O'Neal v. Century Insurance Company

Filing 18

ORDER DENYING DEFENDANT'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND/OR IMPROPER VENUE, OR IN THE ALTERNATIVE, TO TRANSFER VENUE 8 . Signed by JUDGE ALAN C KAY on 08/14/2013. (eps)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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DUTCH O’NEAL,
Plaintiff,
v.
CENTURY INSURANCE COMPANY, a
foreign corporation,
Defendant.

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Civ. No. 13-00058 ACK-RLP

ORDER DENYING DEFENDANT’S MOTION TO DISMISS FOR LACK OF
PERSONAL JURISDICTION AND/OR IMPROPER VENUE, OR
IN THE ALTERNATIVE, TO TRANSFER VENUE
The Court hereby DENIES Century’s Motion to Dismiss for
Lack of Personal Jurisdiction and/or Improper Venue, or in the
Alternative, to Transfer Venue. The Court finds that Mr. O’Neal
has made a prima facie showing of jurisdictional facts, and that
venue is proper in this district because corporations over whom a
court can exercise personal jurisdiction are deemed to “reside”
in that court’s district. The Court DENIES Century’s Motion To
Transfer Venue because, under a recent amendment to 28 U.S.C.
§ 1404(d), a federal district court can no longer transfer venue
to the District Court of the Northern Mariana Islands if venue
was proper in the original court.
PROCEDURAL BACKGROUND
Plaintiff Dutch O’Neal alleges that Defendant Century
Insurance Company denied or delayed workers’ compensation
benefits that he was owed.

Mr. O’Neal filed his Complaint on February 4, 2013.
Doc. No. 1. On April 8, 2013, Century filed the instant Motion
for lack of personal jurisdiction or improper venue, or in the
alternative, to transfer venue. Doc. No. 8 (“Motion”). The Motion
was supported by a declaration from Century’s General Manager
(“Corpuz Decl.”) and two exhibits. Mr. O’Neal timely filed an
Opposition on July 15, 2013, which was supported by declarations
from Mr. O’Neal (“O’Neal Decl.”), one of Mr. O’Neal’s medical
case managers (“Smith Decl.”), and counsel, as well as numerous
exhibits. Doc. No. 14. Century timely filed its Reply on July 22,
2013, which was supported by declarations from Century’s
Corporate Paralegal Officer (“Mariano Decl.”) and a former Human
Resources Manager for Mr. O’Neal’s employer (“Villanueva Decl.”),
and an exhibit. Doc. No. 15.
FACTUAL BACKGROUND1/
I.

The Initial Injury and Surrounding Events
Plaintiff Dutch O’Neal is and was a Hawai’i resident at

“all times relevant” to this case. Compl. ¶ 1. Mr. O’Neal worked
as an Executive Chef for the Dai-ichi Hotel (“the Hotel”) in

1/

The facts as recited in this Order are for the purpose of
disposing of the current Motion and are not to be construed as
findings of fact that the parties may rely on in future
proceedings. For the purpose of deciding the instant Motion, the
Court accepts as true all factual allegations contained within
Mr. O’Neal’s Complaint, except for any assertions in the
Complaint which are contradicted by Century’s declarations. See
Alexander v. Circus Circus Enters., Inc., 972 F.2d 261, 262 (9th
Cir. 1992) (citations omitted). The Court also resolves all
factual disputes between the parties’ declarations in
Mr. O’Neal’s favor. See Wash. Shoe Co. v. A-Z Sporting Goods,
Inc., 704 F.3d 668, 672 (9th Cir. 2012).
2

Saipan, Commonwealth of the Northern Mariana Islands (“CNMI”).2/
O’Neal Decl. ¶ 2. The Hotel had a workers’ compensation insurance
policy issued by Defendant Century Insurance Company. Compl. ¶ 6.
Century, which is incorporated in the CNMI, (1) has its principal
place of business in Saipan, (2) does not have any employees in
Hawai’i, (3) does not own any real or personal property in
Hawai’i, (4) does not have an agent in Hawai’i for service of
process, (5) does not have any licenses or permits issued by the
State of Hawai’i, and (6) does not pay taxes in Hawai’i. Corpuz
Decl. ¶ 3, 10.
On December 10, 2003, Mr. O’Neal injured his lower back
and one of his knees when he slipped and fell while working at
the Hotel. Compl. ¶ 5. His treating physician, Dr. Thomas Austin,
ordered an MRI in order to better diagnose the precise nature of
Mr. O’Neal’s back injury. O’Neal Decl. ¶ 4. Because Saipan did
not have an MRI machine, Dr. Austin requested an appointment at a
facility on Guam, the earliest available date for which was
apparently in mid-February 2004. Opp. at 1-2; O’Neal Decl. ¶ 5.
Mr. O’Neal “was in excruciating pain” such that he
“desired rapid diagnosis and treatment.” O’Neal Decl. ¶ 5. He met
with the General Manager of the Hotel, Mark Swinton, at some
point in January 2004 to discuss medical treatment. Id. During
that meeting, Mr. Swinton told Mr. O’Neal about the Guam
appointment and said that if Mr. O’Neal could secure an earlier

2/

The Dai-ichi Hotel has since changed its name to Fiesta
Resort and Spa. Compl. ¶ 5.
3

MRI date in Hawai’i, Mr. Swinton would send Mr. O’Neal there for
treatment. Id. Mr. O’Neal was able to obtain an earlier
appointment on Maui and informed Mr. Swinton of this, who then
gave him an airline ticket to Hawai’i. Id.
On January 27, 2004, the Hotel submitted a claim on
Mr. O’Neal’s behalf to the CNMI’s Workers’ Compensation
Commission (“the Commission”). Motion at 4; Corpuz Decl. § 7;
O’Neal Decl. § 6. Then, on January 30, 2004, Dominic Villanueva,
the Hotel’s Human Resources Manager, sent a fax to Frank Cabrera
of the Commission, seeking Mr. Cabrera’s “expert advice on our
current WCC case.” Reply, Ex. 1. Mr. Villanueva told Mr. Cabrera
that Mr. O’Neal wanted to travel to Hawai’i for a second opinion
because there were no other orthopedic physicians on Saipan
besides Dr. Austin, and Mr. O’Neal believed that he did not
receive “intensive and satisfactory” medical care from
Dr. Austin. Id. Mr. Villanueva asked for “the intervention of the
WCC Administrator if the insurance carrier refuses coverage of
off-island hospitalization/treatment based on non-referral by CHC
doctor.” Id.
In this communication, Mr. Villanueva cited provisions
from the Commission’s Rules and Regulations, including one
dealing with changing physicians:
Whenever the employee has made his initial,
free choice of an attending physician, he may
not thereafter change physicians without the
prior written consent of the employer (or
carrier) or Administrator. Such consent shall
be given in cases where an employee’s initial
choice was not a specialist whose services
are necessary for, and appropriate to, the
4

proper care and treatment of the compensable
injury or disease. In all other cases,
consent may be given upon a showing of good
cause for change.
Id. (emphasis removed). Although Mr. Villanueva’s fax suggests
that the Hotel was worried about whether Century would cover
Mr. O’Neal’s treatment in Hawai’i, neither party has presented
evidence showing whether the Hotel discussed Mr. O’Neal’s travel
to Hawai’i with Century. Similarly, the record does not show
whether Century received a copy of Mr. Villanueva’s fax or when
Century was notified of the workers’ compensation claim.
II.

Mr. O’Neal’s Initial Treatment in Hawai’i
Mr. O’Neal flew to Hawai’i, as arranged with the Hotel,

on February 10, 2004, and underwent an MRI on February 13, 2004.
Compl. ¶ 7. At some point shortly after the MRI, Mr. O’Neal
reported his status to Mr. Swinton, who e-mailed Mr. O’Neal on
February 23, 2004, to say, “We are very pleased to know that you
have found some doctors you have confidence in and the proper
tests have been completed.” Opp., Ex. D. Mr. Swinton further told
Mr. O’Neal that “[w]e are very supportive and committed to your
therapy and we know very shortly you will be back pressing
forward,” and that the Hotel had decided to pay Mr. O’Neal’s full
salary through March 2004. Id.
Mr. Swinton e-mailed again Mr. O’Neal on March 2, 2004,
asking for an update on Mr. O’Neal’s treatment. Opp., Ex. E.
Mr. Swinton also assigned Mr. O’Neal two work-related tasks to be
completed before he returned to Saipan. Id. Mr. O’Neal e-mailed
Mr. Swinton and Mr. Villanueva on March 12, 2004, to tell them
5

that his surgeon had recommended knee surgery, to be performed on
April 20, 2004. Opp., Ex. F. Although Mr. O’Neal did not mention
it in his e-mail, the MRI also showed that Mr. O’Neal required
back surgery. Compl. § 7. The Hotel terminated Mr. O’Neal’s
employment sometime in April 2004. O’Neal Decl. ¶ 10.
III. Century Begins its Direct Oversight of Mr. O’Neal’s Care
Around this time, Century apparently began to consider
and then delayed its approval of Mr. O’Neal’s back and knee
surgeries. Compl. § 8. On or around May 19, 2004, Mr. O’Neal
suffered a pulmonary embolism that required treatment at the Maui
Memorial Medical Center. Id. § 8; Corpuz Decl. § 8. He claims
that the embolism was caused by Century’s “lengthy delays” in
approving his surgeries. O’Neal Decl. ¶ 13; see Compl. ¶ 8.
Mr. O’Neal ultimately underwent back surgery on November 10,
2004. Compl. ¶ 8; Motion at 5-6. Mr. O’Neal then underwent knee
surgery in January 2005. Compl. ¶ 8; Motion at 6.
Mr. O’Neal treatment has continued in Hawai’i to the
present time and he alleges numerous other bad-faith actions by
Century, including the following. First, when Mr. O’Neal’s first
nurse case manager resigned for personal reasons, Century did not
replace her for more than a year. Compl. ¶ 10-11. Century later
fired Mr. O’Neal’s second nurse case manager and replaced her
with an apparently uncertified case manager. Id. ¶ 15-16. Second,
after Mr. O’Neal had already received a successful trial spinal
cord stimulator (“SCS”) implant, Century rescinded its prior
written approval for a permanent implant. Id. ¶ 13-15. When
6

Mr. O’Neal appealed that decision, Century did not re-approve the
permanent implant until approximately nine months after having
initially approved the SCS procedure. Id. ¶ 18. After Mr. O’Neal
received the second approval and underwent an evaluation process
to ready him for a second SCS implant, Century filed a “Notice of
Suspension of (Workers’) Compensation Benefits and Request for
Hearing”. Id. ¶ 19-21. When Mr. O’Neal’s doctor apparently
decided to proceed with the SCS procedure despite the suspension
notice, the permanent SCS implant was only partially successful
because of “scar tissue [that] had accumulated in Mr. O’Neal’s
spine during the period of [Century’s] delay” in re-approving the
procedure. Id. ¶ 22-23. Third, despite being verbally ordered by
a CNMI workers’ compensation hearing officer (as discussed
further below) to “maintain medical treatments and housing
subsidy,” Century has refused approval of certain treatments. Id.
¶ 27-28.
Mr. O’Neal also cursorily alleges that Century has
defamed and slandered him. Id. ¶ 38-39.3/ He alleges that Century
“accused Mr. O’Neal of non-compliance with treatment
recommendations [and] refusal to submit to medical procedures,
proposed an investigation for fraud, [and] hired an investigator
to videotape and stalk Mr. O’Neal.” Id. ¶ 38.

3/

Paragraphs 39 and 40 of the Complaint are misnumbered.
The Court will use the correct numbering here.
7

IV.

Workers’ Compensation Commission Hearing and Subsequent
Events
On around May 17 or 18, 2011, Century filed a “Notice

of Suspension of (Workers’) Compensation Benefits and Request for
Hearing” before the CNMI Workers’ Compensation Commission, and
stopped paying Mr. O’Neal’s medical expenses and other related
expenditures. Compl. ¶ 21; Corpuz Decl. ¶ 7, 9. The Commission
heard Century’s administrative motion on approximately August 25,
2011. Compl. ¶ 24.
Medical considerations precluded Mr. O’Neal from
traveling to the CNMI for the hearing. O’Neal Decl. ¶ 17.
However, he was able to attend the hearing by telephone. Compl.
¶ 24. Further, he obtained a “volunteer attorney” in the CNMI to
represent him, although Century apparently obtained the
disqualification of Mr. O’Neal’s local counsel such that
Mr. O’Neal had no physical representation at the hearing.4/
Compl. ¶ 24, 26. Nearly two years later, a final decision in
those proceedings has not yet been issued. Id. ¶ 24. However, at
the time of the hearing, the hearing officer verbally ordered

4/

A typographical error in Mr. O’Neal’s Complaint appears
to suggest that Century had Mr. O’Neal’s Hawai’i counsel
disqualified, but the Court understands from the context that
Mr. O’Neal was referring to his Saipan-based counsel. Century
asserts that Mr. O’Neal continues to be represented by local
counsel in the CNMI proceedings, Reply at 7, but Century’s
supporting affidavit only confirms that “[Mr.] O’Neal retained an
attorney in Saipan.” Corpuz Decl. ¶ 9. At the August 5, 2013,
hearing on the instant Motion, Century referenced ongoing
discussions with Mr. O’Neal’s Saipan-based counsel. Mr. O’Neal
did not dispute that he continues to be represented in the CNMI,
although he reiterated that the attorney is working pro bono.
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Century “to maintain medical treatments and housing subsidy.” Id.
¶ 27. Century notes that its total payments on Mr. O’Neal’s
behalf exceed one million dollars. Motion at 5; Corpuz Decl. ¶ 9.
In his Complaint, Mr. O’Neal alleges the following
claims against Century: (1) bad faith, (2) negligent and/or
intentional infliction of emotional distress, (3) violation of
Hawai’i’s Unfair Competition or Practices Act, and (4) defamation
and slander. Compl. at 2, 9-11.
STANDARD
I.

Standard for Motion to Dismiss for Lack of Personal
Jurisdiction
The Court’s exercise of personal jurisdiction over a

party may be challenged under Federal Rule of Civil Procedure
(“Rule”) 12(b)(2). The plaintiff bears the burden of showing that
the Court has jurisdiction over the defendant. Mavrix Photo, Inc.
v. Brand Techs., Inc., 647 F.3d 1218, 1223 (9th Cir. 2011). The
Court may allow the parties to submit affidavits, allow
affidavits plus discovery, or conduct an evidentiary hearing. Doe
v. Unocal Corp., 248 F.3d 915, 922 (9th Cir. 2001).
When the Court rules without conducting an evidentiary
hearing, “the plaintiff need only make a prima facie showing of
jurisdictional facts” to avoid dismissal.5/ Wash. Shoe, 704 F.3d
at 672. The Court must take as true all uncontroverted facts in

5/

“If the plaintiff succeeds in meeting that prima facie
burden, then the district court may still order an evidentiary
hearing or the matter may be brought up again at trial.” Fiore v.
Walden, 688 F.3d 558, 574 n.13 (9th Cir. 2011) (citation
omitted).
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the complaint but may not assume the truth of allegations which
are contradicted by affidavit. CollegeSource, Inc. v. AcademyOne,
Inc., 653 F.3d 1066, 1073 (9th Cir. 2011). The Court must resolve
all factual disputes in the plaintiff’s favor. Wash. Shoe, 704
F.3d at 672. Nonetheless, “mere ‘bare bones’ assertions of
minimum contacts with the forum or legal conclusions unsupported
by specific factual allegations will not satisfy a plaintiff’s
pleading burden.” Fiore, 688 F.3d at 574-75 (quoting Swartz v.
KPMG LLP, 476 F.3d 756, 766 (9th Cir. 2007)).
II.

Standard for Motion to Dismiss for Lack of Venue or, in the
Alternative, Transfer
The general venue statute, 28 U.S.C. § 1391(b), states:
A civil action may be brought in (1) a judicial district in which any
defendant resides, if all defendants are
residents of the State in which the district
is located;
(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 the property that is the
subject of the action is situated; or
(3) if there is no district in which the
action may otherwise be brought as provided
in this section, any judicial district in
which any defendant is subject to the court’s
personal jurisdiction with respect to such
action.
Pursuant to 28 U.S.C. § 1406(a), if venue in the

district is improper, the district court “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.”

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Even if venue is proper in the district pursuant to 28
U.S.C. § 1391, the district court may transfer the case to
another district for the convenience of the parties and witnesses
and in the interest of justice. 28 U.S.C. § 1404(a). Transfer
under this section is limited “to those federal districts in
which the action ‘might have been brought.’” Id. “The purpose of
this section is to prevent the waste of time, energy, and money
and to protect litigants, witnesses and the public against
unnecessary inconvenience and expense.” Hi-Pac, Ltd. v. Avoset
Corp., 980 F. Supp. 1134, 1139 (D. Haw. 1997) (internal quotation
marks and citations omitted).
DISCUSSION
Century argues that (1) Mr. O’Neal’s Complaint should
be dismissed for lack of personal jurisdiction over Century;
(2) Mr. O’Neal’s Complaint should be dismissed because venue in
this forum is improper; or (3) in the alternative, the litigation
should be transferred to the District of the Northern Mariana
Islands. For the following reasons, the Court determines that it
has specific personal jurisdiction over Century and that venue is
proper in this district. The Court further determines that
transfer of venue is not possible in this case.
I.

Personal Jurisdiction
To subject a nonresident defendant to suit when no

federal statute authorizes personal jurisdiction, as here, the
district court applies the law of the state in which the court
sits. Fed. R. Civ. P. 4(k)(1)(A); CollegeSource, Inc. v.
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AcademyOne, Inc., 653 F.3d 1066, 1073 (9th Cir. 2011) (citation
omitted). Because Hawai’i’s long-arm statute, Haw. Rev. Stat.
§ 634-35, is coextensive with the Due Process Clause of the
Fourteenth Amendment to the U.S. Constitution, Cowan v. First
Ins. Co., 608 P.2d 394, 399 (Haw. 1980), the Court need only
determine whether due process permits the exercise of personal
jurisdiction, see, e.g., Schwarzenegger v. Fred Martin Motor Co.,
374 F.3d 797, 800-801 (9th Cir. 2004).
For a court to exercise personal jurisdiction over a
nonresident defendant consistent with due process requirements,
that defendant must have “certain minimum contacts” with the
relevant forum “such that maintenance of the suit does not offend
‘traditional notions of fair play and substantial justice.’”
CollegeSource, 653 F.3d at 1073-74 (quoting Int’l Shoe Co. v.
State of Wash., Office of Unemp’t Comp. & Placement, 326 U.S.
310, 316 (1945)). These minimum contacts represent the “outer
boundaries” of due process. Goodyear Dunlop Tires Operations,
S.A. v. Brown, 131 S. Ct. 2846, 2853 (2011).
Due process is satisfied if the Court has “either
general or specific” jurisdiction over a nonresident defendant.
Doe v. Am. Nat’l Red Cross, 112 F.3d 1048, 1050 (9th Cir. 1997).
Here, the Court finds that there is no general personal
jurisdiction over Century in this district, but that it may
assert specific personal jurisdiction over Century for purposes
of this action.

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I.A. General Personal Jurisdiction
“A court may assert general jurisdiction over foreign
(sister-state or foreign-country) corporations to hear any and
all claims against them when their affiliations with the state
are so ‘continuous and systematic’ as to render them essentially
at home in the forum State.” Goodyear, 131 S. Ct. at 2851
(quoting Int’l Shoe, 326 U.S. at 317). For a court to have
general personal jurisdiction over a nonresident defendant like
Century, “the defendant must engage in ‘continuous and systematic
general business contacts’ that ‘approximate physical presence’
in the forum state.” CollegeSource, 653 F.3d at 1074 (citations
omitted) (quoting Goodyear, 131 S. Ct. at 2851). This amounts to
“an exacting standard, as it should be, because a finding of
general jurisdiction permits a defendant to be haled into court
in the forum state to answer for any of its activities anywhere
in the world.” Schwarzenegger, 374 F.3d at 801.
Century persuasively argues that the Court does not
have general jurisdiction over Century because Century’s
“contacts with the State of Hawaii fall significantly short of
the exacting standard [for general jurisdiction] established by
the Ninth Circuit and other Courts.” Motion at 9. Mr. O’Neal does
not contest this; instead, he argues that the Court has specific
jurisdiction over Century. Opp. at 7-8. Accordingly, the Court
concludes that it does not have general personal jurisdiction
over Century. The Court therefore turns to whether it has

13

specific personal jurisdiction over Century for purposes of this
action.
I.B. Specific Personal Jurisdiction
The basis of specific personal jurisdiction is “an
affiliatio[n] between the forum and the underlying controversy.”
Goodyear, 131 S. Ct. at 2851 (alteration in original) (internal
quotation marks omitted) (quoting Von Mehren & Trautman,
Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv. L.
Rev. 1121, 1136 (1966)). In contrast to the “all-purpose” nature
of general personal jurisdiction, specific personal jurisdiction
limits the court to adjudicating “issues deriving from, or
connected with, the very controversy that establishes
jurisdiction.” Id. (quoting Von Mehren & Trautman, supra, at
1136) (internal quotation marks omitted). To determine whether
specific personal jurisdiction exists, a district court must
employ a three-prong test to evaluate the nature and quality of
the defendant’s contacts with the forum state:
(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.

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Schwarzenegger, 374 F.3d at 801-802 (quoting Lake v. Lake, 817
F.2d 1416, 1421 (9th Cir. 1987)). To satisfy due process
requirements, jurisdiction in the forum must meet all three
prongs. Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267,
270 (9th Cir. 1995).
The plaintiff bears the burden of satisfying the first
two prongs of the Schwarzenegger test for specific personal
jurisdiction. 374 F.3d at 801-02 (citation omitted). If the
plaintiff succeeds in satisfying the first two requirements, then
the burden shifts to the defendant “to set forth a ‘compelling
case’ that the exercise of jurisdiction would not be reasonable.”
Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-78
(1985)) (emphasis added). Notwithstanding the Schwarzenegger
test, the court may exercise jurisdiction “with a lesser showing
of minimum contact[s] than would otherwise be required if
considerations of reasonableness dictate.” Haisten v. Grass
Valley Med. Reimbursement Fund, Ltd., 784 F.2d 1392, 1397 (9th
Cir. 1986) (emphasis omitted) (citing Burger King, 471 U.S. at
477).
I.B.1

Purposeful Availment or Direction
Under the first Schwarzenegger prong, a defendant in a

tort case must “purposefully direct” its activities towards the
forum state in order to be subject to specific personal
jurisdiction there. 374 F.3d at 802. A district court determines
whether the defendant purposefully directed its actions toward
the forum state by applying the “effects” test that derives from
15

the Supreme Court’s decision in Calder v. Jones, 465 U.S. 783
(1984), with a “focus[] on the forum in which the defendant’s
actions were felt, whether or not the actions themselves occurred
within the forum.” Yahoo! Inc. v. La Ligue Contre le Racisme et
l’Antisemitisme, 433 F.3d 1199, 1206 (9th Cir. 2006) (en banc).
The defendant must be alleged to have “(1) committed an
intentional act, (2) expressly aimed at the forum state,
(3) causing harm that the defendant knows is likely to be
suffered in the forum state.” CollegeSource, 653 F.3d at 1077
(citation omitted) (internal quotation marks omitted). “Thus,
courts may exercise personal jurisdiction over a defendant who
engages in an intentional act that causes harm in the forum
state, even if that act takes place outside of the forum state.”
Wash. Shoe Co. v. A-Z Sporting Goods, Inc., 704 F.3d 668, 673
(9th Cir. 2012).
I.B.1.a

Intentional actions

The first step of the Calder effects test asks whether
the defendant’s alleged acts were intentional. “Intentional
torts, in particular, can support personal jurisdiction over a
nonresident defendant who has no other forum contacts.” Fiore,
688 F.3d at 577. The Calder test lends “intentional act” a
“specialized meaning,” such that a court must “construe ‘intent’
in the context of the ‘intentional act’ test as referring to an
intent to perform an actual, physical act in the real world,
rather than an intent to accomplish a result or consequence of
that act.” Schwarzenegger, 374 F.3d at 806.
16

Here, all but one of Mr. O’Neal’s claims allege
intentional torts. Century does not dispute the intentional
nature of its alleged actions, which include delaying
Mr. O’Neal’s back and knee surgeries following his MRI, causing
Mr. O’Neal to suffer a pulmonary embolism. Mr. O’Neal has
satisfied the first prong of the Calder test for purposeful
direction.
I.B.1.b

Express aiming

The second part of the Calder test for purposeful
direction is the “express aiming” requirement. The “express
aiming” 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.’” Dole
Food Co. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002) (quoting
Bancroft & Masters, Inc. v. Augusta Nat’l, Inc., 223 F.3d 1082,
1087 (9th Cir. 2000)). This is also known as “individual
targeting,” or “actions taken outside the forum state for the
purpose of affecting a particular forum resident or a person with
strong forum connections.” Fiore, 688 F.3d at 577.
I.B.1.b.1 Whether Mr. O’Neal’s move to Hawai’i was
unilateral
Century argues that Mr. O’Neal moved to Hawai’i
unilaterally and that, accordingly, the Court must find that
Century did not “expressly aim” its actions at Hawai’i. Motion at
5, 14, 16; Reply at 5. The Supreme Court has held that “a
defendant will not be haled into a jurisdiction solely as the
result of . . . the ‘unilateral activity of another party or a
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third person[.]’” Burger King, 471 U.S. at 475 (quoting
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,
417 (1984)). The Supreme Court has observed, however, that
“[j]urisdiction is proper . . . where the contacts proximately
result from actions by the defendant himself that create a
‘substantial connection’ with the forum State.” Id. (quoting
McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223 (1957) (emphasis
omitted)).
Century’s argument relies on two Ninth Circuit
opinions, Hunt v. Erie Insurance Group, 728 F.2d 1244 (9th Cir.
1984), and Petrik v. Public Service Mutual Insurance Co., 879
F.2d 682 (9th Cir. 1989). In Hunt, the plaintiff was injured in a
car accident in Colorado; following a coverage dispute, her
mother arranged for her to move to California for medical care.
728 F.2d at 1245. The plaintiff subsequently sued the defendant
insurer for bad faith. Id. at 1246. The Ninth Circuit found that
the plaintiff’s “decision to move to California cannot be
attributed to [the insurer]. . . . [I]t ultimately was Hunt’s
decision to move to California in order to receive the
treatment.” Id. at 1247. Accordingly, the court found that
characterizing the plaintiff’s decision as “purposeful availment”
by the defendant would “frustrate the very policy behind that
requirement.” Id.
Similarly, in Petrik, the plaintiff unilaterally
decided to move to Montana after suffering an injury in another
state; the symptoms of that injury later manifested themselves in
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Montana. 879 F.2d at 683. The Ninth Circuit concluded that the
defendant insurer’s “contacts with Montana are due solely to the
unilateral activities of Petrik” and thus, “[a]ssertion of
personal jurisdiction over [the insurer] would violate due
process.” Id. at 685.
The Court finds the facts in the above cases
distinguishable from those underlying Mr. O’Neal’s claims. In
both Hunt and Petrik, the critical fact supporting the Ninth
Circuit’s reasoning was that the plaintiff unilaterally moved to
the forum state. Mr. O’Neal persuasively contends that Hunt and
Petrik do not apply here because the Hotel, as the alter ego of
Century for workers’ compensation purposes, encouraged and
facilitated Mr. O’Neal’s travel to Hawai’i for treatment--and
therefore Mr. O’Neal did not unilaterally decide to leave the
CNMI.6/ Opp. at 12-13.
During the hearing on the instant Motion, Century
expressly conceded that the Hotel’s actions in sending Mr. O’Neal
6/

Mr. O’Neal also seeks to distinguish Hunt and Petrik
because (1) those decisions did not apply the Calder effects test
and (2) “the forum invoked in [Hunt] was not the situs of the
allegedly insured events,” whereas here, insured events “occurred
in or were aimed at the state of Hawai’i.” Opp. at 12-15.
Mr. O’Neal reasserted the second argument at the hearing on the
instant Motion, contending that the insurance agreement
contemplated litigation in Hawai’i as the location of an insured
event. These arguments are not persuasive. First, that the Hunt
and Petrik courts did not apply Calder is immaterial, since both
decisions comport with Supreme Court precedents and are consonant
with Calder’s analysis and its underlying principles. Second,
Hawai’i is not the location of the allegedly insured events;
Mr. O’Neal was injured during the course of his employment in the
CNMI. The insurance agreement merely contemplated litigation in
Hawai’i if an insured event occurred in Hawai’i. Motion, Ex. 1,
pp. 4-5.
19

to Hawai’i for treatment could be imputed to Century for purposes
of deciding this Motion (though counsel maintained that Century’s
actions nonetheless did not reach the level of “purposeful
direction”). Nevertheless, because the alter-ego issue is
critical to the personal jurisdiction question, the Court briefly
evaluates it below.
Since both Century and the Hotel are located in the
CNMI, CNMI law would likely define their relationship.7/ The
CNMI’s Workers’ Compensation Law states, in defining “employer”:
“If the employer is insured, [the term ‘employer’] includes his
insurer as far as applicable.” 4 N. Mar. I. Code § 9302(m)
(2011). Moreover, the statute notes that “[i]n any case where the
employer is not a self-insurer . . . [j]urisdiction over the
employer by the administrator, the commission, or any court under
this chapter shall be sufficient to confer jurisdiction over the
carrier.”. Id. § 9344(b). CNMI statutory law thus clearly
indicates an alter-ego type relationship between the employer and
the workers’ compensation insurer. Moreover, Century itself has
provided an exhibit showing that one of the Rules and Regulations
of the CNMI’s Workers’ Compensation Commission prohibits an
employee from changing physicians “without the prior written
consent of the employer (or carrier).” Reply, Ex. 1. It appears
that, under CNMI law, the Hotel’s actions could be attributed to
Century.

7/

Since CNMI and Hawai’i law appear to agree on this point,
see infra, the Court need not reach the choice-of-law issue.
20

By comparison, Mr. O’Neal based his argument on Hawai’i
Revised Statutes § 386-1, which states, “The insurer of an
employer is subject to the employer’s liabilities . . . and [is]
entitled to rights and remedies under this chapter as far as
applicable.” Haw. Rev. Stat. § 386-1 (2012). In the only Hawai’i
case interpreting this statute, the Hawai’i Supreme Court applied
the plain language of the statute to find that the insurer,
because it paid the injured employee’s expenses on behalf of the
employer, assumed the role of “employer” for purposes of the
suit. First Ins. Co. of Haw. v. A & B Props., Inc., 271 P.3d
1165, 1166 n.1 (Haw. 2012). Thus, it appears that under Hawai’i
law, the Hotel’s actions could also be attributed to Century.
In sum, Mr. O’Neal’s theory that the Hotel’s actions
can be imputed to Century appears sound under both CNMI law and
Hawai’i law. The Court therefore now examines whether Mr. O’Neal
has shown that the Hotel consented to his move.
Based on the record before the Court, Mr. O’Neal has
made a prima facie showing that the Hotel consented to his move
to Hawai’i and even facilitated it. The Hotel took several
actions showing its consent: (1) the Hotel gave Mr. O’Neal a
ticket to Hawai’i; (2) once Mr. O’Neal was in Hawai’i, the Hotel
expressed its written support for Mr. O’Neal’s continued care;
(3)the Hotel assigned Mr. O’Neal two work-related tasks to
perform while in Hawai’i; and (4) the Hotel kept Mr. O’Neal on
its payroll through at least March 2004.

21

The Court finds that Mr. O’Neal has alleged facts
sufficient to show that the Hotel sent him to Hawai’i for
treatment. Because, as discussed above, the Court can impute the
Hotel’s actions to Century, the Court concludes that Century
assented to and facilitated Mr. O’Neal’s move to Hawai’i.
Therefore, Hunt and Petrik do not control this case.
I.B.1.b.2 Express aiming
Having concluded for purposes of this Motion that
Mr. O’Neal’s move to Hawai’i was not unilateral, the Court now
examines whether Century’s alleged actions otherwise meet the
standard for “express aiming.” Mr. O’Neal alleges that beginning
in April 2004, Century committed torts of bad faith against
Mr. O’Neal while knowing that Mr. O’Neal was a Hawai’i resident.
Opp. at 12; see also Compl. § 1; Villanueva Decl. § 4. Century
does not dispute that from April 2004 onwards, Century knew
Mr. O’Neal was residing in Hawai’i. The Court finds that
Mr. O’Neal has made a prima facie showing that Century “expressly
aimed” its actions towards Hawai’i. Therefore, Mr. O’Neal has
satisfied the second prong of the Calder test for purposeful
direction.
I.B.1.c

Actions causing harm in Hawai’i

The third and final part of the Calder test for
purposeful direction looks at the location of the harm that
Century allegedly caused. The general standard is that “the
conduct at issue caused foreseeable harm in the forum.” Fiore,
688 F.3d at 581. Harm in the forum stems from “[t]he result or
22

consequence of the [tortious] act.” See Schwarzenegger, 374 F.3d
at 806. Mr. O’Neal argues that, because Mr. O’Neal was a Hawai’i
resident when Century allegedly first committed bad faith against
him, Century should have foreseen harm to Mr. O’Neal in Hawai’i.
Opp. at 17. This is persuasive; when Century delayed its approval
of Mr. O’Neal’s treatments, it should have foreseen that
Mr. O’Neal would suffer the “results or consequences” of such a
decision in Hawai’i. Schwarzenegger, 374 F.3d at 806.
Century does not contest that the harm occurred in
Hawai’i. Century’s argument that Mr. O’Neal’s claims are
“directly linked” to his injury in the CNMI does not alter the
fact that Mr. O’Neal was a Hawai’i resident at the time of
Century’s alleged intentional tortious acts.
Thus, Mr. O’Neal satisfies the third prong of the
Calder test for purposeful direction.
I.B.1.d

Conclusion as to purposeful direction

The Court finds that Mr. O’Neal has presented a prima
facie case that he did not move to Hawai’i unilaterally and that
Century purposefully directed its activities toward him knowing
that he was a Hawai’i resident. The Court emphasizes that its
finding here approaches the boundaries of the purposeful
direction analysis, such that a lesser showing of contacts would
not have been persuasive. The Court now moves on to the second
and third prongs of the Schwarznegger test for personal
jurisdiction.

23

I.B.2

Arising out of Forum-Related Activities
The second prong of the Schwarzenegger jurisdictional

analysis is met if the claim “arises out of or relates to the
defendant’s forum-related activities.” 374 F.3d at 801-02
(citation omitted). Courts in the Ninth Circuit employ a “but
for” test to determine whether a claim arises out of forumrelated activities--in other words, “[a plaintiff] must show that
he would not have suffered an injury ‘but for’ [the defendant’s]
forum-related conduct.” Menken v. Emm, 503 F.3d 1050, 1058 (9th
Cir. 2007) (citing Myers v. Bennett Law Offices, 238 F.3d 1068,
1075 (9th Cir. 2001)).
At the hearing on the instant Motion, Century conceded
the second prong of the Schwarzenegger test. Therefore, the Court
can quickly conclude that Mr. O’Neal would not have suffered his
alleged harm but for Century’s alleged bad faith delay of
Mr. O’Neal’s treatment in Hawai’i.
I.B.3

Reasonableness
Because Mr. O’Neal has satisfied both the first and

second prongs of the Schwarzenegger test for specific personal
jurisdiction, the burden now shifts to Century “to set forth a
‘compelling case’ that the exercise of jurisdiction would not be
reasonable.” Schwarzenegger, 374 F.3d at 801-02 (quoting Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 476-78 (1985)). In making
a reasonableness determination, the Court balances the following
seven factors:
(1) The extent of the defendant’s purposeful
interjection into the forum state’s affairs;
24

(2) the burden on the defendant of defending
in the forum;
(3) the extent of conflict with the
sovereignty of the defendant’s state;
(4) the forum state’s interest in
adjudicating the dispute;
(5) the most efficient judicial resolution of
the controversy;
(6) the importance of the forum to the
plaintiff’s interest in convenient and
effective relief; and
(7) the existence of an alternative forum.
Fiore, 688 F.3d at 582-83. The Court balances all seven factors,
recognizing that none of the factors is dispositive in itself.
Id.
I.B.3.i

Extent of Century’s purposeful interjection

The Ninth Circuit has found “that circumstances may
exist where ‘the level of purposeful interjection into the forum
supports a finding of purposeful availment yet still weighs
against the reasonableness of jurisdiction.’” Fiore, 688 F.3d at
583 (quoting Dole Food, 303 F.3d at 1115). Such circumstances do
not exist here. As discussed above, Mr. O’Neal has made a prima
facie showing that Century intentionally sent him to Hawai’i for
medical treatment and then allegedly committed the tort of bad
faith against him. This factor weighs in favor of Mr. O’Neal.
I.B.3.ii

Burden on Century

The Court recognizes that “a defendant’s burden in
litigating in the forum is a factor in the assessment of
reasonableness, but unless ‘the inconvenience is so great as to
constitute a deprivation of due process, it will not overcome

25

clear justifications for the exercise of jurisdiction.’”
Panavision Int’l v. Toeppen, 141 F.3d 1316, 1321, 1323 (9th Cir.
1998) (internal citations omitted). Moreover, courts in this
Circuit have observed that “[r]ecent advancements in
communication and transportation . . . have greatly reduced the
inconvenience once associated with defending in another forum.”
Robinson Corp. v. Auto-Owners Ins. Co., 304 F. Supp. 2d 1232,
1240 (D. Haw. 2003) (citing Panavision, 141 F.3d at 1323).
Century has no offices, employees, or real or personal
property in Hawai’i. Moreover, at least three of its material
witnesses are Philippine nationals whose U.S. visas require
special immigration clearance to travel to Hawai’i. Motion at 17.
Century emphasized this point at the hearing on the instant
Motion. However, one of those witnesses (along with Century’s
counsel) traveled to Hawai’i in March 2009 in connection with
handling Mr. O’Neal’s claim. Smith Decl. § 9. That travel
occurred almost one year after the May 2008 enactment of the
immigration law that Century references. Mariano Decl. § 3. It
seems reasonable that similar immigration clearance could be
obtained for purposes of this litigation. Even if this were not
possible, witness testimony could be heard via videoconference.
See Fed. R. Civ. P. 43(a) (“For good cause in compelling
circumstances and with appropriate safeguards, the court may
permit testimony in open court by contemporaneous transmission
from a different location.”).

26

Nevertheless, litigating this matter in Hawai’i imposes
some burden on Century. This factor slightly favors Century.
I.B.3.iii Conflict with the sovereignty of the
Commonwealth of the Northern Mariana Islands
Century asserts that the CNMI has a “strong public
interest in administrating its Workers’ Compensation Laws.” Reply
at 5. Century further asserts that Mr. O’Neal’s tort claims “are
so intertwined with this strong public interest . . . as to
create a prospective conflict of sovereignty” and that “there
exists significant conflict of law issues” between Hawai’i and
the CNMI. Id. at 6. Century overestimates the importance of
sovereignty in this case, because the sovereignty of a
defendant’s state is not a significant consideration in actions
between citizens of the United States. See Decker Coal Co. v.
Commonwealth Edison Co., 805 F.2d 834, 841 (9th Cir. 1986); see
also Powerhouse Diesel Servs., Inc. v. Tinian Stevedore, Inc.,
No. 93-0003, 1993 WL 377437, at *4 (D. N. Mar. I. Sept. 15, 1993)
(citing the Decker Coal Court’s finding that sovereignty
interests are of “minimal” importance).
The Hawai’i Supreme Court has explicitly recognized
that bad faith is an independent tort claim that does not arise
under the state Workers’ Compensation Act. Hough v. Pac. Ins.
Co., 927 P.2d 858, 867-70 (Haw. 1996) (“[A] breach of the implied
contractual duty of good faith gives rise to the independent tort
cause of action for a third-party beneficiary.”). For Hawai’i law
to find liable a CNMI insurer who acts in bad faith against a
Hawai’i resident is hardly an infringement on the CNMI’s
27

sovereignty. To conclude otherwise would equate to a declaration
that no state can protect its residents against tortious actions
by a foreign corporation.
Accordingly, this factor is neutral.
I.B.3.iv

Interest of Hawai’i

“A State generally has a ‘manifest interest’ in
providing its residents with a convenient forum for redressing
injuries inflicted by out-of-state actors.” Burger King, 471 U.S.
at 473 (citation omitted). Moreover, Hawai’i recognizes a thirdparty bad faith claim against a workers’ compensation insurer.
Hough, 927 P.2d at 869-70 (explaining that an employee has a
third-party claim, rather than a first-party claim, because “[a]n
employee is an intended third-party beneficiary of an employer’s
contract with an insurance company for workers’ compensation
coverage”) (footnote omitted)).
Century argues, unconvincingly, that Hawai’i “has no
real interest in adjudicating claims which are directly linked to
a ‘work related’ injury” that took place in the CNMI,
particularly “when administrative proceedings are pending
relating to similar issues raised by [Mr.] O’Neal in this civil
proceeding.” Motion at 18. As discussed above, Mr. O’Neal’s tort
claims are separate from his workers’ compensation claims. Hough,
927 P.2d at 869 (finding that a bad faith claim is “not based on
the original work injury”). That finding bad faith would require
interpreting CNMI workers’ compensation law is immaterial; this
Court can apply CNMI workers’ compensation law, just as the
28

federal district court in the CNMI could apply Hawai’i bad faith
law. See Applied Med. Distrib. Corp. v. Surgical Co. BV, 587 F.3d
909, 920 (9th Cir. 2009) (“It warrants repeating that federal
judges are quite capable of applying foreign law.”) (citing E. &
J. Gallo Winery v. Andina Licores S.A., 446 F.3d 984, 991 (9th
Cir. 2006)).
Hawai’i’s interest in regulating bad faith by insurance
companies is particularly pronounced when a Hawai’i resident has
been tortiously injured. See Robinson, 304 F. Supp. 2d at 1241.
This factor strongly favors Mr. O’Neal.
I.B.3.v

Judicial efficiency

“[C]onsideration of the most efficient judicial
resolution is ‘no longer weighted heavily given the modern
advances in communication and transportation.’” Panavision, 141
F.3d at 1323 (quoting Caruth v. Int’l Psychoanalytical Ass’n, 59
F.3d 126, 129 (9th Cir. 1995)). Mr. O’Neal asserts that his
witnesses include his numerous medical providers in Hawai’i. Opp.
at 22. Century indicates that its material witnesses include
three Philippine nationals who live in the CNMI.
However, the sheer number of witnesses is not as
important as the materiality of their potential testimony. Here,
both parties have witnesses whose testimony will be material, and
neither party argues that its witnesses are more material than
the other’s.
In addition, as discussed above, this Court would have
to apply CNMI workers’ compensation law to decide Mr. O’Neal’s
29

bad faith claims. Specifically, this Court would need to
determine which benefits CNMI law accorded to Mr. O’Neal in order
for the Court to find that Century acted in bad faith with
respect to providing those benefits. Similarly, a CNMI court
would have to interpret the nuances of Hawai’i bad faith law to
decide the same claims. Thus, neither court would have an
efficiency advantage over the other.
Hence, this factor as a whole is neutral.
I.B.3.vi

Importance of forum to plaintiff’s interest

Century argues that “the burden on the plaintiff is not
a relevant consideration . . . in determining whether
jurisdiction is reasonable.” Motion at 17. Indeed, “[i]n
evaluating the convenience and effectiveness of relief for the
plaintiff, the Ninth Circuit has given little weight to the
plaintiff’s inconvenience.” Panavision, 141 F.3d at 1324
(internal citations omitted).
Here, however, Mr. O’Neal is not merely inconvenienced
by litigating in the CNMI; he argues that he is physically unable
to travel outside of Hawai’i. Opp. at 22. That presents a
significant barrier to litigating in the CNMI that overcomes the
usual minimal weight accorded to the plaintiff’s inconvenience.
Panavision, 141 F.3d at 1324.8/ At the hearing on the instant
8/

Century argues that Mr. O’Neal has retained counsel in
the CNMI and “has actively participated in administrative
proceedings” there. Motion at 19. As discussed above, Mr. O’Neal
was physically unable to attend the August 25, 2011, hearing in
the CNMI and had to appear by telephone. Although he obtained a
“volunteer attorney” for the hearing, Mr. O’Neal reports that
Century had Mr. O’Neal’s local counsel disqualified from
30

Motion, Century acknowledged that Mr. O’Neal is unable to travel
to Saipan. Therefore, this factor weighs strongly in favor of
Mr. O’Neal.
I.B.3.vii Existence of alternative forum
Century contends that the District of the Northern
Mariana Islands is an alternative forum for this dispute. Motion
at 18-19. “The plaintiff ‘bears the burden of proving the
unavailability of an alternative forum[.]’” Bauman v.
DaimlerChrysler Corp., 644 F.3d 909, 928 (9th Cir. 2011) (quoting
Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd.,
328 F.3d 1122, 1133-34 (9th Cir. 2003)). Here, Mr. O’Neal has not
argued that there is no alternative forum for his claims. Because
Mr. O’Neal has failed to meet this burden, this factor weighs in
favor of Century.
I.B.4

Conclusion as to Personal Jurisdiction
Taken as a whole, Century has not made a “compelling

case” that exercise of jurisdiction over it in Hawai’i would be
unreasonable. See Fiore, 688 F.3d at 585. Due process is met when
there is “‘a degree of predictability to the legal system that
allows potential defendants to structure their primary conduct
with some minimum assurance as to where that conduct will and
will not render them liable to suit.’” Burger King, 471 U.S. at
472 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286

participating in the hearing. This contradicts Century’s
portrayal of Mr. O’Neal’s minimal inconvenience in litigating in
the CNMI. Accordingly, the Court finds Century’s argument
unpersuasive.
31

(1980)). Consequently, the Court must balance the above seven
factors to determine whether exercising jurisdiction is proper.
Fiore, 688 F.3d at 582-83.
Tallying the above factors, three weigh in Mr. O’Neal’s
favor, two weigh in Century’s favor, and two are neutral.
Although the balancing process is not merely numerical, this
shows that the balance is in favor of Mr. O’Neal; moreover, two
factors strongly favor Mr. O’Neal. This balance precludes a
finding that Century has met its burden of establishing a
“compelling case” that the exercise of jurisdiction would be
unreasonable. Schwarzenegger, 374 F.3d at 801-02 (quoting Burger
King, 471 U.S. at 476-78).
Moreover, as Mr. O’Neal argues, even if the Court found
that the reasonableness factors presented a “close call,” Century
still would not have presented a “compelling case.” Roth v.
Garcia Marquez, 942 F.2d 617, 625 (9th Cir. 1991); Opp. at 24.
See also Harris Rutsky, 328 F.3d at 1134 (finding that even if
the reasonableness factors are a “wash” because both parties have
factors weighing in their favor, this still does not present a
“compelling case”). The Court does not find the reasonableness
factors to be a “close call” or a “wash,” but even if it did,
Century would not have met its burden.
The Court reiterates that it has carefully considered
Century’s argument that Hunt and Petrik compel the Court to find
a lack of personal jurisdiction. Motion at 13-14. If Mr. O’Neal
had unilaterally elected to travel to Hawai’i for treatment,
32

rather than being sent there by the Hotel, then Hunt and Petrik
would require the Court to grant Century’s motion. But because,
as Century’s counsel conceded at the motion hearing, the Hotel’s
actions in sending Mr. O’Neal to Hawai’i for treatment can be
imputed Century for purposes of deciding this motion, Hunt and
Petrik do not control this case.
The Court therefore DENIES Century’s Motion to Dismiss
on grounds of lack of personal jurisdiction.
II.

Improper Venue
Century argues that venue in this district is improper

because Century does not reside in this district. Under 28 U.S.C.
§ 1391, venue is proper in “a judicial district in which any
defendant resides, if all defendants are residents of the State
in which the district is located.” Corporations are “deemed to
reside . . . in any judicial district in which such defendant is
subject to the court’s personal jurisdiction with respect to the
civil action in question.” 28 U.S.C. § 1391(c)(2). Thus, the
question of proper venue collapses into the question of personal
jurisdiction. The Court has found that it may exercise personal
jurisdiction over Century with respect to Mr. O’Neal’s action.
For purposes of determining the proper venue for this action,
Century is therefore “deemed to reside” in this district. Venue
is thus proper in this Court under § 1391(c)(2). See, e.g.,
Robinson, 304 F. Supp. 2d at 1242 (citing Icon Indus. Controls
Corp. v. Cimetrix, Inc., 921 F. Supp. 375, 382 (W.D. La. 1996)).

33

In this case, venue is also proper under 28 U.S.C.
§ 1391(b)(2), which permits bringing suit in “a judicial district
in which a substantial part of the events or omissions giving
rise to the claim occurred.” 28 U.S.C. § 1391(b)(2). Many of the
events that form the basis of Mr. O’Neal’s claims occurred in
Hawai’i, including the various injuries that he allegedly
suffered as a result of Century’s delays, the failure to replace
his first case manager, and the replacement of his second nurse
case manager by a less qualified individual. Moreover, the
alleged defamation and slander, although cursorily alleged, also
appears to have occurred in Hawai’i. Even if Century’s decisions
were all taken in the CNMI, clearly a “substantial part” of the
events giving rise to Mr. O’Neal’s claims occurred in Hawai’i.
Venue is thus also proper in this Court under § 1391(b)(2).9/
Therefore, the Court DENIES Century’s Motion to
Dismiss.
III. Transfer of Venue
Century argues that, even if venue in Hawai’i is
proper, this action should be transferred to the District of the
Northern Mariana Islands “for the convenience of the parties and
witnesses, in the interest of justice,” under 28 U.S.C.
§ 1404(a).

9/

Because venue lies in Hawai’i, the Court need not
consider Mr. O’Neal’s alternative argument that the Court should
transfer venue under under 28 U.S.C. § 1406(a) rather than
dismiss the case. Opp. at 26.
34

Ordinarily, because the Court has personal jurisdiction
over Century and venue is otherwise proper in this district, the
Court would evaluate the merits of a transfer under § 1404(a).
However, Century overlooks a critical element of the statute:
“Transfers from a district court of the United States to . . .
the District Court for the Northern Mariana Islands . . . shall
not be permitted under this section.” 28 U.S.C. § 1404(d). There
are no reported cases applying this language, which Congress
enacted in December 2011. The plain language of § 1404(d),
however, clearly precludes transferring venue to the District of
the Northern Mariana Islands under § 1404(d).
The Court therefore DENIES Century’s Motion to Transfer
Venue.
CONCLUSION
For the foregoing reasons, the Court DENIES Century’s
Motion to Dismiss for Lack of Personal Jurisdiction and/or
Improper Venue, or in the Alternative, to Transfer Venue.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 14, 2013

________________________________
Alan C. Kay
Sr. United States District Judge

O’Neal v. Century Ins. Co., Civ. No. 13-00058 ACK RLP, Order Denying
Defendant’s Motion To Dismiss for Lack of Personal Jurisdiction and/or
Improper Venue, or in the Alternative, To Transfer Venue

35