Brennan v. Hawaii, State of, et al

Filing 24

ORDER DENYING DEFENDANT JAMES BRADLEY BLACKBYRD'S MOTION TO DISMISS AND GRANTING HIS MOTION TO TRANSFER VENUE (ECF NO. 10 ) - Signed by JUDGE HELEN GILLMOR on 7/26/2017. "Defendant Blackbyrd's Motion to Dismiss is DEN IED. Defendant Blackbyrd's Motion to Transfer Venue is GRANTED. The Clerk of the Court is DIRECTED to TRANSFER the case and all files herein to the United States District Court for the District of Arizo na." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry [Transferred from hid on 7/27/2017.]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CHRISTOPHER BRENNAN,

)
)
Plaintiff,
)
)
v.
)
)
STATE OF HAWAII; JAMES BRADLEY )
BLACKBYRD; and DOES 1-10,
)
)
Defendants.
)
)
)

CIV. NO. 17-00163 HG-RLP

ORDER DENYING DEFENDANT JAMES BRADLEY BLACKBYRD’S MOTION TO
DISMISS AND GRANTING HIS MOTION TO TRANSFER VENUE (ECF No. 10)
Plaintiff Christopher Brennan filed a lawsuit against the
State of Hawaii and James Bradley Blackbyrd, a former prison
counselor in Arizona.

Plaintiff states that he was convicted of

drug-related offenses in Hawaii and incarcerated in a private
prison located in Arizona.

Plaintiff alleges that while he was

incarcerated, Defendant Blackbyrd forced him into unwanted sexual
encounters during mandatory counseling sessions.
Defendant Blackbyrd filed a motion to dismiss or, in the
alternative, to transfer venue to the District of Arizona.
Defendant Blackbyrd’s Motion to Dismiss is DENIED.
Defendant Blackbyrd’s Motion to Transfer Venue is GRANTED.

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PROCEDURAL HISTORY
On April 10, 2017, Plaintiff Christopher Brennan filed a
Complaint.

(ECF No. 1).

On May 5, 2017, Defendant Blackbyrd filed THE DEFENDANT’S
ANSWER TO THE COMPLAINT.

(ECF No. 7).

On May 15, 2017, Defendant State of Hawaii signed a Waiver
of Service.

(ECF No. 15).

On May 26, 2017, Defendant Blackbyrd filed DEFENDANT JAMES
BRADLEY BLACKBYRD’S FIRST AMENDED ANSWER (ECF No. 9) and
DEFENDANT JAMES BRADLEY BLACKBYRD’S MOTION TO DISMISS OR, IN THE
ALTERNATIVE, FOR CHANGE OF VENUE (ECF No. 10).
On June 1, 2017, a hearing for Defendant Blackbyrd’s Motion
was set for June 30, 2017.

(ECF No. 11).

On June 9, 2017, Plaintiff filed PLAINTIFF’S OPPOSITION TO
“DEFENDANT JAMES BRADLEY BLACKBYRD’S MOTION TO DISMISS OR, IN THE
ALTERNATIVE, FOR A CHANGE OF VENUE.”

(ECF No. 13).

On June 26, 2017 Defendant Blackbyrd filed his reply.

(ECF

No. 14).
On June 28, 2017, the Court granted a request from
Plaintiff’s Attorney Myles Breiner to continue the hearing date.
The hearing was continued to July 6, 2017, at 2:30 PM.

(ECF No.

16).
The morning of July 6, 2017, the Court modified the hearing
time from 2:30 PM to 3:00 PM to accommodate Mr. Breiner.
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(ECF

No. 17).

At 3:30 PM, Mr. Breiner had not appeared.

The Court

inquired of Defendant Blackbyrd’s Counsel if he would be
agreeable to forego Oral Argument on his motion.
Blackbyrd’s Counsel agreed.

(ECF No. 18).

Defendant

The Court took the

matter under submission and chose to decide the matter without a
hearing pursuant to Local Rule 7.2(d).
On July 14, 2017, Defendant State of Hawaii filed DEFENDANT
STATE OF HAWAII’S MOTION TO DISMISS (ECF No. 19) and DEFENDANT
STATE OF HAWAII’S NOTICE OF JOINDER IN DEFENDANT JAMES BRADLEY
BLACKBYRD’S MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR CHANGE
OF VENUE (ECF No. 20).
BACKGROUND
Plaintiff was arrested in Hawaii on drug-related charges.
The Hawaii State Court sentenced Plaintiff to a period of
incarceration.

The State of Hawaii incarcerated Plaintiff

Brennan at the Saguaro Correctional Facility (“Saguaro”) located
in Eloy, Arizona.

(Complaint at p. 2, ECF No. 1).

Plaintiff alleges Defendant Blackbyrd worked as a counselor
at Saguaro.

Plaintiff alleges that he was required to attend

counseling while incarcerated.

(Id. at p. 4).

Plaintiff claims

Defendant Blackbyrd told him during a private counseling session
that he had to cooperate or Plaintiff would end up in solitary
confinement.

(Id. at p. 5).

Plaintiff alleges that Defendant

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Blackbyrd coerced him into sexual acts on four separate
occasions.

(Id. at pp. 5-6).

Plaintiff filed the complaint against the State of Hawaii
and Blackbyrd in the United States District Court for the
District of Hawaii.
Defendant Blackbyrd moves for dismissal, or, in the
alternative, for a change of venue to Arizona. (ECF No. 10).
The State of Hawaii moves for dismissal (ECF No. 19) and
moves to join Blackbyrd’s motion (ECF No. 20).
The Court will address the Motions filed by the State of
Hawaii in a separate Minute Order.
STANDARD OF REVIEW
When a defendant moves to dismiss for lack of personal
jurisdiction, the plaintiff bears the burden of demonstrating
that the court has jurisdiction.

Harris Rutsky & Co. Ins.

Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1128–29 (9th
Cir. 2003).

Where, as here, a district court rules on the issue

of jurisdiction by relying on affidavits and discovery materials,
the plaintiff must make a prima facie showing of personal
jurisdiction.

Am. Tel. & Tel. Co. v. Compagnie Bruxelles

Lambert, 94 F.3d 586, 588 (9th Cir. 1996).

Although the

plaintiff cannot simply rest on the bare allegations of its
complaint, uncontroverted allegations in the complaint must be

4

taken as true.

Schwarzenegger v. Fred Martin Motor Co., 374 F.3d

797, 800 (9th Cir. 2004).

Conflicts between parties over

statements contained in affidavits must be resolved in the
plaintiff’s favor.

Pebble Beach Co. v. Caddy, 453 F.3d 1151,

1154 (9th Cir. 2006).

Any evidentiary materials submitted on the

motion are construed in the light most favorable to the plaintiff
and all doubts resolved in the plaintiff’s favor.

Ochoa v. J.B.

Martin & Sons Farms, Inc., 287 F.3d 1182, 1187 (9th Cir. 2002).
Where there is no applicable federal statute governing
personal jurisdiction, the district court applies the law of the
state in which the district court sits.

See Fed. R. Civ. P.

4(k)(1)(A); Panavison Int’l, L.P. v. Toeppen, 141 F.3d 1316, 1320
(9th Cir. 1998).

Because Hawaii's long-arm jurisdictional

statute is coextensive with federal due process requirements, the
jurisdictional analyses under state law and federal due process
are the same.

Hawaii Forest & Trial Ltd. v. Davey, 556 F.Supp.2d

1162, 1168 (D.Haw. 2008).
For the exercise of jurisdiction to satisfy due process, a
nonresident defendant, if not present in the forum, must have
minimum contacts with the forum such that the assertion of
jurisdiction does not offend traditional notions of fair play and
substantial justice.
316 (1945).

Int'l Shoe Co. v. Washington, 326 U.S. 310,

A federal district court may exercise either general

or specific personal jurisdiction.

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See Helicopteros Nacionales

de Colombia, S.A. v. Hall, 466 U.S. 408, 414–15 (1984).
General Jurisdiction

To establish general jurisdiction, the plaintiff must
demonstrate that the defendant has sufficient contacts to
“constitute the kind of continuous and systematic general
business contacts that approximate physical presence.”

Glencore

Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 F.3d
1114, 1124 (9th Cir. 2002) (internal quotation marks omitted).
General jurisdiction for an individual is only available in
the state of the individual's domicile.

Goodyear Dunlop Tires

Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011).
Specific Jurisdiction
The Ninth Circuit Court of Appeals created a three-part test
to analyze whether a party's “minimum contacts” meet the due
process standard for the exercise of specific personal
jurisdiction:
(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
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(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.
If any of the three requirements of the test are not
satisfied, jurisdiction in the forum would deprive the defendant
of due process of law.

In re Western States Wholesale Natural

Gas Antitrust Litigation, 715 F.3d 716, 742 (9th Cir. 2013).
While all three requirements must be met, the Ninth Circuit Court
of Appeals has stated that in its consideration of the first two
prongs, a strong showing on one axis will permit a lesser showing
on the other.

Yahoo! Inc. v. La Ligue Contre Le Racisme Et

L'Antisemitisme, 433 F.3d 1199, 1210 (9th Cir. 2006) (en banc).
A single forum state contact can support jurisdiction if the
cause of action arises out of that particular purposeful contact
of the defendant with the forum state.

Id.

ANALYSIS
I.

Defendant Blackbyrd Did Not Waive His Rule 12(b) Defenses

Plaintiff argues that Defendant Blackbyrd submitted to
jurisdiction in the District of Hawaii by filing an answer.
(Opposition at p.5, ECF No. 13-1).
The Federal Rule of Civil Procedure 12(b) includes defenses
that must be asserted in the responsive pleading or an initial
motion.

Rule 12(h)(1)(B)(ii) allows for 12(b) defenses to be

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asserted in a responsive pleading or in an amendment allowed by
Rule 15(a)(1).

Rule 15(a)(1)(A) provides that a party may amend

its pleading once as a matter of course within 21 days after
serving it.
Defendant Blackbyrd filed an answer on May 5, 2017, which
challenged venue in Hawaii.

(Answer at p. 3, ECF No. 7).

Defendant Blackbyrd amended his Answer and filed his Motion to
Dismiss on May 26, 2017, within the 21 day period as set forth in
Rule 15.

(Amended Answer, ECF No. 9).

Defendant Blackbyrd’s

Amended Answer raised the Rule 12(b) defenses of lack of personal
jurisdiction, improper venue, and insufficient process.
¶¶ 25-27).

(Id. at

Defendant Blackbyrd’s Motion to Dismiss alleges the

grounds of lack of personal jurisdiction and improper venue.
(Motion to Dismiss at pp. 4-22, ECF No. 10).

Defendant Blackbyrd

has not submitted to jurisdiction by filing his responsive
pleadings or his Motion to Dismiss.
II.

Personal Jurisdiction in Hawaii Does Not Exist as to
Blackbyrd
A.

General Jurisdiction

General jurisdiction for individuals is based on the
individual’s domicile.
564 U.S. at 924.

Goodyear Dunlop Tires Operations, S.A.,

Blackbyrd is a resident of Arizona.

at p. 3, ECF No. 1).

The Court does not have general

jurisdiction over Defendant Blackbyrd.
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(Complaint

B.

Specific Jurisdiction

The Ninth Circuit Court of Appeals has created a three part
test to determine if specific personal jurisdiction is proper
over an out-of-state defendant.

Schwarzenegger, 374 F.3d at 802.

First, a defendant must have purposefully directed his
activities or purposefully availed himself of the privileges of
conducting business in the forum.

Mavrix Photo, Inc. v. Brand

Techs., Inc., 647 F.3d 1218, 1227-28 (9th Cir. 2011).

The second

prong requires that the claim be one that arises out of or
relates to the defendant’s forum-related activities.

Id.

The

third prong requires that the exercise of jurisdiction be
reasonable.
1.

Id.
Purposeful Direction

The first prong of the Schwarzenegger test examines if a
defendant “purposefully directed his activities or consummated
some transaction with the forum or resident thereof or performed
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.”

Mavrix Photo, Inc., 647

F.3d at 1227-28.
The proper focus of the minimum contacts inquiry in an
intentional-torts case is the relationship between the defendant,
the forum, and the litigation.

Walden v. Fiore, 134 S. Ct. 1115,
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1126 (2014).

The relationship to the forum must arise out of the

contacts of the defendant himself.

Id. at 1122.

The minimum

contacts analysis looks at the defendant’s contacts with the
forum State itself, not the defendant’s contacts with persons who
reside there.

Id.

Plaintiff alleges that Defendant Blackbyrd forced him into
unwanted sexual encounters in Arizona.

Plaintiff has failed to

offer any proof that Defendant Blackbyrd has ever traveled to,
conducted activities within, contacted anyone in, or sent
anything to Hawaii.

See id. at 1124.

Defendant Blackbyrd’s actions in Arizona did not create
sufficient contacts with Hawaii simply because he allegedly
directed his conduct at Plaintiff, who he may have known had
Hawaii connections.

See id at 1125 (“Petitioner's actions in

Georgia did not create sufficient contacts with Nevada simply
because he allegedly directed his conduct at plaintiffs whom he
knew had Nevada connections.”).

Plaintiff has failed to show

Defendant Blackbyrd has had contacts with Hawaii.
2.

Arising Out of Forum-Related Activities

The second prong requires that the claim arise out of or be
related to the defendant’s forum-related activities.

Mavrix

Photo, Inc., 647 F.3d at 1227-28.
This prong is not met because Defendant Blackbyrd does not

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have forum-related activities.
The first two prongs of the Schwarzenegger test have not
been established.
3.

Reasonableness

The final prong of the Schwarzenegger test states that “the
exercise of jurisdiction must comport with fair play and
substantial justice, i.e. it must be reasonable.”
Inc., 647 F.3d at 1227-28.

Mavrix Photo,

It would be unreasonable to find

specific jurisdiction when Defendant Blackbyrd has not met the
first two prongs of the test for specific jurisdiction.

See In

re Western States Wholesale Natural Gas Antitrust Litigation, 715
F.3d at 742.
III.

The Interest of Justice calls for the Transfer of the
Case Rather than Dismissal

Venue in the District of Hawaii is improper due to lack of
personal jurisdiction over Defendant Blackbyrd.

Where, as here,

a plaintiff files suit in the wrong district court, the district
court must “dismiss, or if it be in the interest of justice,
transfer the case to any district . . . in which it could have
been brought.”

28 U.S.C. § 1406(a).

In determining if an action should be transferred in the
interests of justice, courts may consider:
(1)

the convenience of parties;
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(2)

the convenience of witnesses;

(3)

the relative ease of access to evidence and the
location of operative facts;

(4)

the availability of process to compel attendance
of unwilling witnesses;

(5)

the cost of obtaining willing witnesses;

(6)

the practical problems indicating where the action
can be tried more expeditiously and inexpensively
(e.g. calendar congestion); and

(7)

the totality of the circumstances.

Gong v. Penatta, No. 1:11 CV 02044 AWI, 2012 WL 761730, at
*3 (E.D. Cal. Mar. 6, 2012)(quoting French Transit, Ltd. v.
Modern Coupon Systems, Inc., 858 F. Supp. 22, 27 (S.D.N.Y.
1994)).
The seven factors favor venue in the District of Arizona.
The individual parties in this case are from Nevada and Arizona.
Defendant Blackbyrd is a resident of Arizona.
the alleged conduct are all in Arizona.
alleged misconduct is in Arizona.
appear favors Arizona.

The witnesses of

The evidence of the

The cost to have witnesses

The action can be tried most

expeditiously and inexpensively in the District of Arizona.

The

totality of the circumstances favors venue transferring to the
District of Arizona.
Transfer to the District of Arizona is proper.
Blackbyrd’s motion to transfer venue is GRANTED.

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Defendant

CONCLUSION

Defendant Blackbyrd’s Motion to Dismiss is DENIED.
Defendant Blackbyrd’s Motion to Transfer Venue is GRANTED.
The Clerk of the Court is DIRECTED to TRANSFER the case and
all files herein to the United States District Court for the
District of Arizona.

IT IS SO ORDERED.
DATED: July 26, 2017, at Honolulu, Hawaii.

Christopher Brennan v. State of Hawaii; James Bradley Blackbyrd;
Does 1-10; Civ No. 17-00163 HG-RLP; ORDER DENYING DEFENDANT JAMES
BRADLEY BLACKBYRD’S MOTION TO DISMISS AND GRANTING HIS MOTION TO
TRANSFER VENUE (ECF No. 10)
13