursuant to

Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. In the
alternative, Bykhovsky moves to strike Plaintiff's service of process of Defendant
Bykhovsky.

I. INTRODUCTION

Plaintiff fails to state any viable claims under the Telephone Consumer
Protection Act, (““TCPA”) 47 U.S.C. § 227, against Defendant Bykhovsky for one simple
reason: Plaintiff alleges that Bykhovsky is not a citizen of California and Plaintiff does
not allege any personal participation in the alleged activities that could conceivably allow
this court to exercise jurisdiction over Bykhovsky. This Court does not have personal
jurisdiction over Bykhovsky. Bykhovsky is a Panama resident.

If. THE ALLEGED FACTS

Plaintiff alleges he received TCPA-violating phone calls placed by Unplugged
Media, LLC. (FAC { 62). Plaintiffs allege these phone calls were prerecorded in nature
and also were received by phone numbers registered to the National Do-Not-Call
Registry.
Tl. ARGUMENT — PLAINTIFFS’ COMPLAINT FAILS TO ALLEGE

FACTS DEMONSTRATING THIS COURT HAS JURISDICTION OVER
BYKHOVSKY

A. Legal Standards Applicable to the Court’s Exercise of Personal Jurisdiction
Federal Courts may exercise personal jurisdiction over a nonresident defendant so
long as state law confers such jurisdiction, and its exercise comports with due process

under the Constitution. Due process permits the exercise of personal jurisdiction over a

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fase 2:23-cv-02667-SPG-KS Document 46 Filed 03/06/24 Page 3of5 Page ID #:192

nonresident defendant where the defendant has purposefully established “minimum
contacts” with the forum state such that maintenance of the suit does not offend
traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington,
326 U.S. 310, 316 (1945).

Under this standard, the minimum contacts of the nonresident defendant may
establish either “general” or “specific” jurisdiction. A Court has general personal
jurisdiction over a nonresident defendant “when defendant’s affiliations with the state are
so continuous and systematic as to render [the defendant] essentially at home in the
forum State.” Daimler AG v. Bauman, 571 U.S. 117, 127 (2014).

Plaintiff bears the burden of establishing a prima facie case of personal
jurisdiction. Here Plaintiff has not even attempted to make any case that this Court could
exercise jurisdiction over Defendant Bykhovsky. Plaintiff does not allege a single
sentence in their FAC that accuses Bykhovsky of having any personal involvement at all
in the alleged activities. The closest Plaintiff comes to alleging personal involvement in
the calls alleged in Plaintiff's FAC is that “Bykhovsky engaged in the operation of the
telemarketing scheme.” FAC 7 150. This threadbare accusation does not come close to
meeting the burden of establishing Defendant Bykhovsky personally participated in the
calls alleged herein.

Plaintiff does not allege any contact with the State of California by Defendant

Bykhovsky. Plaintiff does not allege any contacts with the State of California that were
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fase 2:23-cv-02667-SPG-KS Document 46 Filed 03/06/24 Page 4of5 Page ID #:193

directed by Defendant Bykhovsky. Due process permits the exercise of jurisdiction over
a defendant where the defendant has purposefully established “minimum contacts” with
the forum state. There is not a single contact with the forum state that has been alleged to
have been made by Defendant Bykhovsky in Plaintiff's FAC. There is not a single
factual allegation contained in the FAC through which Plaintiff has plausibly pled that
California can somehow exercise personal jurisdiction over Defendant Bykhovsky, a
Panama resident.
IV. BYKHOVSKY IS A PANAMA RESIDENT AND THE INTER-
AMERICAN SERVICE CONVENTION AND ADDITIONAL
PROTOCOL MANDATES HOW SERVICE OF PROCESS IS TO

QCCUR BETWEEN SIGNATORIES TO THE MULTILATERAL
TREATY

Panama is a signatory to the Inter-American Service Convention and Additional
Protocol. This is a multilateral treaty between the member nations that includes the
United States and Panama. As such, the service of process is governed by an ongoing
Treaty. This multilateral treaty outlines the ONLY (emphasis added) ways in which a
Panama resident can be served process by a party to the treaty. Plaintiff is required to file
form USM-272 Request for Service Abroad of Judicial Extrajudicial Documents Pursuant
to the Additional Protocol to the Inter-America Convention on Letters Rogatory.

Plaintiff did not follow the process that is mandated by the treaty. Instead, Plaintiff

sought relief from the Court and asked for permission to serve Defendant via email
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jase 2:23-cv-02667-SPG-KS Document 46 Filed 03/06/24 Page5of5 Page ID #:194

Email service was improper under Panamanian law and the Court did not have
authority to override the Inter-American Service Convention and Additional Protocol
treaty. There was no basis in law for the Court to grant Plaintiff's request to bypass the
treaty that governs service of process between the United States and Panama.
Furthermore, even if the Court believed it had the authority to override the treaty between
the United States and Panama, the Court must do so in a manner that is consistent with
Panamanian law. Panama does not allow the service of process via email. Therefore, the
Court could not grant Plaintiffs request to serve Defendant via email. Plaintiff
respectfully asks the Court to strike the Process of Service as it was improper and
violated the multilateral treaty that both the United States and Panama are signatories to.

Vv. CONCLUSION
For the reasons set forth above, Bykhovsky respectfully requests that the Court

grant his motion to dismiss or in the alternative strike the service of process.

.

Alexander Bykhovsky
Defendant Pro Se

40 Calle Elbrus

Panama City, Panama 0801


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