Spagnolo v. Nadic Network Certified Dentists et al

Filing 61

ORDER (1) Adopting Findings And Recommendation To Deny Plaintiff's Motion For Default Judgment, (2) Granting Defendant Lousignont's Motion To Dismiss For Lack of Personal Jurisdiction, (3) Denying Plaintiff's Motion For Transfer of Ven ue, And (4) Denying Other Motions as Moot re 35 , 37 , 39 , 40 , 58 60 , 18 . Signed by JUDGE J. MICHAEL SEABRIGHT on 12/1/11. (gls, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifica tions 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

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
NICK SPAGNOLO,

)
)
Plaintiff,
)
)
vs.
)
)
NADIC NETWORK CERTIFIED
)
DENTISTS, DR. ADAM
)
LOUSIGNONT, DR. GREGORY
)
MORITZ, DR. JAY,
)
)
Defendants.
)
)
_______________________________ )

CIVIL NO. 11-00340 JMS/RLP
ORDER (1) ADOPTING FINDINGS
AND RECOMMENDATION TO
DENY PLAINTIFF’S MOTION FOR
DEFAULT JUDGMENT,
(2) GRANTING DEFENDANT
LOUSIGNONT’S MOTION TO
DISMISS FOR LACK OF PERSONAL
JURISDICTION, (3) DENYING
PLAINTIFF’S MOTION FOR
TRANSFER OF VENUE, AND
(4) DENYING OTHER MOTIONS AS
MOOT

ORDER (1) ADOPTING FINDINGS AND RECOMMENDATION TO DENY
PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT, (2) GRANTING
DEFENDANT LOUSIGNONT’S MOTION TO DISMISS FOR LACK OF
PERSONAL JURISDICTION, (3) DENYING PLAINTIFF’S MOTION FOR
TRANSFER OF VENUE, AND (4) DENYING OTHER MOTIONS AS
MOOT
I. INTRODUCTION
Plaintiff Nick Spagnolo (“Plaintiff”), proceeding pro se, filed this
malpractice action in this court based on diversity of citizenship against
Defendants Nadic Network Certified Dentists (“Nadic”),1 Dr. Adam Lousignont

1

“Nadic” stands for “North American Dental Implants & Cosmetics.” Doc. No. 6-1 at 9,
Am. Compl. Ex. 4.

(“Lousignont”), Dr. Gregory Moritz (“Moritz”), and Dr. Jay (“Jay”) (collectively
“Defendants”), alleging defective dental work performed in Las Vegas, Nevada.
Several matters are before the court. After service of the Amended
Complaint was attempted, Plaintiff filed a Motion for Entry of Default Judgment,
which U.S. Magistrate Judge Richard L. Puglisi recommended be denied in a
Findings and Recommendation of September 21, 2011 (“Findings and
Recommendation”). Doc. No. 39. Meanwhile, Lousignont filed a Motion to
Dismiss for Lack of Personal Jurisdiction. Doc. No. 18. Plaintiff responded to that
Motion, in part, by filing a Motion to Transfer Venue to the District of Nevada.
Doc. No. 40. Plaintiff also filed Motions seeking to withdraw or strike the jury
demand from his Amended Complaint. Doc. Nos. 35, 37.
Based on the following, the court (1) ADOPTS the Findings and
Recommendation to Deny Plaintiff’s Motion for Entry of Default, (2) GRANTS
Lousignont’s Motion to Dismiss for Lack of Personal Jurisdiction without
prejudice, (3) DENIES Plaintiff’s Motion to Transfer Venue, and (4) DENIES the
Motions seeking to withdraw or strike jury demand without prejudice as moot.2

2

Because the action is being dismissed without prejudice for lack of jurisdiction,
Plaintiff’s recently-filed Motion for Summary Judgment, Doc. No. 58, is also DENIED as
MOOT.
2

II. BACKGROUND
Construing Plaintiff’s Amended Complaint liberally, Plaintiff seeks
damages for negligence and/or breach of contract for “failing to refund monies, as
promised in writing, previously paid for a defective bridge.” Doc. No. 6, Am.
Compl. ¶ 2. Plaintiff seeks damages for “pain management, visits to dentists for
continued treatment, the full cost for both immediate and permanent repairs, and
any possible balance for 200 days of pain.” Id. Although the allegations are not
clear, Plaintiff alleges that some or all Defendants were involved in “the creation of
a defective bridge, cast impression three to six months premature, four damaged
teeth, and refused to treat pain.” Id. ¶ 3. Plaintiff describes the basis of his action,
in part, as follows:
The bridge purchased does not fit properly, it is crooked
and does not meet at the gum line. Four teeth are
permanently damaged and must be repaired to eliminate
pain. Procedural mistakes include making cast
impressions for a permanent bridge only one half hour
after pulling two teeth. Cutting to the point nearing total
destruction four teeth; which was after the act was
performed, described by the attending dentist as
“prepped.”
Id. at 4, ¶ 1-b.
All Defendants reside in Nevada. Id. ¶ 2. All the dental work was
performed in Nevada. Doc. No. 6-1, Am. Compl. Ex. 2; Doc. No. 26, Pl.’s Opp’n
3

at 1. No Defendant is alleged to have an office in Hawaii or otherwise to have
transacted business in Hawaii. When the Amended Complaint was filed Plaintiff
alleged that he “resides” in Hawaii, although it is unclear whether he lived in
Hawaii when the dental work occurred in October 2010, as the record indicates he
may have been living in Nevada or Pennsylvania at that time. See Doc. Nos. 46-1
to 46-3. In any event, the only link to Hawaii appears to be Plaintiff’s residence.
(And Plaintiff has since moved to Las Vegas, Nevada. Doc. No. 49, Pl.’s Notice of
Change of Address.)
Plaintiff filed his Amended Complaint on June 13, 2011. Doc. No. 6.
On August 17, 2011, he filed a Motion for Default Judgment (without first having
obtained entry of default). Doc. No. 22. Lousignont filed his Motion to Dismiss
for Lack of Personal Jurisdiction that same day. Doc. No. 18. Plaintiff filed his
Opposition to the Motion to Dismiss on August 29, 2011, Doc. No. 26, and
Lousignont filed his Reply on September 29, 2011. Doc. No. 46.
Meanwhile, on September 21, 2011, Magistrate Judge Puglisi issued
his Findings and Recommendation to Deny Plaintiff’s Motion for Default
Judgment. Doc. No. 39. Plaintiff filed Objections to the Findings and

4

Recommendation on September 27, 2011. Doc. No. 42. He also filed a Motion to
Transfer Venue on September 23, 2011. Doc. No. 40.3
A hearing was held on these various Motions on October 24, 2011.
At the hearing, the court issued an Order to Show Cause why the entire action
should not be dismissed for lack of personal jurisdiction. Responses to the Order
to Show Cause were filed on November 14, 2011 and November 22, 2011. Doc.
Nos. 54 & 57.
III. STANDARDS OF REVIEW
A.

Objections to Findings and Recommendation
When a party objects to a magistrate judge’s findings or

recommendations, the district court must review de novo those portions to which
the objections are made and “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673 (1980); United
States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (“[T]he
district judge must review the magistrate judge’s findings and recommendations de
novo if objection is made, but not otherwise.”). Under a de novo standard, this

3

On September 14, 2011, Plaintiff also filed a Motion to Withdraw Demand for Jury
Trial. Doc. No. 35. On September 20, 2011, he filed a similar Motion to Strike Jury Trial
Demand. Doc. No. 37.
5

court reviews “the matter anew, the same as if it had not been heard before, and as
if no decision previously had been rendered.” Freeman v. DirecTV, Inc., 457 F.3d
1001, 1004 (9th Cir. 2006); United States v. Silverman, 861 F.2d 571, 576 (9th Cir.
1988). The district court need not hold a de novo hearing; however, it is the
court’s obligation to arrive at its own independent conclusion about those portions
of the magistrate judge’s findings or recommendation to which a party objects.
United States v. Remsing, 874 F.2d 614, 616 (9th Cir. 1989).
B.

Motion to Dismiss for Lack of Personal Jurisdiction
“Where a defendant moves to dismiss a complaint for lack of personal

jurisdiction, the plaintiff bears the burden of demonstrating that jurisdiction is
appropriate.” Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th
Cir. 2004); Dole Foods Co. v. Watts, 303 F.3d 1104, 1108 (9th Cir. 2002).
“However, this showing requires that the plaintiff ‘make only a prima facie
showing of jurisdictional facts to withstand the motion to dismiss.’” Menken v.
Emm, 503 F.3d 1050, 1056 (9th Cir. 2007) (quoting Doe v. Unocal Corp., 248 F.3d
915, 922 (9th Cir. 2001)). While the plaintiff cannot “simply rest on the bare
allegations of its complaint . . . , uncontroverted allegations in the complaint must
be taken as true,” and all disputed facts must be resolved in favor of the plaintiff.
Id. (citation and quotation signals omitted).
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IV. DISCUSSION
A.

Motion for Default Judgment
By this Motion, Plaintiff seeks default judgment against Defendants

Moritz, Lousignont, Jay, and Nadic. Magistrate Judge Puglisi recommended that
the Motion be denied because (1) Moritz and Jay had not been properly served,
(2) Lousignont had filed a timely Motion to Dismiss for Lack of Personal
Jurisdiction, and (3) the court lacks personal jurisdiction over Nadic. Doc. No. 39,
Findings & Recommendation, at 6-8, 15.
Initially, the court recognizes that Plaintiff had not obtained an entry
of default prior to filing his Motion for Default Judgment. An entry of default
under Federal Rule of Civil Procedure 55(a) is required before obtaining a default
judgment. “Rule 55 requires a ‘two-step process,’ consisting of: (1) seeking the
clerk’s entry of default, and (2) filing a motion for entry of default judgment.”
Hofelich v. Hawaii, 2011 WL 1438096, at *1 (D. Haw. Apr. 14, 2011) (Findings
and Recommendation adopted on May 6, 2011) (citing Eitel v. McCool, 782 F.2d
1470, 1471 (9th Cir. 1986) (“Eitel apparently fails to understand the two-step
process required by Rule 55.”) and Symantec Corp. v. Global Impact, Inc., 559
F.3d 922, 923 (9th Cir. 2009) (noting “the two-step process of ‘Entering a Default’
and ‘Entering a Default Judgment’”)). See also Francis v. J.C. Penney Corp., 2009
7

WL 3761999, at *1 (W.D. Wash. Nov. 6, 2009) (denying motion for default
judgment as premature where “plaintiff did not seek entry of default pursuant to
Rule 55(a) prior to filing the motion for entry of default judgment pursuant to Rule
55(b)”). This failure to obtain entry of default is an independent basis to deny
Plaintiff’s Motion for Default Judgment.
Further, upon de novo review, the court agrees with Magistrate Judge
Puglisi’s Findings that Plaintiff did not properly serve Moritz and Jay, and that
Lousignont filed a timely Motion to Dismiss in lieu of an answer. The court thus
agrees that, even if Plaintiff had obtained entry of default, it would be improper to
allow default judgment to enter. See Fed. R. Civ. P. 55; Eitel, 782 F.2d at 1471
(applying the two-step process required by Rule 55).
The court also agrees with Magistrate Judge Puglisi, upon de novo
review, that the court lacks personal jurisdiction over Nadic. Plaintiff objects that
“the defendants must argue personal jurisdiction themselves[.]” Doc. No. 42, Pl.’s
Obj. at 1. Indeed, “[i]n most circumstances, a defect in personal jurisdiction is a
defense that may be asserted or waived by a party[.]” In re Tuli, 172 F.3d 707, 712
(9th Cir. 1999) (citing Fed. R. Civ. P. 12(h)(1)). However, “when a court is
considering whether to enter a default judgment, it may dismiss an action sua
sponte for lack of personal jurisdiction.” Id.
8

The court analyzes why it lacks personal jurisdiction over Nadic -and thus concludes that default judgment would be improper as to Nadic -- in
conjunction with its consideration of Lousignont’s Motion to Dismiss for Lack of
Personal Jurisdiction.
B.

Personal Jurisdiction
Lousignont, making a special appearance, argues that the court lacks

personal jurisdiction over him. He argues -- and the record is undisputed in this
regard -- that he resides in Nevada, which is his principal place of business, and he
does not practice dentistry in Hawaii. The dental treatment occurred in Nevada.
He conducted no business in Hawaii. He thus contends that exercising jurisdiction
over him would violate due process. See, e.g., Int’l Shoe Co. v. Washington, 326
U.S. 310, 316 (1945).
Personal jurisdiction over an out-of-state defendant is proper if
permitted by a state’s long-arm statute and if the exercise of that jurisdiction does
not violate due process. See, e.g., Fireman’s Fund Ins. Co. v. Nat’l Bank of
Coops., 103 F.3d 888, 893 (9th Cir. 1996). Hawaii’s long-arm statute, Hawaii
Revised Statutes (“HRS”) § 634-35, extends to the full extent permitted by the
Constitution. Cowan v. First Ins. Co., 61 Haw. 644, 649 n.4, 608 P.2d 394, 399
n.4 (1980). The court thus focuses on whether due process principles permit the
9

exercise of personal jurisdiction over Defendants. See Schwarzenegger, 374 F.3d
at 801.
“A court may exercise personal jurisdiction over a defendant
consistent with due process only if he or she has ‘certain minimum contacts’ with
the relevant forum such that the maintenance of the suit does not offend ‘traditional
notions of fair play and substantial justice.’” Menken, 503 F.3d at 1056 (quoting
Int’l Shoe Co., 326 U.S. at 316) (some quotation marks omitted).
Unless a defendant’s contacts with a forum are so
substantial, continuous, and systematic that the defendant
can be deemed to be ‘present’ in that forum for all
purposes, a forum may exercise only ‘specific’
jurisdiction -- that is, jurisdiction based on the
relationship between the defendant’s forum contacts and
plaintiff’s claims.
Id. at 1056-57.
Here, it cannot be disputed that neither Lousignont nor Nadic was
“present” in Hawaii for purposes of establishing “general jurisdiction.”
Lousignont does not practice here, and has no office here. Nadic also has no office
in Hawaii. Thus, only specific jurisdiction could be at issue -- that is, “jurisdiction
based on the relationship between the defendant’s forum contacts and plaintiff’s
claims.” Id. at 1057.

10

The court conducts a three-part inquiry to determine whether
“minimum contacts” are established for specific 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
(3) the exercise of jurisdiction must comport with fair
play and substantial justice, i.e. it must be reasonable.
Id. (quoting Schwarzenegger, 374 F.3d at 802). “The plaintiff bears the burden of
satisfying the first two prongs of the test. If the plaintiff fails to satisfy either of
these prongs, personal jurisdiction is not established in the forum state.” Id.
(internal citation omitted). “On the other hand, 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.
Plaintiff fails to satisfy the first two prongs. There is no indication
that Lousignont or Nadic (or any other Defendant) purposely directed or availed
themselves of a Hawaii forum. Plaintiff speculates about “phone, fax, and other
possible advertising as was seen on the internet from here in Hawaii.” Doc. No.
11

42, Obj. at 3. But such speculation is insufficient, for “[u]nder a traditional
jurisdictional analysis, advertising in a forum state does not typically suffice to
establish personal jurisdiction.” Boschetto v. Hansing, 539 F.3d 1011, 1018 n.4
(9th Cir. 2008). See also Holland Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d
450, 460 (9th Cir. 2007) (“We consistently have held that a mere web presence is
insufficient to establish personal jurisdiction.”). And nothing in Plaintiff’s claim
can be said to arise out of a Hawaii-related activity. The only connection to
Hawaii appears to have been Plaintiff’s residence.
For similar reasons, it would be unreasonable to exercise personal
jurisdiction over any Defendant. See Menken, 503 F.3d at 1060 (describing seven
balancing factors in assessing the reasonableness prong). Besides the lack of
Hawaii contacts, Nevada law is at issue. Hawaii has little interest in adjudicating a
dispute about Nevada law against Nevada dentists. And the burden would be high
for Nevada defendants to litigate in Hawaii.
Accordingly, the court concludes that it lacks personal jurisdiction
over Lousignont. Lousignont’s Motion to Dismiss is GRANTED. The Amended
Complaint is DISMISSED without prejudice.4 The court also agrees with

4

Because the Amended Complaint is dismissed without prejudice, Plaintiff’s Motions to
Strike or Withdraw Jury Demand, Doc. Nos. 35 &37, are DENIED without prejudice as MOOT.
12

Magistrate Judge Puglisi that the court lacks jurisdiction over Nadic, and thus
ADOPTS the Findings and Recommendation to Deny Plaintiff’s Motion for
Default Judgment. Plaintiff’s Motion for Default Judgment is DENIED.
C.

Plaintiff’s Motion for Transfer of Venue
The court next addresses Plaintiff’s Motion for Transfer of Venue.

Plaintiff seeks to transfer his action to the District of Nevada under 28 U.S.C.
§ 1404(a). The Motion was filed in conjunction with Plaintiff notifying the court
that he changed his address to Nevada, and “in response to the [Findings and
Recommendation to Deny Plaintiff’s Motion for Default Judgment],” Doc. No. 40,
which is where Magistrate Judge Puglisi found a lack of personal jurisdiction.
Plaintiff invokes § 1404(a), which provides that “[f]or the
convenience of parties and witnesses, in the interest of justice, a district court may
transfer any civil action to any other district or division where it might have been
brought.” Unquestionably, it would be more convenient for the parties to litigate
this suit in Nevada. Indeed, it appears venue was never proper in Hawaii under 28
U.S.C. § 1391(a).5 Thus, the more proper transfer provision is 28 U.S.C.
5

Section 1391(a) provides:
A civil action wherein jurisdiction is founded only on diversity of
citizenship may, except as otherwise provided by law, be brought
only in (1) a judicial district where any defendant resides, if all
(continued...)
13

§ 1406(a).6 See Kawamoto v. CB Richard Ellis, Inc., 225 F. Supp. 2d 1209, 1212
(D. Haw. 2002) (“Section 1404(a) generally applies when the transferor court is a
proper venue for the action, while § 1406(a) is generally relied on when venue is
not proper in the forum where a plaintiff originally filed suit.”).
In any event, the court would consider transferring venue even
without a motion given that the court lacks personal jurisdiction over Defendants.
See Ukai v. Fleurvil, 2006 WL 3246615, at *3 (D. Haw. Nov. 7, 2006) (reasoning
that, given a finding of lack of personal jurisdiction “the only matter left for the
court to consider is whether to dismiss the present action or transfer it to another
court”); see also Froelich v. Petrelli, 472 F. Supp. 756, 760 (D. Haw. 1979)
(“[T]his Court has the power to transfer this action in the absence of personal
5

(...continued)
defendants reside in the same State, (2) a judicial district in which
a substantial part of the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the subject of the
action is situated, or (3) a judicial district in which any defendant
is subject to personal jurisdiction at the time the action is
commenced, if there is no district in which the action may
otherwise be brought.

6

Section 1406(a) provides:
The district court of a district in which is filed a case laying venue
in the wrong division or district shall dismiss, or if it be in the
interest of justice, transfer such case to any district or division in
which it could have been brought.

See also 28 U.S.C. § 1631 (allowing “[t]ransfer to cure want of jurisdiction” if “it is in the
interest of justice”).
14

jurisdiction over the defendants under either § 1404(a) or § 1406(a) if such a
transfer is ‘in the interest of justice.’”).
Before transferring venue, however, the court addresses whether it is
“in the interest of justice” to do so. See, e.g., Migi v. Jett, 2009 WL 196188, at *1
(D. Haw. Jan. 26, 2009) (“Once a court determines that venue is improper, it
should examine the merits of the plaintiff’s action to decide whether the interests
of justice require transfer instead of dismissal.”).
Lousignont argues -- and the court agrees -- that it would be futile to
transfer venue to the District of Nevada because transferring would only result in
dismissal. In particular, Nevada Revised Statutes (“NRS”) § 41A.071, entitled
“Dismissal of action filed without affidavit of medical expert supporting
allegations,” provides:
If an action for medical malpractice or dental malpractice
is filed in the district court, the district court shall dismiss
the action, without prejudice, if the action is filed without
an affidavit, supporting the allegations contained in the
action, submitted by a medical expert who practices or
has practiced in an area that is substantially similar to the
type of practice engaged in at the time of the alleged
malpractice.
Because Plaintiff filed the action without an affidavit of an
appropriate medical expert, Lousignont contends that a Nevada court “shall
dismiss the action” under § 41A.071. Transferring venue would be fruitless and
15

thus not “in the interest of justice.” See Migi, 2009 WL 196188, at *1
(“Transferring a case that would be dismissed does not further the interest of
justice.”).
Plaintiff argues that he need not submit an expert affidavit because he
has submitted articles or abstracts of authorities. There is no support for this
proposition. Rather, § 41A.071 requires expert testimony. See Manley v. Nev.
Dep’t of Corr., 2009 WL 2949502, at *1 (D. Nev. Sept. 11, 2009) (“[D]ismissal of
the claims is warranted because Plaintiff has failed to attach the affidavit of a
medical expert supporting the allegations in the complaint.”) (citing Borger v.
Eighth Judicial Dist. Court, 102 P.3d 600, 606 (Nev. 2004)).
Similarly, the court rejects Plaintiff’s argument that a “res ipsa
loquitur” exception to the need for expert testimony applies here. See NRS
§ 41A.100(1) (setting forth exceptions to the expert-testimony requirement in
situations such leaving an instrument in the body during surgery, or performing a
surgical procedure on the wrong organ or limb). Plaintiff does not allege such
events. Rather, he alleges a bridge did not fit properly, teeth were damaged, and
other implant procedures should have been used.
In short, transferring this action to the U.S. District Court for the
District of Nevada would not be “in the interest of justice.”
16

V. CONCLUSION
For the above reasons, (1) Plaintiff’s Objections to the Findings and
Recommendation to Deny Plaintiff’s Motion for Default Judgment, Doc. No. 42,
are OVERRULED, the Findings and Recommendation is ADOPTED, and
Plaintiff’s Motion for Default Judgment is DENIED; (2) Lousignont’s Motion to
Dismiss for Lack of Personal Jurisdiction, Doc. No. 18, is GRANTED, and the
Amended Complaint is DISMISSED without prejudice; (3) Plaintiff’s Motion for
Transfer of Venue, Doc. No. 40, is DENIED; (4) Plaintiff’s Motions to Strike and
Withdraw Jury Demand, Doc. Nos. 35 & 37, are DENIED without prejudice as
MOOT, and (5) Plaintiff’s Motion for Summary Judgment, Doc. No. 58, is
DENIED as MOOT.
Because jurisdiction is improper in this court, the action is
DISMISSED without prejudice. The Clerk of Court shall close the case file.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 1, 2011.

/s/ J. Michael Seabright
_____________________________
J. Michael Seabright
United States District Judge
Spagnolo v. Nadic Network Certified Dentists et al., Civ. No. 11-00340 JMS/RLP, Order
(1) Adopting Findings and Recommendation to Deny Plaintiff’s Motion for Default Judgment,
(2) Granting Defendant Lousignont’s Motion to Dismiss for Lack of Personal Jurisdiction,
(3) Denying Plaintiff’s Motion for Transfer of Venue, and (4) Denying Other Motions as Moot

17