Lane v. Buckley et al

Filing 37

ORDER granting in part Motion to Transfer, or in the Alternative, Motion to Dismiss (Doc. 7 ). The Motion to Transfer is granted; the alternative Motion to Dismiss is denied. FURTHER ORDERED granting in part Lane Defendants' Motion to Transfer, or in the Alternative, Motion to Dismiss (Doc. 9 ). The Motion to Transfer is granted; the alternative Motion to Dismiss is denied. IT IS ORDERED transferring this case to the U.S. District Court for the District of Wyoming. Because this Court find s that it has no jurisdiction over the Defendants, the Court takes no action on the following motions pending in the case: Plaintiff's Emergency Motion to Approve Preliminary Injunction to Preserve Plaintiff's Pension and IRA Monies (Doc. [ 27]); Defendants' Motion to Extend Deadline to Respond to Plaintiff's Motion for Preliminary Injunction (Doc. 30 ); Lane Defendants' Notice of Joinder in Motion to Extend Deadline to Respond to Plaintiff's Motion for Preliminary Injunction (Doc. 33 ); and Plaintiff's Motion for Default Judgment against Defendants Colleen Lane and Patricia Lane to Approve Preliminary Injunction to Preserve Plaintiff's Pension and IRA Monies (Doc. 32 ). Signed by Magistrate Judge Eileen S Willett on 9/3/2015. (KMG)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Robert M. Lane, No. CV-15-01119-PHX-ESW Plaintiff, 10 11 v. 12 ORDER Lucas E. Buckley, et al., 13 Defendants. 14 15 Pending before the Court are the fully briefed Motion to Transfer, or in the 16 Alternative, Motion to Dismiss (Doc. 7) and Lane Defendants’ Motion to Transfer, or in 17 the Alternative, Motion to Dismiss (Doc. 9). 18 jurisdiction over all Defendants, the Motions to Transfer (Doc. 7 and Doc. 9) will be 19 granted pursuant to 28 U.S.C. § 1631. The Court will transfer the case to the United 20 States District Court for the District of Wyoming. 21 Because this Court lacks personal Procedural History and Factual Background 22 Plaintiff is a citizen of Nevada (Doc. 1-1 at 5). Plaintiff filed a pro se First 23 Amended Complaint in Maricopa County Superior Court on May 11, 2015, alleging 24 Breach of Fiduciary Duty, Fraud and Misrepresentation, Legal Malpractice, Conspiracy 25 to Commit a Fraudulent Scheme, Rescission and Restitution, Fraudulent Transfers, and 26 Breach of Contract Enforced by Third Party Beneficiary. (Doc. 1-1 at 2-27). 27 Defendant is a citizen of Arizona. (Doc. 1-1 at 5-7). By timely Notice of Removal filed 28 June 17, 2015 pursuant to 28 U.S.C. § 1446(b), the case was removed to U.S. District No 1 Court for the District of Arizona. (Doc. 1). All Defendants have been served. (Doc 1 2 and Doc. 6). All Defendants except Defendant DFWU, LLC have filed a responsive 3 pleading.1 4 The District Court has original subject matter jurisdiction as Plaintiff seeks 5 damages in excess of $75,000, and there is diversity of citizenship. See 28 U.S.C.A. § 6 1332(a)(1). 7 Wyoming because Arizona lacks personal jurisdiction over all appearing Defendants. However, moving Defendants request that the case be transferred to 8 The case itself arises from a February 25, 2013 settlement reached as part of 9 Plaintiff’s Chapter 7 bankruptcy proceeding held in the United States Bankruptcy Court 10 for the District of Wyoming. The bankruptcy trustee identified two trusts and a limited 11 liability corporation wholly owned by one of the trusts as property of Plaintiff’s 12 bankruptcy estate. 13 pursuant to a settlement agreement reached, which Plaintiff references as the Turn Over 14 Agreement. Plaintiff has filed his First Amended Complaint alleging that the trust assets 15 should not have been turned over to the bankruptcy trustee. 16 Assets of the trusts were turned over to the bankruptcy trustee Of significance to a determination of the pending motions is the fact that none of 17 the parties are citizens of Arizona. 18 transactions giving rise to the First Amended Complaint occurred in Arizona. Nor were 19 the Chapter 7 bankruptcy proceedings held in Arizona. In fact, none of the acts or 20 omissions set forth in the First Amended Complaint allegedly giving rise to the Plaintiff’s 21 claims occurred in Arizona. The only reason Plaintiff has filed in Arizona appears to be 22 because the two trusts which are not named parties to the action were allegedly domiciled 23 in Arizona. 24 25 In addition, none of the alleged settlement Discussion Pursuant to 28 U.S.C. § 1631, the District Court can transfer a civil case initiated 26 1 27 28 Defendant DFWU, LLC is alleged to be a sham defendant or fraudulently joined. See Notice of Removal (Doc. 1 at 3). Plaintiff filed an Acceptance and Waiver of Service as manager for Defendant DFWU, LLC (Doc. 1-2 at 7-8), and Plaintiff states in the First Amended Complaint that Plaintiff is not asserting a claim against Defendant DFWU, LLC. (Doc. 1-1 at 6-7). DWFU, LLC is a Delaware Limited Liability Corporation. Id. -2- 1 in one district to another if three conditions are met: (1) the transferring court lacks 2 jurisdiction; (2) the receiving court could have exercised jurisdiction at the time the 3 action was filed; and (3) the transfer is in the interests of justice. See Kolek v. Engen, 869 4 F.2d 1281, 1284 (9th Cir. 1989). 5 The burden of proof for establishing jurisdiction lies with the Plaintiff. Cubbage 6 v. Merchent, 744 F.2d 665, 667 (9th Cir. 1984), cert denied, 470 U.S. 1005 (1985). The 7 Court finds, assuming as true all the material factual allegations set forth in Plaintiff’s 8 First Amended Complaint and foundationally sound facts set forth by affidavit, that 9 Plaintiff has failed to meet his burden of proof regarding personal jurisdiction over the 10 Defendants in Arizona. 11 The Court may exercise jurisdiction over a defendant in Arizona if the defendant 12 is personally present in Arizona or if the defendant has “minimum contacts” with Arizona 13 such that asserting jurisdiction satisfies due process and “does not offend traditional 14 notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 15 316-318 (1945). The Court finds as to each appearing Defendant that Plaintiff has failed 16 to prove minimum contacts with Arizona. Nor are any of the Defendants physically 17 present in Arizona. The actions, omissions, and transactions giving rise to the lawsuit 18 allegedly occurred in Wyoming. Plaintiff’s claims arise from the Turn Over Agreement, 19 which was entered into in Wyoming as part of a U.S. Bankruptcy Court proceeding and 20 was approved by the Wyoming Bankruptcy Court. The Defendants never purposefully 21 availed themselves of the privilege of conducting activity in Arizona such that they 22 should “reasonably anticipate” being brought into court here. 23 Rudzewicz, 471 U.S. 462, 474 (1985) (citing World-Wide Volkswagen Corp. v. Woodson, 24 444 U.S. 286, 295 (1980)). Plaintiff’s causes of action do not arise out of any of the 25 Defendants’ alleged Arizona related activities such that Defendants are subject to specific 26 jurisdiction. See Doe v. Unocal Corp, 248 F.3d 915, 923 (9th Cir. 2001). An exercise of 27 specific jurisdiction by Arizona would not be reasonable. Id. Nor are any of the 28 Defendants’ activities in Arizona so “substantial, continuous and systemic” that the Court -3- See Burger King v. 1 could conclude the Defendants are subject to general jurisdiction on matters unrelated to 2 Defendants’ contacts with Arizona. See Doe v. Unocal, 248 F.3d at 923 (citing Perkins v. 3 Benquet Consolidated Mining Co., 341 U.S. 437-446 (1952)). 4 The Court further finds that the Wyoming District Court could have exercised 5 jurisdiction at the time the case was filed. 6 Dyekman, Reed & Healey, P.C.; Gregory C. Dyekman; Hathaway and Kunz, P.C.; and 7 Scott Meier, CPA, are all citizens of Wyoming. None of the Defendants share citizenship 8 with the Plaintiff. 9 citizens of Connecticut, Illinois, and South Carolina, respectively. Therefore, Wyoming 10 has subject matter jurisdiction based on diversity of citizenship. 28 U.S.C.A. § 1332. In 11 addition, a substantial part of the acts or omissions giving rise to Plaintiff’s claims 12 occurred in Wyoming. Id. Defendants Lucas E. Buckley; Dray, Defendants Colleen Lane, Matthew Lane, and Patricia Lane are 13 Finally, the Court concludes that transfer, rather than dismissal, is in the interests 14 of justice. The Court notes that the Plaintiff appears pro se. To dismiss the case and 15 require Plaintiff to re-file could prejudice Plaintiff. Dismissal is also time-consuming, 16 expensive, and causes unnecessary delay. Though Plaintiff prefers to proceed in Arizona 17 for the reasons set forth in his briefing, the Court finds that the interests of justice require 18 the case to proceed in Wyoming. See Goldlawr, Inc. v. Heiman, 369 U.S. 463, 467 19 (1962); Cruz-Aguilera v. I.N.S., 245 F.3d 1070, 1074 (9th Cir. 2001). 20 Conclusion 21 IT IS ORDERED granting in part Motion to Transfer, or in the Alternative, 22 Motion to Dismiss (Doc. 7). The Motion to Transfer is granted; the alternative Motion to 23 Dismiss is denied. 24 IT IS FURTHER ORDERED granting in part Lane Defendants’ Motion to 25 Transfer, or in the Alternative, Motion to Dismiss (Doc. 9). The Motion to Transfer is 26 granted; the alternative Motion to Dismiss is denied. 27 28 IT IS ORDERED transferring this case to the U.S. District Court for the District of Wyoming. -4- 1 Because this Court finds that it has no jurisdiction over the Defendants, the Court 2 takes no action on the following motions pending in the case: Plaintiff’s Emergency 3 Motion to Approve Preliminary Injunction to Preserve Plaintiff’s Pension and IRA 4 Monies (Doc. 27); Defendants’ Motion to Extend Deadline to Respond to Plaintiff’s 5 Motion for Preliminary Injunction (Doc. 30); Lane Defendants’ Notice of Joinder in 6 Motion to Extend Deadline to Respond to Plaintiff’s Motion for Preliminary Injunction 7 (Doc. 33); and Plaintiff’s Motion for Default Judgment against Defendants Colleen Lane 8 and Patricia Lane to Approve Preliminary Injunction to Preserve Plaintiff’s Pension and 9 IRA Monies (Doc. 32). 10 Dated this 3rd day of September, 2015. 11 12 13 Honorable Eileen S. Willett United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-

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