United States District Court, W.D. Washington, Seattle
Honorable Richard A. Jones United States District Judge
matter comes before the Court on Defendant Jad Dea's
(“Mr. Dea”) Motion to Dismiss Plaintiff's
Amended Complaint for Injunctive Relief (“Motion to
Dismiss”). Dkt. # 12. Plaintiff MetroPCS Georgia, LLC
(“MetroPCS”) opposes, and Mr. Dea has filed a
Reply. Dkt. ## 13, 17. For the reasons that follow, the Court
DENIES Mr. Dea's Motion.
following is taken from MetroPCS' Amended Complaint,
which is assumed to be true for the purposes of this motion
to dismiss, as well as declarations provided by both parties.
Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007);
see also Dole Food Co. v. Watts, 303 F.3d 1104, 1107
(9th Cir. 2002) (holding that in the context of a Rule
12(b)(2) motion for lack of personal jurisdiction, the court
is to take as true the allegations of the non-moving party
and resolve all factual disputes in its favor); McCarthy
v. United States, 850 F.2d 558, 560 (9th Cir. 1988)
(“Moreover, when considering a motion to dismiss
pursuant to Rule 12(b)(1) the district court is not
restricted to the face of the pleadings, but may review any
evidence, such as affidavits and testimony, to resolve
factual disputes concerning the existence of
is a Delaware LLC with its principal place of business in
Bellevue, Washington. Dkt. # 7 at ¶ 4. Defendants Metro
Dealer Inc. (“Metro Dealer”) and Mobile USA, Inc.
(“Mobile USA”) are Florida corporations, with
their principal places of business in Georgia. Id.
at ¶¶ 5, 7. Defendant Jad Dea is a citizen of
Georgia. Id. at ¶ 6.
July 2018, Metro Dealer was a MetroPCS subdealer, operating
through MetroPCS' Master Dealer, DMW GA, Inc.
(“DMW”). Dkt. # 7 at ¶ 1. In October 2017,
Metro Dealer and DMW entered into an Exclusive
Subdealer's Agreement to Comply With Dealer Agreement
(“Subdealer Agreement”), with an effective date
of October 12, 2017. Id. The Subdealer Agreement
further provided that MetroPCS was “a third-party
beneficiary” of the Subdealer Agreement, and that it
“may take any equitable or legal action required to
enforce its provisions and the terms and conditions of the
Dealer Agreement.” Id.
to the Amended Complaint, the Subdealer Agreement
specifically provided that Metro Dealer “shall comply
with all terms and conditions of the Dealer Agreement,
including but not limited to . . . the covenant not to
compete (Section 16.7).” Dkt. # 7 at 11. Paragraph 16.7
of the Dealer Agreement, which MetroPCS alleges was
incorporated into the Subdealer's Agreement, provided
that the dealer would not sell wireless services in
competition with MetroPCS or solicit, divert, or attempt to
divert MetroPCS's customers for a period of six months
following termination of its agreement, within two miles of
any of the storefronts in which it had operated as a MetroPCS
dealer. Id. at ¶ 2. Paragraph 16.7 also
provided that if the dealer “breaches this warranty and
covenant, then, in addition to any other legal or equitable
remedy that MetroPCS may have, the post-termination of this
warranty covenant will be extended for one (1) day for each
day during which the Dealer's breach was ongoing.”
Id. at ¶ 17.
Amended Complaint also alleges that Paragraph 2.4 of the
Dealer Agreement also contained a six-month non-solicitation
All customers are owned by MetroPCS and not by Dealer. During
the term of this Agreement and for a period of six (6) months
after termination of this Agreement (whether voluntary or
involuntary, with or without cause), Dealer, its principals,
owners, partners, members, shareholders, officers, directors,
employees, agents (“Affiliated Persons”) and any
entity in which an Affiliated Person owns an interest and/or
any successor entity to Dealer (“Affiliated
Entity”) shall not at any time (i) request any MetroPCS
customer to curtail or cancel its business with MetroPCS, or
(ii) otherwise solicit, divert or attempt to divert any such
MetroPCS customer from patronizing MetroPCS.
Dkt. # 7 at ¶ 17.
alleges that on or before July 2018, Metro Dealer breached
the Subdealer Agreement, prompting DMW and MetroPCS to
jointly provide a Notice of Termination of the Subdealer
Agreement for cause by letter dated July 13, 2018, effective
August 15, 2018. Dkt. # 7 at ¶ 15. Soon after
termination, MetroPCS became aware that Defendants were
selling competing wireless services from the former MetroPCS
store for Tracfone Wireless, a competitor of MetroPCS.
Id. at ¶¶ 19, 20. After receving
information from Tracfone, MetroPCS discovered that on
September 7, 2018, “Mobile USA Inc. is currently
operating in the former MetroPCS store as “a
non-exclusive, multi-brand retailer.” Id.
filed this action for injunctive relief on October 9, 2018
(Dkt. # 1), and filed an amended complaint on January 14,
2019. Dkt. # 7. MetroPCS filed a Motion for Preliminary
Injunction (Dkt. # 9), which this Court granted, and to which
Defendants did not file an opposition. Dkt. # 20. Defendant
Jad Dea, acting pro se, filed this Motion to Dismiss
on February 14, 2019, before this Court ruled on
MetroPCS' Motion for Preliminary Injunction. Dkt. # 12.
provides three apparent bases for his Motion to Dismiss,
although he only cites one subsection of Fed.R.Civ.P. 12.
First, he moves to dismiss MetroPCS' lawsuit for failure
to state a claim under Rule 12(b)(6). Dkt. # 12 at 1. Second,
Mr. Dea appears to move to dismiss due to a lack of subject
matter jurisdiction, which the Court construes as a motion to
dismiss under Rule 12(b)(1). Id. at 1-3. Third, Mr.
Dea appears to move to dismiss for lack of personal