Ellis v. Jackson National Life Insurance Company et al
MEMORANDUM OPINION AND ORDER directing as follows: (1) the Rule 12(b)(2) 60 MOTION to Dismiss for Lack of personal Jurisdiction is DENIED; (2) the alternative MOTION to transfer is GRANTED, and this action is TRANSFERRED to the US District Cour t for the Southern District of Mississippi, pursuant to 28 USC 1404(a); and (3) the Clerk is directed to take appropriate steps to ensure that the funds deposited with this court are deposited with the transferee court for ultimate disposition. Signed by Chief Judge William Keith Watkins on 8/30/12. (Attachments: # 1 civil appeals checklist)(djy, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
JACKSON NATIONAL LIFE
INSURANCE CO., et al.,
) CASE NO. 2:11-CV-1064-WKW
MEMORANDUM OPINION AND ORDER
This diversity action involves a dispute regarding the proper beneficiaries to
a $1 million annuity policy issued by Jackson National Life Insurance Co. to the
deceased, John C. Ellis Jr. (“Mr. Ellis”). Plaintiff Barbara Ellis, who used to be a
beneficiary on her ex-husband’s policy, brings this action alleging that her exhusband’s adult children instigated a change in the beneficiary designation through
fraud and by reason of the insured’s mental incompetence. Plaintiff seeks to void the
beneficiary designation that had the effect of excluding her from receiving any of the
Before the court is a motion to dismiss for lack of personal jurisdiction, filed
by Defendants Janet E. Gordon, Elizabeth E. Hanson, John C. Ellis III, and The
Russell W. Ellis Irrevocable Trust (“Beneficiary Defendants”), pursuant to Rule
12(b)(2) of the Federal Rules of Civil Procedure. (Doc. # 60.) Alternatively, the
Beneficiary Defendants move to transfer this action to the United States District
Court for the Southern District of Mississippi, pursuant to 28 U.S.C. § 1404(a). (Doc.
# 60.) Plaintiff Barbara Ellis filed a response in opposition (Doc. # 66), to which the
Beneficiary Defendants replied (Doc. # 70). After careful consideration of the
arguments of counsel, the applicable law and the record as a whole, the court finds
that the motion to dismiss is due to be denied but that this action is due to be
transferred to the United States District Court for the Southern District of Mississippi
for the convenience of the parties and in the interest of justice.
II. JURISDICTION AND VENUE
The court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a).
The amount in controversy exceeds $75,000, and there is complete diversity of
citizenship between Plaintiff and Defendants. Personal jurisdiction and venue are at
III. STANDARDS OF REVIEW
Motion to Dismiss for Lack of Personal Jurisdiction Pursuant to Rule
A Rule 12(b)(2) motion tests the court’s exercise of personal jurisdiction over
a defendant. See Fed. R. Civ. P. 12(b)(2). Where a Rule 12(b)(2) motion to dismiss
is decided without an evidentiary hearing, the plaintiff need only establish a prima
facie case of personal jurisdiction over a non-resident defendant. See Madara v. Hall,
916 F.2d 1510, 1514 (11th Cir. 1990). A plaintiff demonstrates a “prima facie case
of personal jurisdiction” by submitting sufficient evidence to defeat a motion made
pursuant to Rule 50(a) of the Federal Rules of Civil Procedure. See Snow v. DirecTV,
Inc., 450 F.3d 1314, 1317 (11th Cir. 2006). Allegations in the complaint are
presumed true, if uncontroverted by the defendant’s evidence. Madara, 916 F.2d
at 1514. When the parties’ evidence is in conflict, the court must construe all
reasonable inferences in favor of the plaintiff, particularly when the jurisdictional
issues are intertwined with the merits. Delong Equip. Co. v. Wash. Mills Abrasive,
840 F.2d 843, 845 (11th Cir. 1988).
Motion to Transfer Pursuant to § 1404(a)
A district court may transfer a civil action to any other district in which it might
have been brought “[f]or the convenience of the parties and witnesses” and “in the
interest of justice.” § 1404(a). Because federal courts usually accord deference to a
plaintiff’s choice of forum, the burden is on the movant to show that the suggested
forum is more convenient or that litigation there would be in the interest of justice.
In re Ricoh Corp., 870 F.2d 570, 573 (11th Cir. 1989). Ultimately, a district court has
“broad discretion in weighing the conflicting arguments as to venue,” England v. ITT
Thompson Indus., Inc., 856 F.2d 1518, 1520 (11th Cir. 1988), and must engage in an
“individualized, case-by-case consideration of convenience and fairness,” Stewart
Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (citation and internal quotation
When Mr. Ellis died in his home state of Mississippi on October 21, 2011, he
had a $1 million annuity policy issued by Jackson National Life Insurance Co.
(“National Life”). Unbeknownst to Plaintiff, nine months prior to his death, Mr. Ellis
changed the beneficiary designation on the policy, dividing the proceeds equally
among his four adult children. This change had the effect of revoking all previous
beneficiary designations, including Plaintiff’s prior designation as a beneficiary of 66
percent of the policy’s proceeds. (Am. Compl. ¶¶ 11, 12, 14, 15.)
On one side of this dispute is Plaintiff, an Alabama citizen, who is Mr. Ellis’s
ex-wife. She contends that Mr. Ellis lacked testamentary capacity to change the
policy’s beneficiaries.1 Plaintiff points to the certificates of incapacity signed by Mr.
Ellis’s treating physicians some six weeks after Mr. Ellis changed the beneficiary
designation and the ensuing Mississippi state court judgment appointing Mr. Ellis’s
two daughters as co-conservators to manage Mr. Ellis’s estate. (Am. Compl.
¶¶ 16-19.) Her theory is that, during Mr. Ellis’s period of incompetency, the
Beneficiary Defendants fraudulently caused a change in the beneficiary designation
so as to deprive her of her share of the policy’s proceeds. In fact, Plaintiff alleges that
less than two weeks after Mr. Ellis had confirmed to her that she was the main
beneficiary on his policy, her status as a beneficiary was extinguished entirely and
without her knowledge. (Am. Compl. ¶¶ 14, 24.) On the other side of this dispute
are Mr. Ellis’s three children and a trust established for the benefit of Mr. Ellis’s
This case does not present the stereotypic scenario where the insured divorces but fails
to change the beneficiary designation to remove the ex-spouse. Here, Plaintiff and Mr. Ellis
married and divorced twice, with the second marriage ending in October 2003. More than five
years later in April 2009, Mr. Ellis named Plaintiff as a beneficiary to 66 percent of the policy
proceeds, identifying her on the designation form as a “friend.” In the same form, Mr. Ellis
designated each of his daughters to receive 9 percent and each of his sons 8 percent of the
fourth child, all of whom are Mississippi citizens. These Defendants are equal cobeneficiaries under the policy as a result of the change in the beneficiary designation.2
Approximately one month after Mr. Ellis’s death, Plaintiff forwarded a letter
and a copy of the form making her a beneficiary on Mr. Ellis’s policy to National
Life.3 (Am. Compl. ¶ 21.) She soon learned from National Life, however, that she
was no longer a beneficiary on the policy and that it would pay the proceeds of the
policy to the Beneficiary Defendants unless it received a “court order to the contrary
within ten days.” (Compl., Ex. 8; see also Am. Compl. ¶¶ 23–24.) That revelation
triggered this lawsuit, which Plaintiff originally filed only against National Life,
along with a motion for a temporary restraining order to prevent National Life from
disbursing the proceeds of the policy. A temporary restraining order issued. National
Life responded that it had no interest in the funds, and, thus, it deposited the proceeds
of the policy, in an amount totaling $1,056,195.93, into the registry of this court.4
Mr. Ellis’s fourth grown child, Russell W. Ellis, who is proceeding pro se, also is a
defendant. Neither Russell W. Ellis nor National Life is a party to the Beneficiary Defendants’
motion to dismiss or, in the alternative, to transfer. National Life has indicated, however, that it
“takes no position” on the pending motion. (Doc. # 69, at 1.) Moreover, in a prior Order, the
court found that Mr. Ellis waived the defense of lack of personal jurisdiction, see Fed. R. Civ. P.
12(b) and 12(h), and consented to the personal jurisdiction of this court by filing a counterclaim).) (See Doc. # 51, at 1-2.)
National Life is incorporated in Michigan and also has its principal place of business in
National Life has since filed a counterclaim and crossclaim for interpleader and
declaratory relief naming the Beneficiary Defendants as cross-defendants. (Doc. # 67.)
A two-count Amended Complaint followed, adding the Beneficiary Defendants
and Defendant Russell W. Ellis. Count I alleges that in January 2011, Mr. Ellis was
“mentally incapable of managing his own affairs and lacked the mental and/or
testamentary capacity to execute a change of beneficiary” designation on the policy.
(Am. Compl. ¶ 30.) Count II alleges that Plaintiff’s removal as a beneficiary “was
made in an improper, wrongful and/or fraudulent manner” and while Mr. Ellis was
mentally incompetent. (Am. Compl. ¶ 32.) Plaintiff requests the court to void the
beneficiary designation form that excluded her and to enforce the preceding
beneficiary designation form that awarded her 66 percent of the policy’s proceeds.
The Beneficiary Defendants responded to the Amended Complaint with a
motion to dismiss for lack of personal jurisdiction on the ground that they have no
meaningful contacts in the state of Alabama. Moreover, the Beneficiary Defendants
contend that not only must all claims against them be dismissed, but also that the
action in its entirety must be dismissed because they are necessary and indispensable
parties. See Fed. R. Civ. P. 19(a). Alternatively, the Beneficiary Defendants argue
that this action should be transferred to the United States District Court for the
Southern District of Mississippi, pursuant to § 1404(a). Plaintiff opposes the motions
in their entirety.
Motion to Dismiss for Lack of Personal Jurisdiction Pursuant to Rule
The first issue concerns this court’s exercise of personal jurisdiction over the
nonresident Beneficiary Defendants.7 In a diversity action, the inquiry into personal
jurisdiction requires two steps. First, the exercise of jurisdiction must be appropriate
under the state’s long-arm statute, and, second, it must not violate the Due Process
Clause of the Fourteenth Amendment to the United States Constitution. United
Techs. Corp. v. Mazer, 556 F.3d 1260, 1274–75 (11th Cir. 2009). Alabama’s
long-arm provision, Rule 4.2(a) of the Alabama Rules of Civil Procedure, governs an
Alabama state court’s exercise of personal jurisdiction over an out-of-state defendant.
See Vista Land & Equip., LLC v. Computer Programs & Sys., Inc., 953 So. 2d 1170,
1174 (Ala. 2006). Because Alabama’s long-arm rule extends to the full limits of due
process under the Fourteenth Amendment, see id., the two-step, personal jurisdiction
analysis merges. The court need only consider, therefore, whether the exercise of
jurisdiction satisfies the requirements of due process. Olivier v. Merritt Dredging
Co., 979 F.2d 827, 830 (11th Cir. 1992).
The jurisdictional issue is being considered based upon the pleadings and evidence. In
the exercise of its discretion, the court declines to hold an evidentiary hearing, and the parties
have not requested one. See Madara, 916 F.2d at 1514.
Due process requires (1) that the defendant have “certain minimum contacts”
with the forum state and (2) if such minimum contacts exist, that the exercise of
jurisdiction over the defendant “‘does not offend traditional notions of fair play and
substantial justice.’” Burnham v. Superior Court of Calif., 495 U.S. 604, 618 (1990)
(quoting Int’l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945)). “This two-part test
embodies the controlling due process principle that a defendant must have ‘fair
warning’ that a particular activity may subject it to the jurisdiction of a foreign
sovereign.” Vermeulen v. Renault, U.S.A., Inc., 985 F.2d 1534, 1545 (11th Cir.
The Beneficiary Defendants argue that they do not have the required minimum
contacts with the state of Alabama to support this court’s exercise of personal
jurisdiction over them. Two types of minimum contacts can form the basis for
personal jurisdiction: general and specific. See Stubbs v. Wyndham Nassau Resort
& Crystal Palace Casino, 447 F.3d 1357, 1360 n.3 (11th Cir. 2006). General
jurisdiction may arise from a party’s contacts with the forum state that are unrelated
to the litigation. Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414
n.8–9 (1984). To establish general personal jurisdiction, the defendant’s activities in
the state must have been “continuous and systematic.” Meier ex rel. Meier v. Sun
Int’l Hotels, Ltd., 288 F.3d 1264, 1274 (11th Cir. 2002). In contrast, “[s]pecific
jurisdiction arises out of a party’s activities in the forum that are related to the cause
of action alleged in the complaint.” Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d
1286, 1291 (11th Cir. 2000); see also Burger King Corp. v. Rudzewicz, 471 U.S. 462,
General Personal Jurisdiction
As to general personal jurisdiction, the Beneficiary Defendants submit
affidavits establishing the absence of constitutionally significant contacts with the
state of Alabama. All are Mississippi citizens. The three individual Beneficiary
Defendants, specifically Mr. Ellis’s two daughters and one of his sons, attest that they
do not live in Alabama, do not own property in the state of Alabama, do not work in
or solicit any business from this state, and do not maintain any bank accounts here.
Concerning the fourth Beneficiary Defendant, there is affidavit testimony that neither
the trust, which was established for the benefit of one of Mr. Ellis’s sons, nor the
trust’s trustee has any connections with this state. The Beneficiary Defendants also
attest that Mr. Ellis changed the beneficiary designations while in Mississippi and
that all subsequent proceedings and medical examinations surrounding Mr. Ellis’s
competency transpired in Mississippi.
Plaintiff has not submitted any contradictory evidence. Instead, Plaintiff
focuses on the deceased policyholder’s past travels to Alabama. Emphasizing that
prior to his death Mr. Ellis spent substantial time with her at her home in Orange
Beach, Alabama, Plaintiff argues that his contacts with her in Alabama should count
for something in the personal jurisdiction analysis. Plaintiff’s focus is misplaced.
Mr. Ellis’s contacts with the forum state, as well as Plaintiff’s contacts with the
deceased, are not germane to whether any of the Beneficiary Defendants can be
subjected to the personal jurisdiction of this court. Only the defendant’s contacts
with the forum count, and “[e]ach defendant’s contacts with the forum State must be
assessed individually.” Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 781 n.13
(1984); see also Ruiz de Molina v. Merritt & Furman Ins. Agency, Inc., 207 F.3d
1351, 1356 (11th Cir. 2000) (“[I]t is important to remember that the conduct at issue
is that of the defendants. No plaintiff can establish jurisdiction over a defendant
through his own actions.”).
Based on the undisputed affidavits submitted by the Beneficiary Defendants,
the court finds that they do not have continuous and systematic contacts with the state
of Alabama sufficient to satisfy the minimum contacts standard for exercising general
personal jurisdiction. The issue is, therefore, one of specific personal jurisdiction.
Specific Personal Jurisdiction
Even where there is no general personal jurisdiction over a nonresident
defendant, Alabama courts still may exercise personal jurisdiction if the case arises
out of certain forum-related acts. Plaintiff has not contradicted the Beneficiary
Defendants’ evidence that the change in the beneficiary designation form was
executed in Mississippi and that the Beneficiary Defendants “undertook no actions
involving the policy in the state of Alabama.” (See, e.g., Janet Gordon’s Aff. ¶¶ 17,
22.) There also are no allegations or evidence that the Beneficiary Defendants
committed any tortious acts in Alabama. Notwithstanding these facts, Plaintiff argues
that there are sufficient minimum contacts to justify this court’s exercise of specific
personal jurisdiction over the Beneficiary Defendants pursuant to the “effects” test
set out in Calder v. Jones, 465 U.S. 783 (1984), because the alleged out-of-state
intentional conduct caused injury to an Alabama citizen. The Beneficiary Defendants
respond that Plaintiff’s interpretation of the effects test is “overly simplistic” and that
Plaintiff’s sparse allegations and evidence do not demonstrate that “each of the
Beneficiary Defendants have sufficient minimum contacts with the state of Alabama
to permit each . . . to be haled into court without offending the traditional notions of
fair play and substantial justice.” (Doc. # 70, at 7.)
Calder establishes that there are certain circumstances where specific personal
jurisdiction may be based on the in-forum effects of a defendant’s extra-forum
conduct. In Calder, a libel action was brought in a California court against two
Florida defendants, a writer, and the editor of the National Enquirer magazine. See
465 U.S. at 784–85. The alleged libelous article was written and edited in Florida and
published in the Florida-based national tabloid magazine. See id. at 784–86. Holding
that personal jurisdiction over the Florida defendants was proper in California, the
Court explained that the “focal point” of the article “concerned the California
activities of a California resident,” id. at 788–89, that the magazine’s largest
circulation was in California, id. at 790, and that the “brunt of the harm, in terms both
of [the plaintiff’s] emotional distress and the injury to her professional reputation,”
was endured by the plaintiff in California, id. at 789. Jurisdiction was proper in
California based on the “effects” of the defendants’ Florida conduct in California.
Id. at 790 (citation and internal quotation marks omitted).
The Eleventh Circuit applies the Calder effects test in cases involving
intentional torts.8 Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1220 (11th
Cir. 2009); see also Licciardello, 544 F.3d at 1286 n.6 (“Under the effects test, acts
expressly aimed by the defendant at an individual in the forum may result in personal
jurisdiction over the defendant, but mere untargeted action or a fortuitous result will
not.” (citing Calder, 465 U.S. at 788–90)). The Eleventh Circuit has noted that
In cases involving negligence, the test is different: Minimum contacts are
constitutionally sufficient for specific personal jurisdiction when (1) there “exist[s] some act by
which the defendant purposefully avails itself of the privilege of conducting activities within the
forum . . . , thus invoking the benefits and protections of its laws[,]” and (2) “the defendant’s
contacts with the forum . . . relate to the plaintiff’s cause of action or have given rise to it.”
Oldfield, 558 F.3d at 1220.
“[s]tated in its broadest construction, the effects test requires a showing that the
defendant (1) committed an intentional tort (2) that was directly aimed at the forum,
(3) causing an injury within the forum that the defendant should have reasonably
anticipated.” Oldfield, 558 F.3d at 1220 n.28. Although admittedly a close issue, the
court finds that the Calder effects test is met.
The parties have not pointed to any decision from the Eleventh Circuit applying
the Calder effects test in a factually similar context as the one presented here, and
none has been found. The Eleventh Circuit has recognized that “[m]any courts have
employed the Calder ‘effects’ test when the plaintiff’s claim involves an intentional
tort” other than libel as was at issue in Calder. Licciardello, 544 F.3d at 1286
(collecting cases). In Licciardello, the Eleventh Circuit countenanced the use of the
effects test to determine personal jurisdiction over a nonresident defendant alleged
to have committed trademark infringement. Id. at 1287–88. The alleged “intentional
tort” was the defendant’s posting on a website of the plaintiff’s trademarked name
and photograph in a manner to imply the plaintiff’s endorsement. The posting was
“not negligent, but intentional.” Id. at 1288–89; see id. at 1288 n.8 (“[W]here the
internet is used as a vehicle for the deliberate, intentional misappropriation . . . ,” the
actor can be haled to the forum.)9; see also Brennan v. Roman Catholic Diocese of
Syracuse New York, Inc., 322 F. App’x 852, 855 (11th Cir. 2009) (applying the
Calder effects test where the claims were for intentional fraudulent misrepresentation
and intentional infliction of emotional distress).
Here, the offending act is the Beneficiary Defendants’ act of causing a change
in the beneficiary designation on Mr. Ellis’s policy that divided equally the policy’s
proceeds among Mr. Ellis’s four children and removed Plaintiff as a beneficiary.
Plaintiff’s allegations admittedly are sparse, but the court finds them to be sufficient
to demonstrate an act that was intentional. Additionally, the Amended Complaint
alleges that this act was “fraudulent” or otherwise “wrongful,” not merely negligent.10
(Am. Compl. ¶ 32.) These allegations show the Beneficiary Defendants’ alleged
commission of an intentional tort.
The Beneficiary Defendants argue, however, that Plaintiff has not submitted
any evidence (as opposed to allegations) that the actions of the Beneficiary
The Licciardello court noted that “[m]ere negligent use of an infringing mark
would not satisfy the Calder test.” 544 F.3d at 1287 n.6.
The Seventh and Tenth Circuits have noted a split among the circuits as to whether
under the first Calder prong, the act must be only intentional or must be both intentional and
allegedly tortious. See Felland v. Clifton, 682 F.3d 665, 674–75 & n.2 (7th Cir. 2012); Dudnikov
v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1072–73 (10th Cir. 2008). The Eleventh
Circuit was not cited in these discussions. This court need not opine on the fray because the
allegations here are sufficient to demonstrate both an intentional and allegedly tortious act.
Defendants were intentional and that Plaintiff cannot rely on the allegations in the
Amended Complaint to meet her burden of demonstrating personal jurisdiction.
(Doc. # 70, at 8–9.) The court disagrees.
If a plaintiff’s allegations in the complaint are not contradicted, they are
presumed true and factor into the personal jurisdiction analysis. See Madara, 916
F.2d at 1514. The Beneficiary Defendants have not pointed to any attestations in
their affidavits that refute Plaintiff’s allegations, and the court has found none. At
best, on this issue, the Beneficiary Defendants have attested that it was Mr. Ellis who
“changed the beneficiary designation for the Policy” (see, e.g., Hanson’s Aff. ¶ 22),
but that attestation does not rule out that he was persuaded to do so because of the
Beneficiary Defendants’ alleged fraudulent acts. (See Pl.’s Aff. 1 (suggesting that
Mr. Ellis’s signature on the change of beneficiary form may have been fraudulent
because it was forged).)
Moreover, because the issue of whether Defendants acted intentionally is
essentially a merits inquiry, even assuming the existence of a conflict between
Plaintiff’s and the Beneficiary Defendants’ evidence, “greater weight” would be
given to Plaintiff’s version of events. Delong Equip. Co., 840 F.2d at 845; cf. Future
Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1250 (11th Cir. 2000)
(holding that a full-scale inquiry into whether the defendant committed a tort is not
required to satisfy personal jurisdiction under Florida’s long-arm statute; it is
sufficient that the record is in dispute as to the merits of the claim). In sum, the court
finds that the first Calder prong is satisfied.
Plaintiff also must establish that the Beneficiary Defendants expressly aimed
their intentional and allegedly tortious act at Alabama. As alleged, it is clear that
Plaintiff suffered the financial effects of the Beneficiary Defendants’ alleged
intentional and fraudulent conduct: But for the change in the beneficiary designation
form, Plaintiff would have collected $660,000 as a beneficiary on Mr. Ellis’s policy.
For purposes of satisfying Calder’s prerequisites, however, there must be “something
more” than the fact that a plaintiff feels the intentional conduct’s effect in the forum
state. Licciardello, 544 F.3d at 1287 (quoting Bancroft & Masters, Inc. v. Augusta
Nat’l, Inc., 223 F.3d 1082, 1088 (9th Cir. 2000), overruled on other grounds by
Yahoo! Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, 433 F.3d 1199,
1206–07 (9th Cir. 2006))). Otherwise, “jurisdiction in intentional tort cases would
always be appropriate in the plaintiff’s home state, since the plaintiff always ‘feels’
the impact of the tort there.” IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 263 (3d
Cir. 1998). In Licciardello, the Eleventh Circuit agreed with the Ninth Circuit that
“Calder requires that the defendant ‘expressly aim’ his wrongful conduct,
individually targeting a known forum resident.” Licciardello, 544 F.3d at 1287
(quoting Bancroft & Masters, 223 F.3d at 1088, overruled on other grounds by
Yahoo! Inc., 433 F.3d at 1206–07). The express aiming requirement has been
incorporated by the Eleventh Circuit as the second Calder prong. See Oldfield, 558
F.3d at 1220 n.28. What exactly is required under this prong is not always easy to
decipher, but in Bancroft & Masters, the Ninth Circuit provided some guidance:
Express aiming is a concept that in the jurisdictional context hardly
defines itself. From the available cases, we deduce that the requirement
is satisfied when the defendant is alleged to have engaged in wrongful
conduct targeted at a plaintiff whom the defendant knows to be a
resident of the forum state.
223 F.3d at 1087; see also Mobile Anesthesiologists Chi., LLC v. Anesthesia Assocs.
of Houston Metroplex, 623 F.3d 440, 445 (7th Cir. 2010) (“‘[E]xpress aiming’
remains the crucial requirement when a plaintiff seeks to establish personal
jurisdiction under Calder.”).
Another Ninth Circuit decision, Metropolitan Life Insurance Co. v. Neaves,
912 F.2d 1062 (9th Cir. 1990), also is instructive based on its factual similarities with
this case. In Metropolitan Life, an insurance company brought a declaratory
judgment action in a California district court to determine whether it correctly paid
all of the proceeds on a life insurance policy to an Alabama citizen, who was one of
the two designated beneficiaries. The theory was that the Alabama beneficiary
fraudulently represented to the insurance company that the second beneficiary was
deceased for the purpose of collecting all of the proceeds of the policy and depriving
the second beneficiary of his share of the proceeds. Relying on Calder, the Ninth
Circuit held that the Alabama beneficiary could be haled into a California court. By
sending the fraudulent forms to the insurance company, the Alabama beneficiary
“was purposefully defrauding” the California beneficiary.11 Id. at 1065.
The Beneficiary Defendants argue that Plaintiff has not shown that their
alleged fraudulent conduct was expressly aimed at Plaintiff because there is no
evidence that the Beneficiary Defendants knew that Plaintiff was an Alabama resident
or that their acts would cause her harm in Alabama. (Doc. # 70, at 8.) This argument
is not persuasive. While it remains Plaintiff’s burden to prove personal jurisdiction,
it is notable that the Beneficiary Defendants have not disavowed knowledge of where
Plaintiff lived. It seems illogical that Plaintiff’s grown stepchildren would not know
the state in which their ex-stepmother lived, particularly given Plaintiff’s evidence
of their father’s relationship and contacts with Plaintiff as recently as 2010, but the
court need not base a finding of knowledge on bare logic. There is something more
in the evidence from which to infer knowledge: the judgment entered on March 28,
Although Metropolitan Life was decided prior to the Ninth Circuit’s explicit adoption
of the “express aiming” requirement, the Ninth Circuit has relied on its reasoning as recently as
2011. See Fiore v. Walden, 657 F.3d 838, 852 (9th Cir. 2011).
2011, in the Chancery Court of Harrison County, Mississippi, appointing Janet
Gordon and Elizabeth Hanson (two of the Beneficiary Defendants) as co-conservators
to manage their father’s estate. Based upon that appointment, their knowledge of Mr.
Ellis’s assets reasonably can be assumed. (See Order of the Chancery Court (ordering
Ms. Gordon and Ms. Hanson to deliver to the clerk of the court an inventory of all
Mr. Ellis’s estate, real and personal (Pl. Ex. 7 to Am. Compl.).) Mr. Ellis’s policy no
doubt is part of his conservatorship estate, and at the time of Ms. Gordon’s and Ms.
Hanson’s appointment, the beneficiary designation form in effect named Plaintiff as
a 66 percent beneficiary and listed an Alabama address for her. (Ex. 1 to Compl.
(Doc. # 1-1).)
Construing all evidentiary inferences in Plaintiff’s favor, these documents
reveal that the Beneficiary Defendants knew that Plaintiff lived in Alabama and that
she was a majority beneficiary on Mr. Ellis’s policy. The Beneficiary Defendants’
intentional and fraudulent act of causing a change in the beneficiary designation
individually targeted Plaintiff by cutting off her right to any share of the policy’s
proceeds and by dividing those policy proceeds equally among themselves. In
effectuating the change in the beneficiary designation form, the Beneficiary
Defendants targeted Plaintiff in the same manner that the California beneficiary was
a target in Metropolitan Life: The Beneficiary Defendants’ intentional conduct
defrauded the forum Plaintiff by depriving her of her right to the policy’s proceeds.
In sum, the court finds that the facts are sufficient to support a theory that the
Beneficiary Defendants expressly aimed their fraudulent conduct at Plaintiff, whom
they knew to be an Alabama citizen and whom they knew would suffer harm in
Alabama. The express aiming prong of the Calder effects test is satisifed.12
Reasonable Anticipation of Injury in the Forum
The Beneficiary Defendants contend in boilerplate fashion that they never have
anticipated being haled into court in the state of Alabama. (See, e.g., Hanson’s Aff.
¶ 14.) Certainly, the Beneficiary Defendants should not be surprised to be hailed into
court in Alabama when they took affirmative steps through alleged fraudulent means
to deprive Plaintiff of her share of the policy’s proceeds. They should have
reasonably anticipated that Plaintiff would be injured when she was removed as a 66
percent beneficiary on a $1 million policy, and they should have reasonably
anticipated that her harm would occur in Alabama where she was known to live. See
Metropolitan Life also made an observation that is equally applicable here. The Ninth
Circuit commented that, had the insurance company known of the alleged fraudulent conduct of
the Alabama beneficiary before it had paid out the policy proceeds, the insurance company could
have filed a statutory interpleader action in California, and jurisdiction would have been proper.
See Metro. Life, 912 F.2d at 1065–66 (citing 28 U.S.C. § 1335). The Ninth Circuit explained
that “[t]his makes it even more difficult for the [Alabama beneficiary] to contend that the
California’s court’s exercise of jurisdiction over her is unreasonable in this case.” Id. at 1066.
The same arguably could be said in this case: National Life, as the stakeholder, would have
satisfied § 1335’s requirements had it initiated an interpleader action in Alabama, as the res
exceeds $1 million, and there are two adverse claimants of diverse citizenship.
Licciardello, 544 F.3d at 1288 (“[T]he commission of an intentional tort, expressly
aimed at a specific individual in the forum whose effects were suffered in the forum”
means that the tortfeasor “cannot now claim surprise at being haled into court
[t]here.”). Accordingly, Plaintiff has satisfied the third element of the Calder effects
test. Because all three elements of the Calder test are satisfied, the Beneficiary
Defendants have constitutionally sufficient minimum contacts with the state of
Fair Play and Substantial Justice
Even where a defendant has purposefully established constitutionally sufficient
minimum contacts within the forum state, jurisdiction still must comport with fair
play and substantial justice. “Relevant factors include the burden on the defendant,
the forum’s interest in adjudicating the dispute, the plaintiff’s interest in obtaining
convenient and effective relief and the judicial system’s interest in resolving the
dispute.” Licciardello, 544 F.3d at 1288.
Here, Plaintiff, as an Alabama citizen who was injured by nonresidents’ alleged
intentional conduct directly aimed at her, “is not required to travel to the
nonresident’s state of residence to obtain a remedy.” Id. “‘An individual injured in
[Alabama] need not go to [Mississippi] to seek redress from persons who, though
remaining in Florida, knowingly cause the injury in California.’” Id. (quoting Calder,
465 U.S. at 1487). Additionally, it has been recognized that a state has a strong
interest in providing a forum for its citizens who have been injured by the intentional
acts of out-of-state residents. See McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223
(1957). Based upon these considerations, the court finds that its exercise of personal
jurisdiction over the Beneficiary Defendants comports with traditional notions of fair
play and substantial justice and that the due process requirements of the Constitution
are met in this case.13 Calder, 465 U.S. at 791.
Motion to Transfer Pursuant to § 1404(a)
As an alternative to dismissal for lack of personal jurisdiction, the Beneficiary
Defendants ask the court to transfer this action to the United States District Court for
the Southern District of Mississippi, pursuant to § 1404(a). Plaintiff opposes the
Section 1404(a) mandates a two-step analysis. First, the court must determine
whether venue would be proper in the proposed transferee district. § 1404(a); Van
Dusen v. Barrack, 376 U.S. 612, 616 (1964). Second, the court must analyze whether
“[f]or the convenience of the parties and witnesses” and in the “interest of justice,”
the action should be transferred. § 1404(a).
Because the court finds that personal jurisdiction over the Beneficiary Defendants is
proper in this court, the court need not address the Beneficiary Defendants’ argument that they
are indispensable parties and that, therefore, if personal jurisdiction is lacking over them, then the
entire action must be dismissed.
Under the first step, the Beneficiary Defendants argue that a substantial part of
the events giving rise to Plaintiff’s claims arose in the Southern District of
Mississippi and that, therefore, pursuant to 28 U.S.C. § 1391(b)(2), venue is proper
in that district. Plaintiff does not refute this argument.
Venue is statutorily proper in any district “in which a substantial part of the
events or omissions giving rise to the claim occurred.” § 1391(b)(2). In the Eleventh
Circuit, “[o]nly the events that directly give rise to a claim are relevant” to the
analysis. Jenkins Brick Co. v. Bremer, 321 F.3d 1366, 1371 (11th Cir. 2003).
Plaintiff’s pleadings and the evidence submitted, as highlighted in Part IV. A.
supra, reveal that more than a substantial portion of the events resulting in Plaintiff’s
harm occurred in Mississippi. The evidence establishes further that these events
occurred in Gulfport, Mississippi, which is in the Southern District of Mississippi.
The alleged fraudulent change in Mr. Ellis’s policy beneficiary designation happened
in Gulfport, Mississippi, where Mr. Ellis lived.
Additionally, the undisputed
evidence demonstrates that all of the physician evaluations and court proceedings
surrounding Mr. Ellis’s competency occurred in the Southern District of Mississippi.
In fact, the Amended Complaint lacks any reference to any events occurring in the
Middle District of Alabama. Not even Plaintiff’s alleged harm was felt in this
district, as Plaintiff lives in the Southern District of Alabama, not the Middle District
of Alabama. Accordingly, the court finds that venue is proper in the Southern District
of Mississippi, pursuant to § 1391(b).14
Under the second step, several factors guide a district court’s determination
of whether to transfer an action under § 1404(a):
(1) the convenience of the witnesses; (2) the location of relevant
documents and the relative ease of access to sources of proof; (3) the
convenience of the parties; (4) the locus of operative facts; (5) the
availability of process to compel the attendance of unwilling witnesses;
(6) the relative means of the parties; (7) a forum’s familiarity with the
governing law; (8) the weight accorded a plaintiff’s choice of forum;
and (9) trial efficiency and the interests of justice, based on the totality
of the circumstances.
Manuel v. Convergys Corp., 430 F.3d 1132, 1135 (11th Cir. 2005).
Other than herself and National Life, Plaintiff has not identified any parties or
potential witnesses who do not live in the Southern District of Mississippi. Three of
Mr. Ellis’s four adult children reside in Gulfport, Mississippi, in the Southern District
This is an appropriate point to note that it is dubious that venue is appropriate in the
Middle District of Alabama. See generally 28 U.S.C. § 1391(b). No Defendant is an Alabama
resident. No evidence or argument has been made that any event, much less a substantial part of
the events, occurred in this district. See § 1391(b)(1)–(2). Moreover, because a substantial part
of the events occurred in the Southern District of Mississippi, Plaintiff cannot rely on
§ 1391(b)(3) to establish venue. See § 1391(b)(3) (allowing a plaintiff to bring an action in a
district in which any defendant is subject to personal jurisdiction with respect to the action, only
if there is “no district in which an action may otherwise be brought” under § 1391(b)(1) or (2)).
The Beneficiary Defendants’ motion to transfer is based on a transfer to an alternative venue for
convenience, pursuant to § 1404(a). See Ford v. Brown, 319 F.3d 1302, 1307 (11th Cir. 2003)
(noting that a motion made under § 1404(a) assumes that venue is proper). Because the
Beneficiary Defendants have not relied on 28 U.S.C. § 1406(a) to argue that venue in this district
is wrong (as opposed to proper but inconvenient), the court analyzes the transfer issue only under
§ 1404(a), just as the Beneficiary Defendants do. It is notable, however, that under § 1406(a), the
court would have reached the same result.
of Mississippi. The address of the Defendant trust is in Gulfport, Mississippi, and the
trustee also resides in Gulfport. And Mr. Ellis’s fourth adult child, Russell W. Ellis,
who is the beneficiary of the trust, lives in Petal, Mississippi, which also is in the
Southern District of Alabama. Additionally, Mr. Ellis’s physicians, whom Plaintiff
references in her Amended Complaint, practice medicine in the Southern District of
Mississippi. Moreover, to the extent that the events surrounding the conservatorship
are relevant for trial, all of those proceedings, including medical examinations and
court appearances, occurred in the Southern District of Mississippi, and the
documents related to those proceedings also are located in this district. Furthermore,
as demonstrated by Defendants, many of the potential, non-party witnesses could not
be compelled to testify in the Middle District of Alabama because they live outside
this court’s subpoena power. See Fed. R. Civ. P. 45(b)(2) & (c)(3). Moreover, the
operative facts underlying Plaintiff’s claims that Mr. Ellis lacked the mental capacity
to change the beneficiary on the policy and that Plaintiff’s removal as a beneficiary
was fraudulent occurred in the Southern District of Mississippi, where Mr. Ellis lived.
In particular, the beneficiary designation change occurred in Gulfport, as did the
Although the choice of forum of the plaintiff is an important consideration
under § 1404(a), courts have given that factor less significance where, as here, the
operative facts underlying the causes of action did not occur within the forum chosen
by the plaintiff and the forum does not encompass the district where the plaintiff
resides. See Gould v. Nat’l Life Ins. Co., 990 F. Supp. 1354, 1358 (N.D. Ala. 1998)
(citing Garay v. BRK Electronics, 755 F. Supp. 1010, 1011 (M.D. Fla. 1991)).
Plaintiff contends that if this case is transferred to Mississippi, the laws of Alabama
would govern this action and that, therefore, this court’s familiarity with its own
state’s laws is a reason to deny a transfer, but she provides no analysis or authority
for her position. (Doc. # 66, at 9.) Assuming without deciding that Plaintiff is
correct, there is no indication from the record that the legal issues are either complex
or novel, and no reason has been given that the Southern District of Mississippi
would not be the appropriate forum to solve the legal issues. No other factors have
been argued by the parties.
Having weighed the factors, the court finds that the situs of operative facts, the
ease of access to sources of proof, the convenience and location of witnesses, and the
unavailability of process to compel the attendance of non-party witnesses for trial
weigh in favor of a transfer to the Southern District of Mississippi. Plaintiff’s choice
of forum and the governing law have only slight weight in this case. Given the
totality of the circumstances, the interest of justice weighs in favor of a transfer. In
sum, the balance of the relevant factors demonstrates that the appropriate venue for
this suit is in the Southern District of Mississippi.
For the foregoing reasons, it is ORDERED as follows:
The Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction
(Doc. # 60), filed by Janet E. Gordon, Elizabeth E. Hanson, John C. Ellis III, and The
Russell W. Ellis Irrevocable Trust, is DENIED;
the alternative motion to transfer (Doc. # 60) is GRANTED, and this
action is TRANSFERRED to the United States District Court for the Southern
District of Mississippi, pursuant to 28 U.S.C. § 1404(a); and
the Clerk of the Court is DIRECTED to take appropriate steps to ensure
that the funds deposited with this court are deposited with the transferee court for
DONE this 30th day of August, 2012.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?