Riley v. National Association of Marine Surveyors, Inc. et al
Filing
31
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SOCIETY OF ACCREDITED MARINE SURVEYORS, INC.'S MOTION TO DISMISS COMPLAINT FILED MARCH 17, 2014; AND TRANSFERRING CASE TO THE MIDDLE DISTRICT OF FLORIDA re: 6 . Signed by JUDGE LESLIE E. KOBAYASHI on 7/21/2014. Excerpt of Conclusion: "[T]he Court HEREBY GRANTS the Motion insofar as SAMS [Defendant Society of Accredited Marine Surveyors, Inc.] moves to transf er venue on the basis of improper venue, and DENIES the Motion insofar as SAMS moves to dismiss the Complaint on that basis.""The Court ORDERS the Clerk of Court to TRANSFER VENUE of this case to the United States District Court for the Middle District of Florida no earlier than thirty (30) days from the date of this Order. The Clerk of Court shall close the case thereafter." [Written order follows hearing held 7/7/2014. Minutes of hearing: doc no. 30 ]. (afc)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
DONALD J. “SKIP” RILEY, JR.,, )
)
Plaintiff,
)
)
vs.
)
)
)
NATIONAL ASSOCIATION OF
MARINE SURVEYORS, INC.;
)
SOCIETY OF ACCREDITED MARINE )
SURVEYORS, INC.; JOHN DOES 1- )
)
50; JANE DOES 1-50; DOE
PARTNERSHIPS 1-50; DOE
)
)
CORPORATIONS 1-50; DOE
)
ENTITIES 1-50; AND DOE
)
GOVERNMENTAL UNITES 1-50,,
)
)
Defendants.
_____________________________ )
CIVIL NO. 14-00135 LEK-RLP
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT
SOCIETY OF ACCREDITED MARINE SURVEYORS, INC.’S
MOTION TO DISMISS COMPLAINT FILED MARCH 17, 2014; AND
TRANSFERRING CASE TO THE MIDDLE DISTRICT OF FLORIDA
Before the Court is Defendant Society of Accredited
Marine Surveyors, Inc.’s (“SAMS”) Motion to Dismiss Complaint
Filed March 17, 2014 (“Motion”), filed on April 25, 2014.1
no. 6.]
[Dkt.
Plaintiff Donald J. “Skip” Riley, Jr. (“Plaintiff”)
filed his memorandum in opposition on June 16, 2014, and SAMS
1
SAMS also filed its “Errata Regarding Page 2 of the
Memorandum in Support of Motion to Dismiss Complaint Filed March
17, 2014, Filed April 25, 2014 [ECF 6]” (“Errata”) on April 25,
2014. [Dkt. no. 8.] On June 13, 2014, Defendant National
Association of Marine Surveyors, Inc. (“NAMS”) filed its
statement of no opposition. [Dkt. no. 19.]
filed its reply on June 23, 2014.2
[Dkt. nos. 20, 25.]
This matter came on for hearing on July 7, 2014.
After careful
consideration of the Motion, supporting and opposing memoranda,
and the arguments of counsel, SAMS’s Motion is HEREBY GRANTED IN
PART AND DENIED IN PART, and the case is HEREBY TRANSFERRED to
the Middle District of Florida for the reasons set forth below.
BACKGROUND
On March 17, 2014, Plaintiff, a Hawai`i resident and
owner of a marine surveyor business based in Hawai`i, filed his
Complaint against SAMS, a Florida corporation, and NAMS, a
Virginia corporation (collectively, “Defendants”), asserting
diversity jurisdiction, pursuant to 28 U.S.C. § 1332.
[Complaint
at ¶¶ 1-6.]
Plaintiff alleges that he was a member of SAMS and
NAMS, from approximately 1988 and 1993, respectively.
¶¶ 7-8.]
[Id. at
On January 31, 2006, R.D. Stewart, assisted by Ward
Graessle – who was Plaintiff’s competitor and a member of NAMS’s
ethics committee – filed a grievance against Plaintiff with both
NAMS and SAMS (“Stewart Grievance”).
2
[Id. at ¶¶ 11-15.]
On June 25, 2014, SAMS also filed its “First Amended Reply
in Opposition to [ECF No. 20] Plaintiff’s Memorandum in
Opposition to Motion to Dismiss Complaint Filed March 17, 2014,
Filed April 25, 2014” (“Amended Reply”). [Dkt. no. 26.] The
Amended Reply corrects a filing error and, therefore, any
discussion of SAMS’s reply in this Order refers to the Amended
Reply.
2
Plaintiff alleges that SAMS immediately suspended his membership
and NAMS initiated a biased investigation.
[Id. at ¶¶ 16, 31.]
The Complaint focuses on SAMS’s and NAMS’s purportedly faulty
investigations of the Stewart Grievance, in which Defendants
allegedly communicated between each other and colluded, see,
e.g., id. at ¶¶ 12, 19, 29, 66, 84-85, while failing to include
Plaintiff or provide information to him and otherwise follow
their own member agreements and bylaws.
The process culminated
in Plaintiff’s resignation from NAMS, which SAMS used as an
admission of guilt and pretext for terminating Plaintiff’s SAMS
membership.
[Id. at ¶¶ 66, 84-85.]
Plaintiff alleges that,
years later, even after admitting that the investigations were
improper, Defendants continued to obstruct Plaintiff’s
reinstatement.
[Id. at ¶¶ 76-110.]
In essence, Plaintiff
alleges that Defendants blackballed him and that, since he did
not belong to SAMS and NAMS, his customers ceased doing business
with him, and his company failed.
The Complaint alleges the following claims against both
SAMS and NAMS: breach of contract for violating its membership
agreements with Plaintiff in pursuing the investigations and
effectively terminating his memberships (“Count I”); breach of
implied contract for failing to adhere to their own bylaws and
rules (“Count II”); continuing breach of contract (“Count III”);
breach of the covenant of good faith and fair dealing
3
(“Count IV”); negligent and/or intentional misrepresentation
(“Count V”); negligent infliction of emotional distress
(“Count VI”); intentional infliction of emotional distress
(“Count VII”); injunctive relief (“Count VIII”); and reservation
of rights (“Count IX”).
[Id. at ¶¶ 111-51.]
Plaintiff seeks the following relief: general, special,
consequential, incidental, and actual damages; punitive damages;
treble damages; attorneys’ fees; pre- and post-judgment interest;
and all other appropriate relief.
[Id. at pgs. 30-31, ¶¶ A-F.]
DISCUSSION
In the Motion, SAMS argues that Plaintiff’s claims
against it should be severed from his claims against NAMS,
reasoning that Plaintiff improperly joined SAMS, pursuant to
Federal Rules of Civil Procedure 20 and 21.
SAMS also argues
that the Court should dismiss the Complaint as to it for improper
venue or, in the alternative, transfer the case to the Middle
District of Florida, where SAMS is headquartered.
of Motion at 1-2 (as modified by Errata at 2).]
[Mem. in Supp.
The Court
considers each of these arguments in turn.
I.
Misjoinder
SAMS argues that it and NAMS are “completely separate
entities” with different officers, bylaws, mainland locations,
and investigation procedures, and allowing joinder of Plaintiff’s
claims against Defendants permits Plaintiff to improperly create
4
diversity jurisdiction in the district where he resides.
[Id. at
5-6.]
This Court, however, does not read the Complaint as a
sham to create diversity jurisdiction.
Rather, viewed in the
light most favorable to Plaintiff, the Complaint alleges a
conspiracy between Defendants to harm Plaintiff.
See Lilly v.
ConAgra Foods, Inc., 743 F.3d 662, 664 (9th Cir. 2014) (“All
well-pleaded allegations of material fact in the complaint are
accepted as true and are construed in the light most favorable to
the non-moving party.” (citation and internal quotation marks
omitted)).
For example, on March 21, 2006, SAMS’s ethics
committee chair, Jim Sepel, advised NAMS board member James E.
Wood of details regarding SAMS’s plan to terminate Plaintiff’s
membership; [Complaint at ¶ 29;] and on June 7, 2007, SAMS
admitted to Plaintiff that its termination of Plaintiff’s SAMS
membership was based on Plaintiff’s resignation from NAMS [id. at
¶ 66].
This shows that, if the allegations in the Complaint are
accepted as true, Defendants’ decisions were not made
independently, and Plaintiff’s claims against Defendants are
intertwined.
Further, even if the investigations were not actively
coordinated, Plaintiff’s claims against Defendants arise from the
same series of transactions, and involve common issues of fact
and law.
Federal Rule of Civil Procedure 20(a)(2) provides, in
5
pertinent part, “[p]ersons . . . may be joined in one action as
defendants if: (A) any right to relief is asserted against them
. . . arising out of the same transaction, occurrence, or series
of transactions or occurrences; and (B) any question of law or
fact common to all defendants will arise in the action.”
Plaintiff’s claims against SAMS and NAMS were both set in motion
by a common set of facts, and involve parallel and interrelated
investigations, which resulted in what Plaintiff alleges is a
single harm.
The Court finds that the claims against SAMS and
NAMS arise from the same series of transactions and there will
likely be common issues of fact and law.
Thus, this is not a
case of improper joinder, for which severance is available under
Rule 21.
See Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir.
1997) (“If the test for permissive joinder is not satisfied, a
court, in its discretion, may sever the misjoined parties, so
long as no substantial right will be prejudiced by the
severance.” (citations omitted)).
The Court, therefore, DENIES
the Motion insofar as SAMS moves for severance of Plaintiff’s
claims against it based on misjoinder.
II.
Improper Venue
SAMS argues that venue in this district is improper
because SAMS has no presence in Hawai`i and the events giving
rise to the Complaint occurred in Florida.
Motion at 5; Amended Reply at 4-11.]
6
[Mem. in Supp. of
28 U.S.C. § 1391(b) provides, in relevant part,
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; [or]
(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[.]
The statute defines residency, in pertinent part, as follows:
For all venue purposes -. . .
(2) an entity with the capacity to sue and be
sued in its common name under applicable law,
whether or not incorporated, shall be deemed
to reside, if a defendant, in any judicial
district in which such defendant is subject
to the court’s personal jurisdiction with
respect to the civil action in question and,
if a plaintiff, only in the judicial district
in which it maintains its principal place of
business . . .
28 U.S.C. § 1391(c) (emphases added).
A.
Residency
SAMS argues that the Court cannot consider it a
resident for venue purposes because it is not subject to personal
jurisdiction in Hawai`i.
The Court agrees.
Regarding proving personal jurisdiction over a
defendant, this district court has explained:
The district court considers two factors
7
before exercising personal jurisdiction over a
nonresident defendant in a diversity of
citizenship case: “(1) whether an applicable state
rule or statute potentially confers jurisdiction
over the defendant; and (2) whether assertion of
such jurisdiction accords with constitutional
principles of due process.” Flynt Distrib. Co. v.
Harvey, 734 F.2d 1389, 1392 (9th Cir. 1984). “The
jurisdictional inquiries under state law and
federal due process merge into one analysis” when,
as here, the state’s long-arm statute is
“co-extensive with federal due process
requirements.” Roth v. Garcia Marquez, 942 F.2d
617, 620 (9th Cir. 1991). See Cowan v. First Ins.
Co. of Hawaii, 61 Haw. 644, 649, 608 P.2d 394, 399
(1980) (Hawaii’s long-arm statute, Haw. Rev. Stat.
§ 634–35, was adopted to expand the jurisdiction
of Hawaii’s courts to the extent permitted by the
due process clause of the Fourteenth Amendment).
Accordingly, personal jurisdiction over [the
defendant] depends on federal due process
requirements.
The Due Process Clause protects a person’s
“liberty interest in not being subject to the
binding judgments of a forum with which he has
established no meaningful ‘contacts, ties, or
relations.’” Burger King Corp. v. Rudzewicz, 471
U.S. 462, 471–72, 105 S. Ct. 2174, 85 L. Ed. 2d
528 (1985) (quoting Int’l Shoe Co. v. Washington,
326 U.S. 310, 319, 66 S. Ct. 154, 90 L. Ed. 95
(1945)). The Due Process Clause requires that
defendants have “certain minimum contacts with
[Hawaii] such that the maintenance of the suit
does not offend traditional notions of fair play
and substantial justice.” Int’l Shoe, 326 U.S. at
316, 66 S. Ct. 154; Data Disc, Inc. v. Systems
Tech. Assocs., Inc., 557 F.2d 1280, 1287 (9th Cir.
1977). The minimum contacts required mean that
the defendant must have purposefully availed
itself of the privilege of conducting activities
within the foreign jurisdiction, thereby invoking
the benefits and protections of the foreign
jurisdiction’s laws. See Asahi Metal Indus. Co.
v. Sup. Court of Cal., Solano County, 480 U.S.
102, 109, 107 S. Ct. 1026, 94 L. Ed. 2d 92 (1987).
In applying Due Process Clause requirements,
courts have created two jurisdictional concepts —
8
general and specific jurisdiction.
A court may exercise general jurisdiction
over the defendant when the defendant is a
resident or domiciliary of the forum state, or the
defendant’s contacts with the forum state are
continuous, systematic, and substantial.
Helicopteros Nacionales de Columbia, S.A. v. Hall,
466 U.S. 408, 414–16, 104 S. Ct. 1868, 80 L. Ed.
2d 404 (1984); Data Disc, 557 F.2d at 1287 (“If
the nonresident defendant’s activities within a
state are ‘substantial’ or ‘continuous and
systematic,’ there is a sufficient relationship
between the defendant and the state to support
jurisdiction even if the cause of action is
unrelated to the defendant’s forum
activities.”). . . .
Specific jurisdiction, on the other hand, may
be found when the cause of action arises out of
the defendant’s contact or activities in the forum
state. See Roth v. Garcia Marquez, 942 F.2d 617,
620 (9th Cir. 1991); Data Disc, 557 F.2d at 1287.
To ensure that the exercise of specific
jurisdiction is consistent with due process in
this particular case, this court must be satisfied
that the following have been shown:
1) the nonresident defendant must have
purposefully availed himself of the privilege
of conducting activities in the forum by some
affirmative act or conduct; 2) plaintiff’s
claim must arise out of or result from the
defendant’s forum-related activities; and
3) exercise of jurisdiction must be
reasonable.
Roth, 942 F.2d at 620–21.
Maui Elec. Co. v. Chromalloy Gas Turbine, LLC, 942 F. Supp. 2d
1035, 1041-42 (D. Hawai`i 2013) (some alterations in Maui Elec.)
(footnote omitted).
Plaintiff argues that SAMS is subject to
both general and specific jurisdiction in Hawai`i.
9
[Mem. in Opp.
at 5-12.3]
The Court first considers whether it has specific
jurisdiction over SAMS.
In examining the purposeful availment
requirement, this court analyzes “whether the
defendant’s contacts with the forum are
attributable to his own actions or are solely the
actions of the plaintiff.” Roth, 942 F.2d at 621;
see also Gray & Co. v. Firstenberg Mach., Co., 913
F.2d 758, 760 (9th Cir. 1990). However, the
defendant need not have been physically present or
have had physical contact with the forum state, so
long as the defendant’s efforts were “purposefully
directed” toward a forum resident. Panavision
Int’l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th
Cir. 1998) (citing Ballard v. Savage, 65 F.3d
1495, 1498 (9th Cir. 1995)).
Dinnerman v. Douter Coffee Co., Civil No. 07-00164 SOM-BMK, 2007
WL 1701919, at *4 (D. Hawai`i June 8, 2007).
The test for purposeful availment depends on whether
the claim sounds in contract or in tort.
3
Plaintiff’s Counts I-IV
As an initial matter, Plaintiff relies on the Declaration
of Donald J. “Skip” Riley, Jr. (“Riley Declaration”) in arguing
that the Court has jurisdiction over SAMS and, in the Amended
Reply, SAMS relies on two exhibits and the Declaration of Downing
Nightingale, Jr. (“Nightingale Reply Declaration”) to rebut the
Riley Declaration. Since the Court considers this evidence,
which was neither attached to nor referred to in the Complaint,
it treats the portion of the Motion seeking dismissal or transfer
for failure of jurisdiction as a motion for summary judgment
under Rule 56, and applies summary judgment standards. See Fed.
R. Civ. P. 56(d); Shroyer v. New Cingular Wireless Servs., Inc.,
622 F.3d 1035, 1041 n.6 (9th Cir. 2010) (when materials are
considered outside of the complaint, the “motion should be
converted into one for summary judgment”).
10
are contract claims, and Counts V-VII are tort claims.4
For
contract claims, this district court has stated:
A contract with an effect in the forum state does
not, by itself, automatically establish the
minimum contacts necessary for the exercise of
personal jurisdiction over a nonresident
defendant. Burger King, 471 U.S. at 478.
Instead, a court must examine the circumstances
surrounding the contract in determining whether
there have been the required minimum contacts.
Accordingly, this court examines “prior
negotiations and contemplated future consequences,
along with the terms of the contract and the
parties’ actual course of dealing.” See id. at
479. “Parties who ‘reach out beyond one state and
create continuing relationships and obligations
with citizens of another state’ are subject to
regulation and sanctions in the other State for
the consequences of their activities.” Id. at 473
(quoting Travelers Health Ass’n. v. Virginia, 339
U.S. 643, 647 (1950)). “Thus, if the defendant
directly solicits business in the forum state, the
resulting transactions will probably constitute
the deliberate transaction of business invoking
the benefits of the forum state’s laws.” Decker
Coal Co. v. Commonwealth Edison Co., 805 F.2d 834,
840 (9th Cir. 1986).
Id. at *6.
SAMS has shown that it does not: maintain an office,
collect money, sell goods, or own property in Hawai`i; solicit
members or market in Hawai`i; or require marine surveyors in
Hawai`i to join it.
[Nightingale Reply Decl. at ¶¶ 3, 7-8.]
Further, as of June 2014, SAMS had only six members in Hawai`i.
4
The Court notes that Counts VIII and IX are requests for
relief and not independent causes of action. See, e.g., Algal
Partners, L.P. v. Santos, Civil No. 13-00562 LEK-BMK, 2014 WL
1653084, at *2 n.2 (D. Hawai`i Apr. 23, 2014).
11
[Id., Exh. 1.]
Viewing the evidence in the light most favorable to
Plaintiff, there is a genuine dispute as to whether SAMS had a
mentorship program in Hawai`i, held a meeting in Hawai`i, and
distributed its directory of members in Hawai`i.
[Mem. in Opp.,
Decl. of Lahela H. F. Hite, Exh. A; Riley Decl. at ¶ 3.]
Even if
these facts were true, however, the Court concludes that they are
insufficient to support a finding that SAMS purposefully availed
itself of Hawai`i for Plaintiff’s contract claims.
See Crowley
v. Bannister, 734 F.3d 967, 976 (9th Cir. 2013) (at summary
judgment, the court “must determine, viewing the facts in the
light most favorable to the nonmoving party, whether there are
any genuine issues of material fact and whether the district
court correctly applied the relevant substantive law” (citation
and quotation marks omitted)).
SAMS does not solicit business in
Hawai`i or negotiate in Hawai`i, and any obligations it has in
Hawai`i are extremely limited.
at *6.
See Dinnerman, 2007 WL 1701919,
Thus, the Court finds that Plaintiff fails to raise a
genuine dispute that SAMS purposefully availed itself of the
privilege of conducting business in Hawai`i.
Similarly, the Court finds that SAMS did not
purposefully direct its actions, which gave rise to Plaintiff’s
tort claims, at Hawai`i.
The Ninth Circuit has held that to
prove purposeful availment in the tort context, “the defendant
12
allegedly must 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.”
Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1128
(9th Cir. 2010) (citation and internal quotation marks omitted).
There is nothing in the Complaint (or in Plaintiff’s supporting
documents) that shows that SAMS expressly aimed its actions at
the forum state.
Thus, the Court finds that Plaintiff fails to
satisfy the purposeful direction prong of the specific
jurisdiction test.
The Court also finds that Plaintiff’s claims do not
arise from the forum-related contacts, as required by the second
prong of the specific jurisdiction test.
“Courts in the Ninth
Circuit use a ‘but for’ test to determine whether a claim arises
out of forum-related activities.”
Trade W., Inc. v. Dollar Tree,
Inc., Civ. No. 12-00606 ACK-BMK, 2013 WL 1856302, at *7 (D.
Hawai`i Apr. 30, 2013) (citing Menken v. Emm, 503 F.3d 1050, 1058
(9th Cir. 2007)).
As SAMS argues, “the only events that took
place in Hawaii were the unethical acts of Plaintiff which led to
the charges of ethics violations made against” Plaintiff.
[Amended Reply at 7.]
All other events, including Plaintiff’s
application for membership, the investigations of the Stewart
Grievance, and the revocation of membership, occurred in Florida.
Thus, the claims do not arise from any Hawai`i contacts.
13
Finally, since SAMS has no presence in Hawai`i, it has
not purposefully injected itself here, most witnesses and
evidence are in Florida, and there are alternate forums, it would
be unreasonable for this Court to exercise jurisdiction over SAMS
under the circumstances of this case.
See CollegeSource, Inc. v.
AcademyOne, Inc., 653 F.3d 1066, 1079 (9th Cir. 2011) (describing
the seven factors balanced in determining “whether the exercise
of jurisdiction comports with ‘fair play and substantial justice’
and is therefore reasonable” (citation omitted)).
The Court
therefore finds that it does not have specific jurisdiction over
SAMS.
While specific jurisdiction requires the specific
events to arise from contact with the state, general jurisdiction
requires contacts that are “continuous and systematic.”
Helicopteros Nacionales, 466 U.S. at 414–16.
Since this Court
does not have specific jurisdiction over SAMS here, it follows
that it does not have general jurisdiction either.
See
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th
Cir. 2004) (holding that the general jurisdiction standard “is 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” (citation omitted)).
Since there is no dispute of
material fact as to whether the Court has general or specific
14
jurisdiction over SAMS, the Court FINDS that SAMS is not a
Hawai`i resident for venue purposes.
B.
Other Grounds for Venue
The Court also rejects the other two potential grounds
for venue.
First, Plaintiff does not allege that “a substantial
part of the events or omissions giving rise to the claim
occurred” in Hawai`i.
Instead, the Complaint shows that most of
the events surrounding the investigations occurred in Florida and
Virginia.
Second, Plaintiff cannot show that a “substantial part
of property that is the subject of the action is situated” in
Hawai`i.
The only conceivable property interest in this case is
Plaintiff’s interest in his SAMS and NAMS memberships.
At the
hearing, Plaintiff’s counsel argued that case law supports a
property interest in Plaintiff’s SAMS membership.
Plaintiff,
however, does not cite to any such case law in his memorandum in
opposition to the Motion, and the Court is not aware of any.
Thus, this basis for venue fails.
Since SAMS is not a resident
of Hawai`i, pursuant to 28 U.S.C. § 1391(c)(2), no substantial
part of the events occurred in Hawai`i, and there is no property
interest at issue in this case, the Court FINDS that venue in
this district is not proper.
C.
Transfer
Where venue is improper, “the case must be dismissed or
15
transferred under § 1406(a).”
Atl. Marine Constr. Co. v. U.S.
Dist. Ct. for W. Dist. of Tex., 134 S. Ct. 568, 577 (2013).
28
U.S.C. § 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.”
The Court finds that this case could have been brought
in the Middle District of Florida, specifically, Jacksonville,
which is the principal place of business and headquarters of
SAMS.
Although the record is silent on whether NAMS is subject
to personal jurisdiction in the Middle District of Florida (and
the Court does not here decide that issue), the Court finds that
a substantial part of the events occurred in that district, and
thus venue is proper there.5
Further, the Court FINDS that
transfer would be in the interests of justice.
Thus, the Court HEREBY GRANTS the Motion insofar as
SAMS moves to transfer venue on the basis of improper venue, and
5
Even if the Court found that there were insufficient
events giving rise to the claim in Florida or in Virginia, there
would be venue in the Middle District of Florida under 28 U.S.C.
§ 1391(b)(3), since SAMS is subject to jurisdiction there. See
28 U.S.C. § 1391(b) (“A civil action may be brought in – . . .
(3) if there is no district in which an 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.”).
16
DENIES the Motion insofar as SAMS moves to dismiss the Complaint
on that basis.
The Court therefore TRANSFERS VENUE to the United
States District Court for the Middle District of Florida for
further proceedings.
CONCLUSION
On the basis of the foregoing, SAMS’s Motion to Dismiss
Complaint Filed March 17, 2014, filed on April 25, 2014, is
HEREBY GRANTED IN PART AND DENIED IN PART.
The Court ORDERS the
Clerk of Court to TRANSFER VENUE of this case to the United
States District Court for the Middle District of Florida no
earlier than thirty (30) days from the date of this Order.
The
Clerk of Court shall close the case thereafter.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, July 21, 2014.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
DONALD J. SKIP RILEY VS. NATIONAL ASSOCIATION OF MARINE
SURVEYORS, INC., ET AL; CIVIL 14-00135 LEK-RLP; ORDER GRANTING IN
PART AND DENYING IN PART DEFENDANT SOCIETY OF ACCREDITED MARINE
SURVEYORS, INC.’S MOTION TO DISMISS COMPLAINT FILED MARCH 17,
2014; AND TRANSFERRING CASE TO THE MIDDLE DISTRICT OF FLORIDA
17
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