Bonia v. Ashe Ventures LLC et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Charlotte Bonia,
Plaintiff,
v.
Ashe Ventures LLC, et al.,
Defendants.
No. CV-24-03136-PHX-ASB
REPORT AND RECOMMENDATION
TO HON. STEPHEN M. MCNAMEE, SENIOR UNITED STATES DISTRICT
JUDGE:
Before the Court are (1) Motion to Dismiss Plaintiffs’ (sic) First Amended
Complaint for Lack of Personal Jurisdiction or, in the Alternative, Motion to Dismiss for
Failure to State a Claim filed by Defendants Ashe Ventures, LLC, Anne Kensok, and the
Estate of Prescott Ashe, (collectively, “Defendants”) 1 (Doc. 47) and (2) Plaintiff, Charlotte
Bonia’s, Motion to Stay or Vacate Defendants’ Illegal Repossession of Plaintiff’s Personal
Vehicle and Request for Equitable Relief (Doc. 52).
All parties to the Motions have consented to magistrate judge jurisdiction pursuant
to 28 U.S.C. § 636(c). (Doc. 27.) However, because Plaintiff included an additional
unserved Defendant, Chubb Insurance, in her First Amended Complaint (“FAC”), this
1 In the First Amended Complaint, Plaintiff also brings claims against Defendant Chubb
Corporation (“Chubb Insurance”). (See Doc. 43.) Undersigned will address the claims against
Defendant Chubb Insurance in a separate Order, because the docket shows no service on that
defendant. In this Report and Recommendation, undersigned uses the term “Defendants” to
collectively refer to the moving Defendants: Ashe Ventures, LLC, Anne Kensok, and the Estate
of Prescott Ashe.
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Court lacks full consent from all parties over the matter. See Williams v. King, 875 F.3d
500 (9th Cir. 2017).2 Therefore, pursuant to General Order 21-25 of this Court3,
undersigned submits this Report and Recommendation to Senior U.S. District Judge
Stephen M. McNamee.
For the reasons that follow, undersigned will recommend the Court grant
Defendants’ Motion to Dismiss on both grounds, for lack of personal jurisdiction and for
failure to state a claim, and the Court deny Plaintiff’s Motion.
I. BACKGROUND
This case was initiated on November 10, 2024. (Doc. 1.) At that time, Plaintiff
Charlotte Bonia and an additional plaintiff, Designs by Charlie, LLC, filed a Complaint
against Ashe Ventures, LLC (“Ashe Ventures”), the Estate of Prescott Ashe (“the Estate”),
and Anne Kensok (“Kensok”). (Id.) The Complaint included six claims against all
Defendants: Conversion, Intentional Interference with Contract, Intentional Interference
with Commercial Advantage, Intentional Infliction of Emotional Distress, Negligent
Infliction of Emotional Distress, and Unjust Enrichment. (Id.)
On March 19, 2025, the parties filed a Stipulation for Extension of Time for
Plaintiffs to file an Amended Complaint (Doc. 41). This Court accepted the Stipulation.
(Doc. 42.) Plaintiff,4 Charlotte Bonia, then filed the FAC (Doc. 43), which is the operative
2 In Williams v. King, the Ninth Circuit found that “all parties,” even unserved defendants, “must
consent for jurisdiction to vest under § 636(c)(1).” 875 F.3d at 505. When Plaintiff filed the First
Amended Complaint, Chubb Insurance became a “party” to this action. Id. at 504. Given that this
Court lacks consent from Chubb Insurance, consent to magistrate judge jurisdiction has not vested
under § 636(c). See id at 505. The Court will order below that the Clerk of Court reflect the lack
of complete consent to magistrate judge jurisdiction on the docket in this matter.
3 General Order 21-25 states in pertinent part:
When a United States Magistrate Judge to whom a civil action has been assigned
pursuant to Local Rule 3.7(a)(1) considers dismissal to be appropriate but lacks the
jurisdiction to do so under 28 U.S.C. § 636(c)(1) due to incomplete status of
election by the parties to consent or not consent to the full authority of the
Magistrate Judge,
IT IS ORDERED that the Magistrate Judge will prepare a Report and
Recommendation for the Chief United States District Judge or designee.
IT IS FURTHER ORDERED designating the following District Court Judges to
review and, if deemed suitable, to sign the order of dismissal on my behalf:
Phoenix/Prescott: Senior United States District Judge Stephen M. McNamee
4 The FAC only names one plaintiff: Charlotte Bonia. (Doc. 43.) The other, previously named
plaintiff, Designs by Charlie, LLC, is no longer pled. (See id.) Therefore, even though the Motion
to Dismiss, Response thereto, and Reply, all refer to “Plaintiffs’” FAC (see Docs. 47, 58, and 59),
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complaint in this case, on March 27, 2025.
The FAC amends the parties and claims. (Doc. 43.) In the FAC, Plaintiff again
brings claims against Defendants Ashe Ventures, Kensok, and the Estate, and also adds
another defendant, Chubb Insurance. (Id.) The FAC includes claims for: (1) Conversion;
(2) Intentional Interference with Contract regarding the contract between Plaintiff and
Prescott Ashe; (3) Intentional Interference with Contract regarding the Chubb Insurance
Contract; (4) Breach of Contract; (5) Breach of Duty of Good Faith and Fair Dealing; (6)
Unjust Enrichment; and (7) Insurance Fraud in violation of A.R.S. § 20-463. (Id. at 7-12.)
These claims all arose out of Plaintiff’s relationship with Mr. Prescott Ashe (“Mr. Ashe”),
who is now deceased. (Id. at ¶ 19.)
According to the FAC, Plaintiff and Mr. Ashe were in a romantic relationship and
entered into a Confidentiality Agreement regarding the privacy of their relationship on
August 17, 2010. (Doc. 43 at ¶¶ 15-18.) Plaintiff alleges that the Confidentiality Agreement
was in effect when Mr. Ashe died on or about July 23, 2020. (Id. at ¶¶ 19, 20.) Plaintiff
alleges that in exchange for entering into the agreement, Mr. Ashe promised to provide her
with the title to a 2010 Land Rover; create and fund Designs by Charlie, LLC; make other
cash payments to Plaintiff; and allow Plaintiff to use a Bank of America credit card. (Id. at
¶ 17.)
Plaintiff alleges Mr. Ashe never transferred the title to the Land Rover to Plaintiff.
(Doc. 43 at ¶ 23.) According to the FAC, Defendant Estate presently refuses to transfer the
title to the Land Rover to Plaintiff, and Defendants Ashe Ventures and Kensok have
attempted to repossess the Land Rover. (Id. at ¶¶ 24, 26-28.)
Plaintiff further alleges that in 2020, Mr. Ashe purchased a Mercedes G-Class SUV,
referred to in the FAC as the “G-Wagon,” for Plaintiff, “as a result of [their] ongoing
romantic relationship.” (Doc. 43 at ¶¶ 29, 30.) Although Mr. Ashe allegedly gifted the G-
Wagon to Plaintiff intending that it be owned exclusively by her, Plaintiff chose for the G-
Wagon to remain titled under Ashe Ventures, so that Mr. Ashe could directly pay the
there is only one Plaintiff currently pled. (See Doc. 43.)
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insurance and registration costs. (Id. at ¶¶ 33-36.) The G-Wagon was insured by Chubb
Insurance. (Id. at ¶ 37.)
In March 2023, Plaintiff was in a collision that resulted in damage to the G-Wagon.
(Doc. 43 at ¶¶ 38, 39.) Plaintiff allegedly informed Chubb Insurance that she wished to
repair the G-Wagon and keep it, rather than receive a payment. (Id. at ¶ 43.) However,
Defendants Ashe Ventures and Kensok requested that the insurance proceeds be paid to
Ashe Ventures, and the insurance company complied. (Id. at ¶¶ 44, 45.) Since then,
Plaintiff alleges that the G-Wagon has not been returned to her, nor has she received any
insurance payments. (Id. at ¶¶ 46, 47.)
Through the allegations in the FAC, Plaintiff claims that she has the right to own
and possess the Land Rover and the G-Wagon. (See Doc. 43.) She claims that Defendants
have infringed on her rights by failing to transfer the title to the Land Rover to her and by
directing Chubb Insurance to make an insurance payment to Defendant Ashe Ventures,
rather than allowing Plaintiff to keep the damaged G-Wagon. (See id.) Plaintiff asks the
Court to award damages, order the transfer of the title to the Land Rover to Plaintiff, and
award attorneys’ fees and pre- and post-judgment interest. (Id. at 12-13.)
After Plaintiff filed the FAC, Defendants filed their instant Motion to Dismiss (Doc.
47). Plaintiff failed to timely reply to Defendants’ Motion to Dismiss, but this Court
granted Plaintiff’s Motion for Leave to File an Out of Time Response (Docs. 55, 57).
Plaintiff then filed a Response to Defendants’ Motion to Dismiss (Doc. 58), to which
Defendants filed a Reply (Doc. 59). Plaintiff also filed a Motion to Stay or Vacate
Defendants’ Illegal Repossession of Plaintiff’s Personal Vehicle and Request for Equitable
Relief (Doc. 52). Defendants timely filed a Response in Opposition to the Motion to Stay
or Vacate (Doc. 53). Undersigned will address both Motions in turn.
II. MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
PURSUANT TO FRCP 12(b)(2)
Defendants first move the Court to dismiss the counts against them in the FAC
because Plaintiff has failed to establish that this Court has general or specific personal
jurisdiction over them. (Doc. 47 at 4-10.) Plaintiff opposes the request. (Doc. 58.)
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A. Legal Standard
A defendant may move to dismiss a case for lack of personal jurisdiction under
Federal Rule of Civil Procedure 12(b)(2). When faced with a motion to dismiss for lack of
personal jurisdiction, “the plaintiff bears the burden of establishing that jurisdiction is
proper” but “need only make a prima facie showing of jurisdictional facts[.]” Ranza v.
Nike, Inc., 793 F.3d 1059, 1068 (9th Cir. 2015) (citations omitted). In determining whether
a plaintiff has established a prima facie case for personal jurisdiction over a defendant, the
complaint’s uncontroverted allegations are accepted as true and “conflicts between the
facts contained in the parties’ affidavits must be resolved in [plaintiff’s] favor.” Am. Tel.
& Tel. Co. v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996). “We only
inquire into whether [the plaintiff’s] pleadings and affidavits make a prima facie showing
of personal jurisdiction.” Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800
(9th Cir. 2004) (quoting Caruth v. International Psychoanalytical Ass’n, 59 F.3d 126, 128
(9th Cir. 1995)). If a court looks to evidence outside the pleadings to resolve the motion, it
must convert the motion to dismiss to a Rule 56 motion for summary judgment. United
States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003) (citations omitted). “A court may,
however, consider certain materials—documents attached to the complaint, documents
incorporated by reference in the complaint, or matters of judicial notice—without
converting the motion to dismiss to a motion for summary judgment.” Id. (citing Van
Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002); Barron v. Reich,
13 F.3d 1370, 1377 (9th Cir. 1994)). “[Courts] may take judicial notice of court filings and
other matters of public record.” Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741,
746 n.6 (9th Cir. 2006) (citations omitted). A court may take judicial notice on its own
accord, or must take judicial notice if a party requests it, and the court is supplied with the
necessary information. Fed. R. Evid. 201.
“Where, as here, there is no applicable federal statute governing personal
jurisdiction, the district court applies the law of the state in which the district court sits.”
Schwarzenegger, 374 F.3d at 800 (citations omitted). “The Arizona long-arm statute
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provides for personal jurisdiction co-extensive with the limits of federal due process.” Doe
v. Am. Nat’l Red Cross, 121 F.3d 1048, 1050 (9th Cir. 1997) (citing Batton v. Tennessee
Farmers Mut. Ins. Co., 736 P.2d 2, 4 (Ariz. 1987)).; see Ariz. R. Civ. P. 4.2(a). Therefore,
“the jurisdictional analyses under state law and federal due process are the same.”
Schwarzenegger, 374 F.3d at 800-801 (citations omitted).
Due process requires that a defendant “have certain minimum contacts with [the
forum state] such that the maintenance of the suit does not offend traditional notices of fair
play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)
(quotations and citations omitted). There are two ways to establish personal jurisdiction:
general jurisdiction and specific jurisdiction. Ranza, 793 F.3d at 1068 (citing Daimler AG
v. Bauman, 571 U.S. 117, 127 (2014)).
B. Analysis
Plaintiff asserts that this Court has personal jurisdiction over Defendants. (Doc. 43
at ¶ 10.) In the FAC, Plaintiff alleges that Defendant Ashe Ventures “is a company that
was solely owned by the deceased, Mr. Prescott Ashe and was located and doing business
in the State of California.” (Id. at ¶ 2.) Plaintiff also states that “Defendant The Estate of
Prescott Ashe, is on information and belief, located and managing the Estate in the City of
San Francisco, County of San Francisco, in the state of California, together with its
Personal Representative(s), Trustee(s), attorney(s), agent(s), and employee(s), who, upon
information and belief, are now, and at all times mentioned herein were . . . residing in the
City of San Francisco, County of San Francisco, in the State of California.” (Id. at ¶ 3.)
Plaintiff alleges that Defendant Kensok is “the current CFO for Ashe Ventures LLC” and
“is also located and doing business in San Francisco, California.” (Id. at ¶ 4.) Plaintiff states
that there is personal jurisdiction over Defendants because “Defendants each reached out
and availed themselves of the benefits and protections of Arizona in a meaningful manner,
causing damages by their tortious actions committed and causing damage in Arizona, and
unlawfully converting Arizona personal property of Plaintiff sufficient for the Court to find
specific jurisdiction.” (Id. at ¶ 10.) Plaintiff also alleges that Mr. Ashe himself “spent a
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substantial amount of time in Arizona, making unkept promises in Arizona.” (Id.)
In their Motion to Dismiss, Defendants argue that the FAC does not include any
specific facts to show that this Court has personal jurisdiction over Defendants. (Doc. 47.)
As to general jurisdiction, Defendants argue that none of them have “continuous and
systematic contacts” in Arizona. (Id. at 6.) Instead, Defendants assert that they are all “at
home” in California, and that Plaintiff has even asserted that a California state court has
jurisdiction over Defendants in previous filings. (Id.) Plaintiff did, in fact, assert that
jurisdiction was proper over Defendants in the San Francisco County Superior Court of
California. (Doc. 35-1 at 29.)5 Regarding specific jurisdiction, Defendants argue that they
did not purposefully avail themselves of the privilege of conducting business in Arizona or
direct activities toward Arizona. (Doc. 47 at 6-8.) They also assert that the clams do not
arise from any of Defendants’ contacts with the forum state. (Id. at 9.) Finally, they assert
that the exercise of personal jurisdiction would be unreasonable. (Id. at 9-11.)
Plaintiff lastly argues in her Response to Defendants’ Motion to Dismiss that
“[f]ederal diversity jurisdiction does not require that any Defendant is incorporated or
domiciled in the forum state.” (Doc. 58 at 7.) Federal diversity jurisdiction gives federal
district courts original subject matter jurisdiction over civil actions where the amount in
controversy is over $75,000 and the matter is between citizens of different states. 28 U.S.C.
§ 1332 (emphasis added). Personal jurisdiction requirements derive from the Due Process
Clause of the Fourteenth Amendment of the U.S. Constitution, where a defendant must
have “certain minimum contacts with [the state] such that the maintenance of the suit does
not offend traditional notions of fair play and substantial justice.” Goodyear, 564 U.S. at
923 (2011) (quoting Int’l Shoe Co., 326 U.S. at 316 (internal quotations omitted)); see
United States v. Morton, 467 U.S. 822, 828 (1984) (“[s]ubject-matter jurisdiction defines
the court’s authority to hear a given type of case, whereas personal jurisdiction protects the
5 Pursuant to its authority under Rule 201 of the Federal Rules of Evidence, the Court takes judicial
notice of the Amended Complaint filed by Charlotte Bonia in San Francisco County Superior
Court of California, Case No. CGC-21-593979. (Doc. 35-1 at 26-51.) The document is a court
filing that “can be accurately and readily determined from sources whose accuracy cannot be
reasonably questioned.” Fed. R. Evid. 201(b)(2).
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individual interest that is implicated when a nonresident defendant is haled into a distant
and possibly inconvenient forum.”) (citations omitted). Plaintiff appears to be conflating
personal jurisdiction with subject matter jurisdiction; the two are separate and necessary
requirements to establish a federal court’s jurisdiction over a matter. (See Doc. 58 at 7);
see Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701 (1982)
(“The validity of an order of a federal court depends upon that court’s having jurisdiction
over both the subject matter and the parties”) (citations omitted). Thus, the Court will
assess whether it has personal jurisdiction over Defendants.
1. General Personal Jurisdiction
First, undersigned considers whether there is general personal jurisdiction over each
of Defendants.6 For general personal jurisdiction to exist, a defendant’s contacts must be
so systematic and continuous as to render it “essentially at home” in the forum. Goodyear
Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (citing Int’l Shoe Co.,
326 U.S. at 317). An individual is considered at home in the state where they are domiciled.
Id. at 924. “A corporation is at home in its place of incorporation and principal place of
business, and in an exceptional case a corporation might also be at home elsewhere.”
Yamashita v. LG Chem, Ltd., 62 F.4th 496, 503 (9th Cir. 2023) (citations omitted). When
a court has general personal jurisdiction over a defendant, it may “hear any and all claims
against them.” Goodyear, 564 U.S. at 919 (citing Int’l Shoe Co., 326 U.S. at 317).
Undersigned analyzes the general personal jurisdiction regarding each separate moving
Defendant.
a. Ashe Ventures, LLC
Plaintiff alleges that Defendant Ashe Ventures “was located and doing business in
the State of California.” (Doc. 43 at ¶ 2.) Defendants assert that Ashe Ventures is a limited
liability company incorporated in Delaware with its principal place of business in
California. (Doc. 47 at 5-6.) Plaintiff does not allege any further facts in her FAC to indicate
that Defendant Ashe Ventures has connections to Arizona. (See Doc. 43.) While Plaintiff
6Again, the Court’s analysis is focused on the moving Defendants. (See Doc. 47.) The issue of
personal jurisdiction over Defendant Chubb Insurance is not before the Court. (See id.)
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argues that Ashe Ventures did not “exclusively do business in California” and that
“Prescott Ashe, as CEO of Ashe Ventures, clearly did conduct business on behalf of Ashe
Ventures in Arizona,” Plaintiff fails to allege any facts in her FAC to support this
contention. (Doc. 58 at 3, 6.) Plaintiff instead argues in her Response to Defendants’
Motion to Dismiss that Mr. Ashe, CEO of Ashe Ventures, purchased land, residence, and
vehicles in the Arizona and “enter[ed] into those contracts . . . as CEO of Ashe Ventures .
. . .” (Doc. 58 at 6.) Given that a district court analyzing jurisdiction on written materials
will “only inquire into whether [the plaintiff’s] pleadings and affidavits make a prima facie
showing of personal jurisdiction,” these alleged facts in Plaintiff’s Response Memorandum
are insufficient to support jurisdictional grounds. See Schwarzenegger, 374 F.3d at 800
(quoting Caruth v. Intl. Psychoanalytical Ass’n, 59 F.3d 126, 128 (9th Cir. 1995)). Because
Defendant Ashe Ventures is not incorporated in Arizona or have its principal place of
business in Arizona, and because there are no “exceptional circumstances” indicating that
it is “at home” in Arizona, this Court does not have general personal jurisdiction over
Defendant Ashe Ventures. See Yamashita, 62 F.4th at 503.
b. Anne Kensok
Next, Plaintiff alleges that Defendant Kensok, who is the chief financial officer of
Ashe Ventures, “is located and doing business in San Francisco, California.” (Doc. 43 at ¶
4.) Again, neither party claims Defendant Kensok is “at home” in Arizona. (See Docs. 43,
47.) Because Plaintiff has not alleged facts in her FAC to show that Defendant Kensok is
domiciled in Arizona, she has not shown that there is general personal jurisdiction over
Kensok. See Goodyear, 564 U.S. at 924.
c. Estate of Prescott Ashe
The same analysis applies for Defendant Estate. Plaintiff alleges the Estate is based
in California, as the personal representative(s), employee(s), and any other agents of the
Estate reside in California. (Doc. 43 at ¶ 3.) Defendants assert that “[t]he Estate . . . has
never been based in Arizona and does not possess any property or assets in Arizona.” (Doc.
47 at 6.) Plaintiff has not provided any facts in her FAC indicating that the Estate is “at
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home” in Arizona.7 (See Doc. 43.) Therefore, the Court does not have general personal
jurisdiction over the Estate.
d. Conclusion as to General Personal Jurisdiction
Because Plaintiff has not pled sufficient facts to establish that any of the moving
Defendants are “essentially at home” in the forum, undersigned determines that it there is
no general personal jurisdiction over Defendants. See Goodyear, 564 U.S. at 919.
2. Specific Personal Jurisdiction
Having concluded that it lacks general personal jurisdiction, undersigned next
assesses whether there is specific personal jurisdiction over Defendants. In contrast to
general jurisdiction, “[s]pecific jurisdiction exists when a case arises out of or relates to the
defendant’s contacts with the forum.” Ranza, 793 F.3d at 1068 (quotations and citations
omitted). To assess specific personal jurisdiction, courts use a three-prong test:
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 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.
Schwarzenegger, 374 F.3d at 802 (citing Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir.
1987)). “If the plaintiff succeeds in satisfying both of the first two prongs, the burden then
shifts to the defendant to present a compelling case that the exercise of jurisdiction would
not be reasonable.” Id. (quotations and citations omitted).
The first prong of the minimum contacts test may be shown in different ways
depending on the nature of the claim. In a contract case, “[a] showing that a defendant
purposefully availed himself of the privilege of doing business in a forum state typically
consists of evidence of the defendant’s actions in the forum, such as executing or
7 Rather, her focus appears to be on the acts of Mr. Ashe, when he was alive, that go towards
specific personal jurisdiction. (See Docs. 43, 58.) Undersigned will discuss that infra Section
II.B.2.b.
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performing a contract there.” Schwarzenegger, 374 F.3d at 802. “[P]rior negotiations and
contemplated future consequences, along with the terms of the contract and the parties’
actual course of dealing . . . must be evaluated in determining whether the defendant
purposefully established minimum contacts with the forum.” Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 479 (1985). In a tort case, plaintiffs must establish purposeful
direction by showing that the defendant “(1) committed an intentional act, (2) expressly
aimed at the forum state, (3) causing harm that the defendant [knew was] likely to be
suffered in the forum state.” Davis v. Cranfield Aerospace Sols., Ltd., 71 F.4th 1154, 1162-
63 (9th Cir. 2023) (citations omitted).
a. Defendants Ashe Ventures and Kensok
Under the first prong, the Court considers whether Plaintiff has alleged sufficient
facts to show purposeful availment. See Schwarzenegger, 374 F.3d at 802. Plaintiff does
not allege that Defendants Ashe Ventures or Kensok executed or performed a contract in
Arizona. (See Doc. 43); see Schwarzenegger, 374 F.3d at 802. Plaintiff only alleges that
“[Mr.] Ashe and Bonia entered into a Confidentiality Agreement on or about August 17,
2010.” (Doc. 43 at ¶ 18.) In addition, the FAC alleges that Mr. Ashe purchased two vehicles
for Plaintiff, both titled in the name of Ashe Ventures. (Id. at ¶¶ 17, 23, 32, 36.) The facts
alleged indicate the G-Wagon was insured by Chubb Insurance, and that after the vehicle
was damaged, Defendants Ashe Ventures and Kensok directed the insurance company to
pay the proceeds to Ashe Ventures. (Id. at ¶¶ 37, 45.) Plaintiff also alleges that Defendants
Ashe Ventures and Kensok have sent others to attempt to repossess the Land Rover. (Id. at
¶¶ 27, 28.)
These actions, although related to Plaintiff’s alleged ownership of the vehicles, do
not amount to purposeful availment because they do not show that these Defendants
entered into a contract with Plaintiff in Arizona (or anywhere else), much less engaged in
negotiations, agreed to terms, or contemplated future consequences evidencing a
substantial connection with the state. See Burger King Corp., 471 U.S. at 479. They also
do not show that these Defendants committed an intentional act aimed at the forum state.
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See Davis, 71 F.4th at 1162-63. Because the first prong is not met as to Defendants Ashe
Ventures or Kensok, the Court need not reach the remaining prongs. Schwarzenegger, 374
F.3d at 802 (“If the plaintiff fails to satisfy either of these [first two prongs], personal
jurisdiction is not established in the forum state.”). Consequently, the Court lacks specific
jurisdiction over Defendants Ashe Ventures and Kensok.
b. Defendant Estate of Prescott Ashe
The Court next considers whether there are sufficient facts pled in the FAC to
establish specific jurisdiction over the Estate, which it may do by determining if it could
have exercised that same jurisdiction over the decedent, Mr. Ashe. (See Doc. 43.) “A
[c]ourt may exercise personal jurisdiction over the representatives of an estate if it could
have done so over the decedent.” Silk v. Bond, 65 F.4th 445, 457 n.15 (9th Cir. 2023)8
(citation omitted).
The Court first considers whether Plaintiff has established the first prong of specific
personal jurisdiction, purposeful availment. See Schwarzenegger, 374 F.3d at 802. Plaintiff
alleges that Mr. Ashe entered into a Confidentiality Agreement with her in 2010 and,
pursuant to the Agreement, purchased a Land Rover for her use. (Doc. 43 at ¶¶ 17, 18.)
Ten years later, Mr. Ashe allegedly purchased the G-Wagon for Plaintiff, which was
delivered to her before his death. (Id. at ¶¶ 29-34.) In addition, he allegedly took out an
insurance policy on the G-Wagon with Chubb Insurance. (Id. at ¶¶ 36, 37.) Plaintiff alleges
that Mr. Ashe “spent a substantial amount of time in Arizona, making unkept promises in
Arizona.” (Id. at ¶ 10.) Physical entry into the forum state may certainly be “relevant
contact.” Walden v. Fiore, 571 U.S. 277, 285 (2014) (citation omitted). And although
Plaintiff does not specifically allege where the contract was executed, where the vehicles
8 In Silk v. Bond, the Ninth Circuit considered whether an estate had sufficient minimum contacts
with California such that the District Court (located in the Central District of California) had
personal jurisdiction over the estate. 65 F.4th at 448-459. In analyzing the court’s jurisdictional
reach, the Ninth Circuit found that “California’s long-arm statute allows the exercise of personal
jurisdiction to the full extent permissible under the U.S. Constitution.” Id. at 456. Similarly,
“Arizona permits the exercise of personal jurisdiction to the extent permitted under the United
States Constitution.” Morrill v. Scott Fin. Corp., 873 F.3d 1136, 1141 (9th Cir. 2017) (citing Ariz.
R. Civ. P. 4.2(a)). Thus, it is appropriate for this Court to analyze whether it has personal
jurisdiction over decedent, Mr. Ashe, when considering whether it has personal jurisdiction over
Mr. Ashe’s Estate. See Silk, 65 F.4th at 457 n.15.
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were purchased, or describe where any negotiations took place, it appears Plaintiff alleges
that Mr. Ashe agreed to purchase vehicles for Plaintiff to use in Arizona and to make
payments for her use in Arizona. (See Doc. 43.) These transactions likely led Mr. Ashe to
contemplate future consequences in Arizona. See Roth v. Garcia Marquez, 942 F.2d 617,
622 (9th Cir. 1991) (finding purposeful availment where “the contract’s subject would have
continuing and extensive involvement with the forum”). Although it is a close call, these
facts are sufficient to establish purposeful availment.
The second prong is whether the claims arise out of or relate to the defendant’s
contacts in the forum state. Schwarzenegger, 374 F.3d at 802. Plaintiff’s claims do arise
out of or relate to Mr. Ashe’s contacts in Arizona. See Mattel, Inc. v. Greiner and Hausser
GmbH, 354 F.3d 857, 864 (9th Cir. 2003) (explaining the “but for test” to determine
whether the claims arise out of or relate to a defendant’s activities in the forum). Indeed,
but for Mr. Ashe’s alleged agreement with Plaintiff and the resulting, alleged purchases of
the vehicles and insurance policy, there would be no basis for the FAC’s claims. (See Doc.
43.) Thus, the second prong is met.
Under the third and final prong, Defendant must show that the exercise of
jurisdiction would not be reasonable. Schwarzenegger, 374 F.3d at 802. To determine
reasonableness, the Court balances the following non-dispositive factors: “1) the extent of
the defendant’s purposeful interjection into the forum state’s affairs; 2) the burden on the
defendant; 3) conflicts of law between the forum and defendant’s home jurisdiction; 4) the
forum’s interest in adjudicating the dispute; 5) the most efficient judicial resolution of the
dispute; 6) the plaintiff’s interest in convenient and effective relief; and 7) the existence of
an alternative forum.” Roth, 942 F.2d at 623 (citations omitted).
The first factor, the extent of Defendant’s interjection, weighs in favor of Plaintiff
for the same reasons that this Court found that there is purposeful availment. Importantly,
Plaintiff asserts that Mr. Ashe spent a “substantial amount of time” in the forum state. (Doc.
43 at ¶ 10.) The second factor, the burden on Defendant, weighs toward Defendant, because
it would be less burdensome to litigate in Defendant’s home state of California, rather than
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Arizona. The third factor, conflicts of law between the forum state and the defendant’s
home state, is neutral, as neither party has raised this issue with the Court. (See Docs. 47,
58, 59.) The fourth factor, the forum state’s interest in the dispute, is also neutral. Of course,
Arizona has an interest in its residents’ pursuit of their legal claims. See Corporate Inv.
Bus. Brokers v. Melcher, 824 F.2d 786, 791 (9th Cir. 1987) (“Arizona’s interest in
providing effective redress . . . supports the reasonableness of jurisdiction in Arizona.”).
But Arizona also has an interest in its residents’ right to contract. See Aries v. Palmer
Johnson, Inc., 735 P.2d 1373 (Ariz. Ct. App. 1987) (finding that Arizona had an interest
both in enforcing contracts entered into in Arizona and protecting its residents from
contractual fraud from out-of-state businesses who enter into contracts with Arizona
residents). And here, as Defendant correctly notes, Plaintiff elected to enter into a
Confidentiality Agreement that contains a forum selection clause requiring binding
arbitration in San Francisco, California. (Doc. 47 at 10 (citing Original Compl., Exh. A).)
The existence of a forum selection clause in the Confidentiality Agreement would
inherently undermine Arizona’s interest in enforcing the contract.9 See generally
Corporate Inv. Bus. Brokers, 824 F.2d at 791. Given these competing interests, this factor
is neutral.
The fifth factor, efficient judicial resolution of the dispute, weighs toward
Defendant. As Defendants explain, litigation between the parties has been ongoing for
several years in different courts. (Doc. 47 at 4.) Plaintiff first sued the Estate in California
Superior Court, and while that lawsuit was still pending, sued Ashe Ventures in Arizona
Superior Court. (Id.) Plaintiff then filed an additional case in Arizona Superior Court. (Id.)
This history highlights the inefficiency of this lawsuit, especially considering that there is
no general personal jurisdiction over Defendants here. See discussion supra Section II.B.1.
Thus, the fifth factor weighs toward Defendant Estate. For similar reasons, the sixth factor,
convenience and effectiveness of relief for Plaintiff, weighs towards Defendant. Although
it is surely more convenient for Plaintiff to litigate in her home state, Plaintiff has already
9 This Court does not comment on the enforceability of the forum selection clause appearing in the
Confidentiality Agreement, as the issue is not before this Court. (See Docs. 47, 58, 59.)
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initiated a related lawsuit in California. (See Doc. 47 at 3 (citing Doc. 35-1 at 80-83).)
Furthermore, “neither the Supreme Court nor [the Ninth Circuit] has given much weight to
inconvenience to the plaintiff.” Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1490
(9th Cir. 1993). Therefore, undersigned finds that the sixth factor weighs towards
Defendant. The final factor, availability of an alternate forum, weighs toward Defendant
because Plaintiff could have continued litigation in California.10 Undersigned has already
detailed Defendant’s connections to California and Plaintiff’s lawsuit there. See supra
Section II.B. Moreover, Plaintiff has not shown that she could not litigate in California.
See Roth, 942 F.2d at 624-25 (“[T]he plaintiff bears the burden of proving the
unavailability of an alternative forum.”) (citations omitted).
On balance, the factors weigh in favor of Defendant. Even though Mr. Ashe
purposefully availed himself of the laws and protections of Arizona and Plaintiff’s claims
arise from or relate to his contacts in Arizona, the exercise of jurisdiction is not reasonable.
Undersigned finds that Defendant Estate of Prescott Ashe has presented a compelling case
that the exercise of jurisdiction would be unreasonable given the burden on it to litigate in
Arizona, that Plaintiff filed suit in California indicating litigation is appropriate in
California, and the inefficiency of the present action generally. (See Doc. 47); see Roth,
942 F.2d at 625 (holding that, once purposeful availment has been established, a defendant
must present a “compelling case” that exercise of jurisdiction would be unreasonable)
(citations omitted). Therefore, the Court does not have specific personal jurisdiction over
Defendant Estate.
C. Conclusion as to Personal Jurisdiction and Leave to Amend
For the foregoing reasons, undersigned concludes that it lacks personal jurisdiction
over the moving Defendants.
10 While Plaintiff argues that “the Arizona District Court system is the only viable forum for
Plaintiffs to obtain justice,” Plaintiff has provided no facts to support this argument. (Doc. 58 at
9.) On the record before the Court, it appears that Plaintiff’s Complaint in Superior Court of the
State of California was dismissed due to Plaintiff’s failure to file an amended complaint within the
time allowed by the Superior Court. (Doc. 35-1 at 80-81.) The dismissal order in that case does
not state the dismissal was with prejudice. (Id.) Plaintiff does not provide any facts to indicate or
otherwise allege in her FAC that she is unable to bring this action in California. (See Docs. 43,
58.)
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Plaintiff requests in her Response that this Court, should it find deficiencies in
Plaintiff’s FAC, “grant[] Plaintiff leave to file a Second Amended Complaint.” (Doc. 58 at
17.) While Plaintiff does not specifically request leave on the issue of personal jurisdiction,
a district court “should grant leave to amend even if no request to amend the pleading was
made, unless it determines that the pleading could not possibly be cured by the allegation
of other facts.” Beauchamp v. Flaherty, No. CV-24-01160-PHX-DWL, 2024 WL 4475089,
at *2 (D. Ariz. Oct. 11, 2024) (quoting Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection
Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990)).
Rule 15 directs that courts should grant leave to amend freely, when justice so
requires. Fed. R. Civ. P. 15; Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048 (9th Cir.
2003). Some courts in the Ninth Circuit have granted leave to amend for lack of personal
jurisdiction “when sufficient facts may exist to establish personal jurisdiction.” Discovery
Land Co. LLC v. Discovery Glob. LLC, No. CV-20-01940-PHX-MTL, 2021 WL 148641,
at *6 (D. Ariz. Jan. 15, 2021) (finding that plaintiff may be able to allege a basis for
personal jurisdiction, in part, because plaintiff has not previously amended complaint)
(citing Regal Art & Gifts, Inc. v. Fusion Prod., Ltd., No. 15-CV-04363-KAW, 2016 WL
454116, at *8 (N.D. Cal. Feb. 5, 2016)). Others have found that “lack of personal
jurisdiction, pursuant to Rule 12(b)(2), ‘is not curable by amendment.’” Stuckey v. Leath,
No. CV-18-03213-PHX-JAT, 2019 WL 1558079, at *7 (D. Ariz. Apr. 10, 2019) (denying
leave to amend for lack of personal jurisdiction but dismissing without prejudice) (citing
Wild W. Guns, LLC v. Superior Ammunition, Inc., No. 3:18-CV-00043 JWS, 2019 WL
885915, at *1 (D. Alaska Feb. 23, 2019)). “A dismissal for lack of personal jurisdiction
does not adjudicate the merits and so should be without prejudice.” Cox v. CoinMarketCap
OPCO, LLC, 112 F.4th 822, 836 (9th Cir. 2024) (reversing district court’s dismissal with
prejudice where there was no personal jurisdiction) (citations omitted).
Given that Plaintiff has not pled sufficient facts in her FAC to demonstrate, and has
not argued any ability to allege, that this Court has personal jurisdiction over Defendants,
undersigned would recommend the FAC be dismissed as to Defendants Ashe Ventures,
LLC, Anne Kensok, and the Estate of Prescott Ashe without prejudice and without leave
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to amend. (See Docs. 43, 58); see Stuckey, 2019 WL 1558079, at *7; see Cox, 112 F.4th at
836. Undersigned next considers the alternative ground in Defendants’ Motion to Dismiss.
III. MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
PURSUANT TO FRCP 12(b)(6)
In their Motion, Defendants also argue that the Court should dismiss the claims filed
against them in the FAC because Plaintiff failed to state a claim upon which relief can be
granted. (Doc. 47 at 11-17.) The FAC includes the following claims against the moving
Defendants: Conversion, two counts of Intentional Interference with Contract, Unjust
Enrichment, and Insurance Fraud. (Doc. 43.)
A. Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a
complaint for “failure to state a claim upon which relief can be granted.” To survive a Rule
12(b)(6) motion, a complaint must meet the requirements of Federal Rule of Civil
Procedure 8(a)(2). Rule 8(a)(2) requires “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means that “a party must
allege sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face.” In re Fitness Holdings Int’l, Inc., 714 F.3d 1141, 1144 (9th Cir. 2013)
(citations and quotations omitted). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing
Twombly, 550 U.S. at 555). A motion to dismiss may also be granted “where there is . . . a
lack of a cognizable legal theory.” Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir.
2015) (citations omitted). When considering a 12(b)(6) motion, “all allegations of material
fact are taken as true and construed in the light most favorable to the nonmoving party.”
Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009) (quoting Silvas v. E*Trade
Mortgage Corp., 514 F.3d 1001, 1003 (9th Cir. 2008)).
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B. Analysis
Because the moving Defendants attack the sufficiency of each claim asserted against
them in the FAC, undersigned will consider each claim to determine whether Plaintiff has
met the Rule 8 requirements. (See Doc. 47); see Fed. R. Civ. P. 8(a)(2).
1. Count One: Conversion
In Count One of the FAC, Plaintiff alleges that Defendants wrongfully interfered
with her rights to own and possess the G-Wagon and to the proceeds from the insurance
policy on the G-Wagon. (Doc. 43 at ¶¶ 49-51.) Under Arizona law, conversion is defined
as “an act of wrongful dominion or control over personal property in denial of or
inconsistent with the rights of another.” Case Corp. v. Gehrke, 91 P.3d 362, 365 (Ariz. Ct.
App. 2004) (quoting Sears Consumer Fin. Corp. v. Thunderbird Prods., 802 P.2d 1032,
1034 (Ariz. Ct. App. 1990). “To maintain an action for conversion, a plaintiff must have
had the right to immediate possession of the personal property at the time of the alleged
conversion.” Id. (citations omitted). Arizona courts have distinguished an “owner” of a
vehicle, who is “vested with an immediate right of possession,” from a “permissive user,”
who lacks vested rights. Childress Buick Co. v. O’Connell, 11 P.3d 413, 417 (Ariz. Ct.
App. 2000); A.R.S. § 28-101(61). “A conversion claim cannot be maintained to collect on
a debt that could be satisfied by money generally, but money can be the subject of a
conversion claim if the money can be described, identified or segregated, and an obligation
to treat it in a specific manner is established.” Hannibal-Fisher v. Grand Canyon Univ.,
523 F. Supp. 3d 1087, 1098 (D. Ariz. 2021) (internal quotations and citations omitted).
Defendants argue that Plaintiff has failed to state a claim for conversion of the
insurance proceeds because she was not listed as a beneficiary of the policy, and under
Arizona law, money can only be the subject of conversion if an obligation to treat the
money in a certain manner is established. (Doc. 47 at 11.) Defendants also argue that
Plaintiff has failed to properly plead a claim for conversion of the G-Wagon itself because
it was titled in the name of Defendant Ashe Ventures, not Plaintiff. (Id. at 12-13.)
Moreover, they assert that any claim of conversion of the vehicle is time-barred. (Id. at 13.)
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In Count One, Plaintiff alleges that she “is the rightful owner of the G-Wagon along [with]
any attending insurance proceeds paid by Chubb Insurance.” (Doc. 43 at ¶ 49.) But another
allegation in the FAC, which was incorporated by reference, states that Plaintiff “elected
to keep title to the G-Wagon in Ashe Ventures, LLC’s name as it allowed [Mr.] Ashe to
pay for insurance and registration.” (Id. at ¶ 36.) Plaintiff states that “[t]he G-Wagon was
conveyed to Plaintiff Bonia by collateral agreement to the original contract” but fails to
plead or otherwise demonstrate the existence of a collateral agreement giving Plaintiff
rights to the G-Wagon. (Doc. 58 at 11.)
The facts pled in the FAC, taken as true, see Iqbal, 556 U.S. at 678, do not allow
the court to reasonably infer that Plaintiff had the right to immediate possession of the G-
Wagon at the time of the alleged conversion. See Case Corp., 91 P.3d at 365. Instead, these
facts indicate that Plaintiff was a permissive user of the vehicle, rather than one vested with
a right to possession. See Childress Buick Co., 11 P.3d at 417-418 (finding that the
purchaser of a car whose subsequent financing was denied was not an “owner,” despite
having possession of the vehicle, and was instead a permissive user who was not entitled
to insurance proceeds from an accident). Because Plaintiff has affirmatively pled that
Defendant Ashe Ventures held title to the G-Wagon (Doc. 43 at ¶ 36), she has not stated a
claim for conversion that is plausible on its face.
The same is true for the claim over the insurance proceeds. Plaintiff’s claim to the
proceeds is rooted in her purported rights to the vehicle. (See Doc 43.) Though Plaintiff
alleges that she is “a claimant and insured person under the policy,” that fact, taken as true,
see Iqbal, 556 U.S. at 678, still does not plausibly show that she is entitled to the insurance
proceeds. (Id. at ¶ 43). Plaintiff has not shown that Defendants had “an obligation to treat
[the insurance proceeds] in a specific manner.” See Hannibal-Fisher, 523 F. Supp. 3d at
1098 (internal quotations and citations omitted). Plaintiff has thus not stated a claim upon
which relief can be granted in Count One for either conversion of the vehicle or the
insurance proceeds from the vehicle. Therefore, undersigned will recommend this claim be
dismissed under Rule 12(b)(6).
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2. Counts Two and Three: Intentional Interference with Contract
In Counts Two and Three, Plaintiff brings claims for Intentional Interference with
Contract against Defendants. (Doc. 43 at ¶¶ 52-65.) Count Two surrounds the agreement
between Plaintiff and Mr. Ashe, and Count Three concerns the Chubb Insurance policy.
(Id.)
To demonstrate the tort of intentional interference with a contract, plaintiffs must
prove: “(1) existence of a valid contractual relationship, (2) knowledge of the relationship
on the party of the interferor, (3) intentional interference inducing or causing a breach, (4)
resultant damage to the party whose relationship has been disrupted, and (5) that the
defendant acted improperly.” Safeway Ins. Co., Inc. v. Guerrero, 106 P.3d 1020, 1025
(Ariz. 2005) (citations omitted). A third-party beneficiary to a contract is recognized under
Arizona law “only when the contracting parties intended to directly benefit that person and
. . . indicate that intention in the contract itself.” Armbruster v. WageWorks, Inc., 953 F.
Supp. 2d 1072, 1076 (D. Ariz. 2013) (citing Sherman v. First Am. Title Ins. Co., 38 P.3d
1229, 1232 (Ariz. Ct. App. 2002) (quotations omitted). Finally, claims for intentional
interference with contract are subject to a two-year statute of limitations. Clark v.
Airesearch Mfg. Co. of Arizona, Inc., a Div. of Garrett Corp., 673 P.2d 984, 987 (Ariz. Ct.
App. 1983) (“We also agree with [defendant] that the two year statute of limitations in
A.R.S. § 12-542 governs claims for wrongful interference with contract”).
a. Count Two
In Count Two, Plaintiff alleges that Defendants interfered with the Confidentiality
Agreement by refusing to give her title to the Land Rover. (Doc. 43 at ¶¶ 52-57.) Plaintiff
alleges that the Confidentiality Agreement between she and Mr. Ashe constituted a binding
agreement, and that Defendants were aware of this agreement. (Id. at ¶¶ 53, 54.) Further,
Plaintiff alleges that Defendants refused to transfer the title of the Land Rover to her, in
violation of the agreement. (Id. at ¶¶ 55, 56.) The FAC also alleges that Defendants Ashe
Ventures and Kensok have employed others to attempt to repossess the Land Rover. (Id. at
¶ 27.) Defendants argue that this Claim fails as to Defendant Estate because the Agreement
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was not in effect at the time the Estate came into existence. (Doc. 47 at 14-15.) Undersigned
agrees that there are not sufficient facts to show that the Estate interfered with the
Confidentiality Agreement.
Plaintiff has not pled any facts to indicate that there was an “intentional interference
inducing or causing a breach.” See Safeway Ins. Co., Inc., 106 P.3d at 1025. Rather,
Plaintiff has plainly alleged that, during Mr. Ashe’s life, he did not transfer title to the 2010
Land Rover and that, following his death, his Estate has not transferred title to the 2010
Land Rover. (Doc. 43 at ¶¶ 23-24.) While Mr. Ashe may have breached his contractual
rights to Plaintiff during his life, an allegation to which undersigned does not opine,11 it
cannot be said that Defendants, including the Estate, Ashe Ventures, or Anne Kensok,
interfered with the contract. Undersigned agrees with the Estate Defendant that “[t]he
Estate of Prescott Ashe, which did not exist until Decedent’s death, could not possibly have
caused or induced the decedent to breach the 2010 Confidentiality Agreement.” (Doc. 59
at 8.) There exists no contractual obligation between Plaintiff and Mr. Ashe following Mr.
Ashe’s death. (See Doc. 43 at ¶ 20) (“[t]he Agreement remained in effect from on or about
August 17, 2010 until [Mr.] Ashe’s death.”). Thus, the Estate could not be liable for
intentional interference of a valid contract. See Safeway Ins. Co., Inc., 106 P.3d at 1025.
Additionally, Plaintiff has not alleged any facts in the FAC to support the contention that
Kensok or Ashe Ventures interfered with the Confidentiality Agreement between Plaintiff
and Mr. Ashe by inducing or causing Mr. Ashe to breach his contractual obligation to
Plaintiff regarding the 2010 Land Rover. (See Doc. 43); see also Iqbal, 556 U.S. at 678
(2009) (“mere conclusory statements [] do not suffice” to state a claim upon which relief
could be granted) (internal citations omitted). Because Plaintiff has not pled any facts
leading to the inference of “intentional interference [of a valid contract] inducing or causing
a breach” by Defendants, the claim fails. See Safeway Ins. Co., Inc., 106 P.3d at 1025.
Defendants also argue that the claim is time-barred because the Land Rover has
11 No such claim appears in the FAC, but such a claim would have had to be brought timely under
A.R.S. § 14-3803. See Matter of Est. of Levine, 700 P.2d 883, 885-886 (Ariz. Ct. App. 1985)
(discussing breach of contract claims on behalf of decedents and third-party beneficiary actions).
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been titled in Defendant Ashe Venture’s name since 2010, and Plaintiff previously claimed
that Defendants repudiated the Agreement in 2021. (Doc. 47 at 15.) Undersigned agrees
the claim is time-barred.
“A claim may be dismissed under Rule 12(b)(6) on the ground that it is barred by
the applicable statute of limitations only when the running of the statute is apparent on the
face of the complaint.” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d
954, 969 (9th Cir. 2010) (citations and quotations omitted). Defendants assert that in a
previous lawsuit, Plaintiff alleged that Defendants Estate and Kensok repudiated the
Confidentiality Agreement in 2021. (Doc. 47 at 15 (citing Doc. 35-1 at 26-51).) Pursuant
to its authority under Federal Rules of Evidence 201, undersigned takes judicial notice of
the Plaintiff’s Complaint filed in California Superior Court (“California Complaint”). See
supra n.5. In her California Complaint, Plaintiff alleged: “in or about 2021, Prescott’s
executors, trustees, attorneys, and other agents or employees, herein identified as
defendants’ Estate, Ashe, Kensok, Stobo, and Donovan, repudiated Prescott’s agreement
with Plaintiff in San Francisco, California.” (Doc. 35-1 at 36.) In that action, Plaintiff
asserted that those parties had failed to perform Mr. Ashe’s obligations under the
agreement, and they had therefore breached the agreement. (Id. at 37.) Plaintiff alleged that
Defendants’ failure to uphold the agreement, which was characterized as a breach in her
California Complaint and is now characterized as tortious interference in the FAC, took
place in or about 2021.12 (Id. at 36-37.) The FAC was filed on March 27, 2025, at least
fifteen months after the expiration of the two-year statute of limitations. (See Doc. 43);
A.R.S. § 12-542. It is plain from the face of the FAC that the claim in Count Two is barred
by the statute of limitations. Therefore, undersigned will recommend Plaintiff’s claim of
tortious interference with the Confidentiality Agreement be dismissed under Rule 12(b)(6).
12 Defendants also assert that the failure to transfer the title of the Land Rover began over a decade
ago, as Plaintiff alleged that the agreement was executed in 2010 and the title was never transferred
to Plaintiff. (Doc. 47 at 15; see also Doc. 43.) Defendants further point to a Declaration filed by
Plaintiff in California Superior Court, wherein she asserted that she contacted Defendant Kensok
in August 2020, asking Defendant Kensok to send Plaintiff the title, registration, and insurance for
the G-Wagon. (Doc. 47 at 15 (citing Doc. 35-1 at 6).) Were undersigned to use either of these
events to calculate the statute of limitations, it would also find that the claim is time-barred.
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b. Count Three
In Count Three, Plaintiff alleges that she “was a third-party beneficiary under the
Chubb Insurance agreement and was intended to receive all proceeds related to the G-
Wagon.” (Doc. 43 at ¶ 60.) Defendants argue the insurance contract “does not name either
Plaintiff as an insured or beneficiary” and therefore does not grant her any rights to the
insurance proceeds. (Doc. 47 at 14.) Undersigned agrees.
Plaintiff alleges in her FAC that by directing Chubb Insurance to issue a payment
to Defendant Ashe Ventures instead of allowing Plaintiff to keep the G-Wagon and make
repairs, Defendants interfered with the Chubb Insurance contract. (Doc. 43 at ¶¶ 62-64.)
Plaintiff further alleges that the G-Wagon was titled under Defendant Ashe Ventures and
Mr. Ashe paid for the insurance policy. (Id. at ¶ 36.) Regarding her dealings with the
insurance company, Plaintiff alleges that Chubb Insurance referred to her as the owner of
the G-Wagon and as a claimant and insured person under the policy. (Id. at ¶¶ 40, 41.)
These facts, taken as true, see Iqbal, 556 U.S. at 678, do not establish that Plaintiff was
entitled to the insurance proceeds for damage to the vehicle or otherwise satisfy
Armbruster. 953 F. Supp. 2d at 1076 (citations omitted). Plaintiff has not alleged sufficient
facts in her FAC to show that she was specifically intended to benefit from the contract
between Ashe Ventures and Chubb Insurance. (See Doc. 43); see Armbruster, 953 F. Supp.
2d at 1076. Rather, they point to the reasonable inference that Plaintiff was simply listed
as an insured on a policy issued to and paid for by Mr. Ashe and/or Defendant Ashe
Ventures. (See Doc. 43.) Therefore, Plaintiff has failed to state a claim for which relief can
be granted in Count Three of the FAC, and undersigned will recommend this Count be
dismissed.
3. Count Six: Unjust Enrichment
Next, in Count Six, Plaintiff alleges that when Defendants directed Chubb Insurance
to pay the insurance proceeds to Defendant Ashe Ventures, rather than allow her to keep
the G-Wagon and make repairs, Defendants were “enriched through the insurance proceeds
paid out” and “Bonia was impoverished through both the loss of the G-Wagon and the lack
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of insurance proceeds paid to her.” (Doc. 43 at ¶¶ 82-84.)
“To recover under a theory of unjust enrichment, a plaintiff must demonstrate five
elements: (1) an enrichment, (2) an impoverishment, (3) a connection between the
enrichment and impoverishment, (4) the absence of justification for the enrichment and
impoverishment, and (5) the absence of a remedy provided by law.” Freeman v. Sorchych,
245 P.3d 927, 936 (Ariz. Ct. App. 2011) (citations omitted). “[U]njust enrichment is a form
of restitutionary relief available upon either implied in fact contract or quasi-contractual
grounds.” USLife Title Co. of Ariz. v. Gutkin, 732 P.2d 579, 584 (Ariz. Ct. App. 1986)
(quotations and citations omitted). But Arizona law specifies that the defendant’s receipt
of a benefit is not enough to prove unjust enrichment; the plaintiff must show that they
conferred a benefit. Freeman, 245 P.3d at 936-37. “[A] plaintiff must show that it was not
intended or expected that the services be rendered or the benefit conferred gratuitously,
and that the benefit was not conferred officiously.” Id. (quotations and citations omitted).
Moreover, unjust enrichment is a “flexible equitable remedy which is available whenever
the court finds that the defendant . . . is obliged by the ties of natural justice and equity to
make compensation for the benefits received.” Hannibal-Fisher, 523 F. Supp. 3d at 1097
(quotations and citations omitted).
In her FAC, Plaintiff alleges that Defendants were enriched at her expense, there
was no justification for the enrichment, and that she lacks a sufficient legal remedy. (Doc.
43 at ¶¶ 85-87.) Defendants argue that this claim fails because Plaintiff was not named as
an insured or beneficiary on the insurance policy. (Doc. 47 at 16.) Undersigned agrees
with Defendants and finds there are not sufficient facts pled in the FAC to plausibly show
that Plaintiff is entitled to compensation for the insurance proceeds paid to Defendant Ashe
Ventures. (See Doc. 43.)
The facts pled, taken as true, do not show that Plaintiff rendered services or
conferred a benefit on Defendants. (See id.); see Freeman, 245 P.3d at 936-37. In fact,
Plaintiff alleges that “Defendants were enriched through the insurance proceeds paid out
by Chubb Insurance to them.” (Doc. 43 at ¶ 83.) Thus, Defendant Ashe Ventures’ receipt
of insurance proceeds from Chubb Insurance is insufficient to show that Defendants
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received a benefit conferred by Plaintiff. See Freeman, 245 P.3d at 936-37. There are no
other facts in the FAC allowing the Court to infer that Plaintiff conferred a benefit that
enriched Defendants. (See Doc. 43.) Therefore, Plaintiff has failed to state a claim for
unjust enrichment and undersigned will recommend Count Six of the FAC be dismissed.
4. Count Seven: Insurance Fraud in violation of A.R.S. § 20-463
Finally, in Count Seven, Plaintiff alleges that Defendants committed insurance fraud
in violation of Arizona Revised Statute § 20-463. (Doc. 43 at ¶¶ 89-93.)
Under Arizona law, a person presents a false, incomplete, or misleading insurance
claim if they:
present, cause to be presented or prepare with the knowledge or belief that it
will be presented an oral or written statement . . . to or by an insurer . . . that
contains untrue statements of material fact or that fails to state any material
fact with respect to . . . a claim for payment or benefit pursuant to an
insurance policy.
State v. Barnes, 2018 WL 4164993, at *4 (Ariz. Ct. App. Aug. 30, 2018) (cleaned up)
(quoting A.R.S. § 20-463(A)(1)(c)).
Courts have found that there is an implied private right of action under this statute.
United Healthcare Servs. Inc. v. Adv. Reimbursement Solutions LLC, No. CV-21-01302-
PHX-DLR (CDB), 2022 WL 4783771, at *5 (D. Ariz. Sept. 30, 2022) (citing Sparks v.
Republic Nat’l Life Ins. Co., 647 P.2d 1127, 1139 (Ariz. 1982)); cf. Capitol Specialty Ins.
Corp. v. Chaldean LLC, No. CV-21-00342-PHX-MTL, 2022 WL 2953062, at *4 (D. Ariz.
July 26, 2022) (denying default judgment as to a claim under A.R.S. §§ 20-463, 44-1220,
and 13-2310 “because [p]laintiff seeks relief under criminal statutes” and there is no private
right of action under criminal statutes). Claims under A.R.S. § 20-463 are also subject to a
one-year statute of limitations. See Gentile v. Anesthesiologists’ Prof. Assur. Co., No. 94-
15213, 1995 WL 456394, at *3 (9th Cir. Aug. 2, 1995) (citing Sparks, 647 P.2d at 1139).
Here, Plaintiff alleges that Defendants told Chubb Insurance that Ashe Ventures
was the owner of G-Wagon in order to receive the insurance payment. (Doc. 43 at ¶¶ 90,
91.) Plaintiff also alleges that this statement was untrue and she was harmed as a result.
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(Id. at ¶¶ 92, 93.) Defendants counter that the statement regarding ownership of the G-
Wagon was true. (Doc. 47 at 16-17.) In Plaintiff’s Complaint, Count Seven of the FAC
incorporates the allegations in paragraphs 1-88. (Id. at ¶ 89.) Among those paragraphs is
the allegation that “Bonia elected to keep the title to the G-Wagon in Ashe Ventures, LLC’s
name . . . .” (Id. at ¶ 36.) Thus, Plaintiff pleads in her FAC that not only was Ashe Ventures
the title owner to the G-Wagon, but that she, herself, chose title of the vehicle to be in Ashe
Ventures’ name because “it allowed [Mr.] Ashe to pay for insurance and registration on an
ongoing basis without delay.” (Id.) These facts, taken as true, see Iqbal, 556 U.S. at 678,
could not logically or plausibly show that Defendants’ statement to Chubb Insurance
regarding Ashe Ventures’ ownership of the G-Wagon to be untrue. (See Doc 43.)13
Therefore, Plaintiff has not stated a claim upon which relief can be granted in Count
Seven.14 Undersigned will recommend Count Seven be dismissed.
C. Conclusion as to Rule 12(b)(6) and Leave to Amend
For the reasons explained above, Plaintiff has failed to state a claim upon which
relief can be granted in Counts One, Two, Three, Six, and Seven of the FAC. Thus,
undersigned will recommend those claims each be dismissed under Federal Rule of Civil
Procedure 12(b)(6). Plaintiff has requested leave to amend, but Plaintiff did not identify
any facts or legal theories that she sought to amend. (See Doc. 58 at 17.) Plaintiff has
already filed one amended Complaint. (Doc. 43.)
“In dismissing for failure to state a claim, a district court should grant leave to amend
even if no request to amend the pleading was made, unless it determines that the pleading
could not possibly be cured by the allegation of other facts.” Doe v. United States, 58 F.3d
494, 497 (9th Cir. 1995) (quotations and citations omitted). Whether to grant a motion to
13 Plaintiff, in her Response, also appears to attack Defendants’ depiction of facts in their Motion
to Dismiss and claims Defendants are “making a false statement of material fact.” (Doc. 58 at 17.)
The Court’s focus is on the sufficiency of the FAC. See Twombly, 550 U.S. at 555; Fed. R. Civ. P.
8. As discussed supra, the FAC is internally contradictory and fails to state a claim under A.R.S.
§ 20-463. (See Doc. 43.)
14 This claim may also be time-barred by the one-year statute of limitations. However, Plaintiff
does not allege facts showing when Defendants made the statement to Chubb Insurance. (See Doc.
43.) Because untimeliness is not apparent on the face of the FAC, undersigned will not recommend
dismissal of the claim on that basis. See Von Saher, 592 F.3d at 969.
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amend depends on five factors: “(1) bad faith, (2) prejudice to the opposing party, (3)
futility, (4) undue delay, and (5) whether plaintiff has previously amended his complaint.”
Western Shoshone Nat. Council v. Molini, 951 F.2d 200, 204 (9th Cir. 1991) (citations
omitted). The Ninth Circuit has found that undue delay, by itself, is insufficient to justify
denying leave to amend. Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 1999) (citing DCD
Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987)). “[I]n evaluating undue
delay, we also inquire ‘whether the moving party knew or should have known the facts and
theories raised by the amendment in the original pleading.’” AmerisourceBergen Corp. v.
Dialysist W., Inc., 465 F.3d 946, 953 (9th Cir. 2006) (quoting Jackson v. Bank of Hawaii,
902 F.2d 1385, 1387 (9th Cir. 1990)).
While courts should grant leave to amend freely, a court “may dismiss without leave
where a plaintiff’s proposed amendments would fail to cure the pleading deficiencies and
amendment would be futile.” Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034,
1041 (9th Cir. 2011) (citing Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc.,
911 F.2d 242, 247 (9th Cir. 1990) (per curiam)). “[T]he district court’s discretion to deny
leave to amend is particularly broad where plaintiff has previously amended the
complaint.” Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989).
Furthermore, the Ninth Circuit has upheld a district court’s decision to deny leave to
amend, even on the first request to amend the complaint, when plaintiffs “did not propose
any new facts or legal theories for an amended complaint and therefore gave the [c]ourt no
basis to allow an amendment.” Gardner v. Martino, 563 F.3d 981, 991 (9th Cir. 2009).
Here, the Court does not find evidence, nor do Defendants argue, that leave to
amend is sought in bad faith or would prejudice the opposing party in some way. (See Doc.
47.) However, the other factors, such as whether Plaintiff has previously amended her
complaint, undue delay in litigation, and futility, all weigh against Plaintiff. Plaintiff has
already amended her original Complaint, and the present Motion to Dismiss concerns her
First Amended Complaint. (See Docs. 1, 43, 47.) On Plaintiff’s own admission, the present
case is as least the fifth action filed concerning this matter, three of which were in Arizona
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state court and one of which was in California state court, demonstrating the inefficiency
of this litigation. (See Doc. 58 at 4); see Coit v. Sutton Funding LLC, No. CV-10-0436-
PHX-DGC, 2010 WL 2105116, at *2 (D. Ariz. May 24, 2010) (denying leave to amend, in
part, because “[d]efendants have been required to defend themselves in three separate
actions and against three different complaints, all arising from the same operative facts.”)
Furthermore, Plaintiff has not alleged or otherwise proposed “any new facts or legal
theories for an amended complaint” which would give this Court a basis to allow an
amendment to the already previously amended Complaint. (See Doc. 58); see Gardner,
563 F.3d at 991. Thus, undersigned will recommend the 12(b)(6) Motion be granted
without leave to amend, and that the claims against Defendants Ashe Ventures, Kensok,
and Estate of Prescott Ashe be dismissed with prejudice.
IV. CONCLUSION ON MOTION TO DISMISS
In Section II of this Report and Recommendation, undersigned found no personal
jurisdiction as to Defendants Ashe Ventures, Kensok, and the Estate of Prescott Ashe. In
Section III of this Report, undersigned, in the alternative, found Plaintiff failed to state a
claim against those Defendants. Therefore, undersigned will recommend that the District
Judge grant Defendants’ Motion to Dismiss (Doc. 47) on both grounds. This would result
in dismissal of all claims against Defendants Ashe Ventures, Kensok, and the Estate.
Undersigned will further recommend the dismissal be with prejudice, because the 12(b)(6)
motion will be recommended to be granted with prejudice. Should the District Judge adopt
such a recommendation, the only claims that would remain in this matter would be Counts
Four and Five of the FAC against the only remaining Defendant, Chubb Insurance.
V. PLAINTIFF’S MOTION TO STAY OR VACATE
Finally, undersigned turns to Plaintiff’s Motion. On May 29, 2025, Plaintiff filed a
pro per Motion to Stay or Vacate Defendants’ Illegal Repossession of Plaintiff’s Personal
Vehicle and Request for Equitable Relief (Doc. 52). In that filing, Plaintiff restates the facts
underlying her claims and requests the following forms of relief: (1) an order “staying or
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vacating Defendants’ illegal repossession measures” regarding the Land Rover,15 (2) an
order compelling Defendants to provide Plaintiff with all documents relating to the
vehicles, including the title, registration, and warranty documents, (3) a temporary
injunction against Defendants, and (4) monetary damages. (Id. at 6.) Defendants filed a
Response in Opposition to Plaintiff’s Motion to Stay or Vacate, asserting that the Motion
is procedurally improper and that it cannot be construed as a valid response to Defendants’
Motion to Dismiss (Doc. 53).
It appears that the relief sought in Plaintiff’s Motion to Stay or Vacate is directed at
Defendants Ashe Ventures, Kensok, and the Estate. (See Doc. 52.) Given the Court’s
preceding analysis, see supra Sections II, III and IV, undersigned will recommend the
District Judge deny Plaintiff’s Motion as moot.
VI. ORDER AND RECOMMENDATION
Based on the foregoing,
IT IS ORDERED directing the Clerk of Court to reflect on the docket that full
consent to magistrate judge jurisdiction, as indicated at Doc. No. 27, is no longer present
in this case, as Defendant Chubb Insurance has not consented to magistrate judge
jurisdiction.
IT IS FURTHER RECOMMENDED:
1. That Defendants’ Motion to Dismiss Plaintiff[’s] First Amended Complaint for
Lack of Personal Jurisdiction, or, in the Alternative, Motion to Dismiss Failure
to State a Claim (Doc. 47) be granted;
2. That Counts One, Two, Three, Six, and Seven of the First Amended Complaint
as to Defendants Ashe Ventures, LLC, Anne Kensok, and the Estate of Prescott
Ashe be dismissed with prejudice; and
3. That Plaintiff’s Motion to Stay or Vacate Defendants’ Illegal Repossession of
Plaintiff’s Personal Vehicle and Request for Equitable Relief (Doc. 52) be
15 Plaintiff refers to the vehicle in dispute in the Motion to Stay or Vacate as a 2010 Range Rover.
(Doc. 52.) Plaintiff refers to the vehicle in dispute in her FAC as a 2010 Land Rover. (Doc. 43.)
The Court, for purposes of the present Motion, will assume that the facts pled in the FAC are true,
see Iqbal, 556 U.S. at 678, and will refer to the vehicle in dispute as the Land Rover.
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denied as moot.
This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of
Appellate Procedure, should not be filed until entry of the district court’s judgment. The
parties shall have 14 days from the date of service of a copy of this recommendation within
which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a
response to the objections.
Failure to timely file objections to the Magistrate Judge’s Report and
Recommendation may result in the acceptance of the Report and Recommendation by the
district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the
Magistrate Judge will be considered a waiver of a party’s right to appellate review of the
findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s
recommendation. See Fed. R. Civ. P. 72.
Dated this 7th day of November, 2025.
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