DeSantos et al v. Bourland et al
Filing
44
ORDER DENYING DEFENDANTS' MOTION TO DISMISS AND GRANTING PLAINTIFFS' MOTION FOR TRANSFER OF VENUE re: 12 . Signed by JUDGE ALAN C KAY on 5/27/2015. "The Clerk of the Court is directed to transfer this action t o the Western District of Washington...." (afc) Written order follows hearing held May 8, 2015 on Defendant's Motion to Dismiss (doc 12 ) and on Plaintiffs' Oral Motion for Transfer of Ve nue. Minutes of hearing: doc no. 41 . 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
KENNETH DESANTOS, NILDA
DESANTOS, GREGORIO LOMIBAO, and
NORMA LOMIBAO,
Plaintiffs,
v.
LAURA LEE BOURLAND, HALLIDAY
ASSOCIATES, INC., a Washington
Corporation, and DOES 1-10,
Defendants.
) Civ. No. 14-00473 ACK-KSC
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ORDER DENYING DEFENDANTS’ MOTION TO DISMISS AND GRANTING
PLAINTIFFS’ MOTION FOR TRANSFER OF VENUE
For the following reasons, the Court DENIES Defendants’
Motion to Dismiss without prejudice, GRANTS Plaintiffs’ Motion
for Transfer of Venue, and transfers this case to the Western
District of Washington.
FACTUAL BACKGROUND1/
This case arises out of an automobile accident that
occurred on March 6, 2012 in Las Vegas, Nevada. Plaintiffs
Kenneth and Nilda DeSantos are married and citizens of the State
of Hawaii. (FAC ¶ 1.) Plaintiffs Gregorio and Norma Lomibao,
Gregorio DeSantos’s in-laws, are citizens of the Philippines.
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.
(Id. ¶ 2.) Defendant Laura Lee Bourland (“Bourland”) is a citizen
of the State of Washington, and Defendant Halliday Associates,
Inc. (“Halliday”) is a corporation doing business in the State of
Washington. (Id. ¶¶ 3-4.)
Plaintiffs allege that, on March 6, 2012, they were
driving in a Dodge Grand Caravan rental in Las Vegas, and were
hit from behind while waiting at a traffic light. (FAC ¶ 8.)
Plaintiffs allege that they were hit by a sports utility vehicle
driven by Defendant Bourland, who was at the time employed by,
and acting within the scope of her employment with, Defendant
Halliday. (Id.) Plaintiffs allege that the collision was the
result of Bourland’s negligence. (Id. ¶ 9.)
PROCEDURAL BACKGROUND
On October 16, 2014, Plaintiffs filed their original
Complaint against Defendants. (Doc. No. 1.) Plaintiffs filed
their First Amended Complaint on December 3, 2014. (Doc. No. 9
(“FAC”).) In their First Amended Complaint, Plaintiffs allege
that, as a result of Defendants’ negligence, they have suffered
“permanent bodily injury, shock and embarrassment, pain of body
and mind, and emotional and mental distress,” and have incurred
medical costs in excess of $5,000. (FAC ¶¶ 10-12.) Plaintiff
Nilda DeSantos additionally alleges that she “has sustained and
will continue to sustain wage losses and/or impairment of earning
capacity.” (Id. ¶ 12.) Plaintiffs seek general and special
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damages in an amount to be proven at trial.
On January 12, 2015, Defendants filed the instant
Motion to Dismiss, seeking dismissal of the First Amended
Complaint on the basis of a lack of personal jurisdiction. (Doc.
No. 12.) On March 16, 2015, Plaintiffs filed their memorandum in
opposition to the motion. (Doc. No. 37.) Defendants filed their
reply on April 20, 2014. (Doc. No. 39.)
A hearing on the motion was held on May 8, 2015. During
the hearing, Plaintiffs made an oral motion for transfer of venue
should the Court find it lacks personal jurisdiction over
Defendants. The Court therefore requested further briefing on
Plaintiffs’ motion, and on May 13, 2015, Defendants filed their
Memorandum in Opposition to Plaintiffs’ Oral Motion for Transfer
of Venue. (Doc. No. 42.) Plaintiffs filed their reply in support
of the motion on May 18, 2015. (Doc. No. 43.)
STANDARD
The Court’s exercise of personal jurisdiction over a
party may be challenged under Federal Rule of Civil Procedure
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).
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When the Court rules without conducting an evidentiary
hearing, “the plaintiff need only make a prima facie showing of
jurisdictional facts” to avoid dismissal. Wash. Shoe Co. v. A-Z
Sporting Goods Inc., 704 F.3d 668, 672 (9th Cir. 2012). The Court
must take as true all uncontroverted facts in 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.
DISCUSSION
I.
Personal Jurisdiction
In their motion, Defendants seek dismissal of
Plaintiffs’ First Amended Complaint in its entirety on the basis
that the Court lacks personal jurisdiction over them. Because
there is no applicable federal statute governing personal
jurisdiction in this case, the Court applies Hawaii state law.
Fed. R. Civ. P. 4(k)(1)(A); Wash. Shoe, 704 F.3d at 672. Hawaii’s
long-arm statute, Hawaii Revised Statutes § 634–35, reaches to
the full extent permitted by the Constitution. Cowan v. First
Ins. Co., 608 P.2d 394, 399 (Haw. 1980). The relevant question,
therefore, is whether the requirements of Constitutional due
process are satisfied by the exercise of personal jurisdiction
over the Defendants in Hawaii.
It is undisputed that Defendants are not citizens or
4
residents of Hawaii, and are rather citizens of the State of
Washington. (FAC ¶¶ 3-4.) For a court to exercise personal
jurisdiction over a non-resident defendant, due process requires
that the defendant “have certain minimum contacts with [the
forum] such that the maintenance of the suit does not offend
‘traditional notions of fair play and substantial justice.’”
Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Due
process is satisfied if the Court has either “general
jurisdiction” or “specific jurisdiction” over the defendant. Doe
v. Am. Nat’l Red Cross, 112 F.3d 1048, 1050 (9th Cir. 1997).
Defendants assert that the Court has neither. Plaintiffs concede
that the Court does not have specific personal jurisdiction (as
there is no affiliation between the forum and the underlying
controversy), but nevertheless argue that the Court has general
personal jurisdiction over the Defendants. (Opp’n at 2.)
“A court may assert general jurisdiction over foreign
(sister-state or foreign-country) persons and 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 Dunlop Tires
Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011). For
general jurisdiction to exist over nonresident defendants such as
the Defendants here, the defendants must engage in “continuous
and systematic general business contacts” that “approximate
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physical presence” in the forum state. CollegeSource, 653 F.3d at
1074 (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall,
466 U.S. 408, 416 (1984) and Bancroft & Masters, Inc. v. Augusta
Nat’l, Inc., 223 F.3d 1082, 1086 (9th Cir. 2000)). The standard
for general jurisdiction “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.” Schwarzenegger v. Fred
Martin Motor Co., 374 F.3d 797, 801 (9th Cir. 2004).
To determine whether a nonresident defendant’s contacts
are sufficiently substantial, continuous, and systematic, the
Court must consider their “[l]ongevity, continuity, volume,
economic impact, physical presence, and integration into the
state’s regulatory or economic markets.” CollegeSource, 653 F.3d
at 1074 (quoting Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d
1163, 1172 (9th Cir. 2006)). Here, the Court concludes that
Plaintiffs have not satisfied the “exacting” standard necessary
for the Court to exercise general jurisdiction over Defendants.
Defendants have no employees or agents in Hawaii, do no business
here, and own no property here. Their scant contacts with the
forum simply cannot be said to be continuous, systematic, or
substantial.
Plaintiffs nevertheless argue that the Court may
exercise general jurisdiction over Defendants because: (1)
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Bourland has vacationed in Hawaii at least three times, during
which time she checked her work email on her phone; (2) Bourland
contributed to an architecture book that may be purchased in
Hawaii; and (3) Halliday has a business relationship with the DLR
Group, a company that is involved in a school project in Waipahu,
Hawaii.
First, as to Bourland’s vacations in Hawaii, they fall
far short of establishing the type of “continuous and systematic
general business contacts” that “approximate physical presence”
in Hawaii. See CollegeSource, 653 F.3d at 1074. Apparently,
Bourland has vacationed in the State of Hawaii three times, and
during each vacation she paid for lodging, car rentals, food, and
recreational activities, and paid the associated Hawaii state
taxes on all of these expenditures. (Opp’n at 9-17.) Bourland
also checked her work email on her phone up to ten times while
traveling in Hawaii. (Id. at 10.)
Plaintiffs can point to no case, and the Court’s own
research has revealed none, suggesting that the activities of a
typical tourist on vacation are sufficient to give rise to
general jurisdiction. Indeed, courts have found much more
substantial contacts to be insufficient under the exacting
standard for general jurisdiction. See, e.g., Helicopteros
Nacionales, 466 U.S. at 416-417 (finding no general jurisdiction
over a Columbia corporation by a Texas court where the company’s
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contacts with Texas consisted of: (1) sending its CEO to Houston
for a contract negotiation, (2) depositing checks drawn on a
Houston bank, (3) purchasing helicopters and training services
from a Texas corporation, and (4) sending employees to Texas for
training); CollegeSource, 653 F.3d at 1074 (finding no general
jurisdiction in California where the defendant misappropriated
the plaintiff’s catalogs and course descriptions in California,
marketed its services to California students, had three hundred
registered users and two paid subscribers in California, and had
a highly interactive website used by California citizens); Hawaii
Airboards, LLC v. Northwest River Suppliers, Inc., 887 F. Supp.
2d 1068 (D. Haw. 2012) (finding no general jurisdiction in Hawaii
where defendant had made between 250 and 275 sales in Hawaii,
totaling about $45,000, but only one-tenth of one percent of
defendant’s total sales). Thus, Bourland’s vacations to Hawaii
and activities while here were merely “a few discrete acts,”
rather than a “continuous and systematic” pattern, and are simply
insufficient to confer general jurisdiction over Defendants.
CollegeSource, 653 F.3d at 1074.
Similarly, Bourland’s contribution to an architecture
book that is available for purchase in Hawaii is likewise a far
cry from the continuous and systematic forum contacts required
for the Court to exercise general jurisdiction over Defendants.
Apparently, Bourland provided some of the illustrations in the
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book, Commercial Drafting and Detailing, which may be purchased
online, including, presumably, by customers in Hawaii. (Pl.’s
CSF, Ex. 3.) Plaintiffs do not allege that Defendants themselves
market the book in Hawaii or otherwise solicit business in the
state. Nor do Plaintiffs assert that Defendants themselves
(rather than the book’s author or publisher) are actually selling
the book at all. The mere fact that a book with some
illustrations by Bourland may end up, though the normal stream of
commerce, being sold to a Hawaii resident, does not in itself
come close to satisfying the exacting standard for general
jurisdiction. See, e.g., Goodyear, 131 S. Ct. at 2852 (finding no
general jurisdiction over foreign subsidiaries of Goodyear USA in
North Carolina where some tires made by them did end up in North
Carolina through the normal stream of commerce, but there was no
evidence in the record that the foreign subsidiaries “took any
affirmative action to cause tires which they had manufactured to
be shipped into North Carolina.”).
Finally, the Court also rejects Plaintiffs’ argument
that Defendant Halliday’s business relationship with the DLR
Group, a company that does some business in Hawaii, somehow
confers general jurisdiction over Defendants in Hawaii.
Plaintiffs attempt to make much of the fact that the DLR Group is
involved in a construction project for the Waipahu Intermediate
School on Oahu. (Opp’n at 17-20.) Defendant Bourland testified in
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her deposition, however, that Halliday has no involvement with
that project, or any other project the DLR Group may have in
Hawaii. (Pl.’s CSF, Ex. 1 at 21, 35-36, 39.) Defendants do not
dispute that they have done a number of projects for the DLR
Group in other states, but there is no evidence before the Court
that they have ever done work for the company in Hawaii.
Defendants’ business relationship with a company that, separate
and apart from that relationship, happens to do some business in
Hawaii, is not a sufficient contact with the forum state to
establish general jurisdiction. See Walden v. Fiore, 134 S. Ct.
1115, 1122-23 (2014) (stating that “a defendant’s relationship
with a . . . third party [who is subject to jurisdiction in a
forum], standing alone, is an insufficient basis for
jurisdiction”); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478
(1985) (“If the question is whether an individual’s contract with
an out-of-state party alone can automatically establish
sufficient minimum contacts in the other party’s home forum, we
believe the answer clearly is that it cannot.”).
In sum, the Court concludes that Plaintiffs have failed
to meet their burden of demonstrating that the Court has general
personal jurisdiction over Defendants. Plaintiffs concede, and
the Court agrees, that there is no specific jurisdiction here.2/
2/
Curiously, despite conceding that there is no specific
jurisdiction over the instant dispute, Plaintiffs nevertheless
(continued...)
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(Opp’n at 2.) As such, the Court finds that Plaintiffs have
failed to demonstrate that the Court has personal jurisdiction
over Defendants.
II.
Transfer of Venue
As noted above, at the hearing on this matter,
Plaintiffs’ counsel requested that this Court transfer venue
instead of dismissing the case outright, should the Court
conclude that personal jurisdiction is lacking. Having found that
it lacks personal jurisdiction over Defendants, the Court
therefore turns to Plaintiffs’ motion for transfer of venue.
Plaintiff seeks transfer to the U.S. District Court for the
Western District of Washington. (Reply at 2.)
Pursuant to 28 U.S.C. § 1391(b),
A civil action wherein jurisdiction is founded
2/
(...continued)
argue that “it is less burdensome for nonresidents to litigate
[in Hawaii].” (Opp’n at 21.) An analysis of the burden on the
defendant of defending in the forum is only made in the context
of the test for specific personal jurisdiction, which requires a
balancing of seven factors. See Harris Rutsky & Co. Ins. Svcs. v.
Bell & Clements Ltd., 328 F.3d 1122, 1132 (9th Cir. 2003). This
consideration is not relevant to the test for general
jurisdiction, which simply considers whether the defendant has
engaged in “continuous and systematic general business contacts”
that “approximate physical presence” in the forum state.
CollegeSource, 653 F.3d at 1074. Thus, the Court need not
consider Plaintiffs’ arguments regarding the convenience or
burden of the forum. Even were this factor relevant to the
Court’s analysis here, the Ninth Circuit has made clear that
“[i]n evaluating the convenience and effectiveness of relief for
the plaintiff, we have given little weight to the plaintiff’s
inconvenience.” Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316,
1324 (9th Cir. 1998).
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only on diversity of citizenship may, except as
otherwise provided by law, be brought only 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 property that
is the subject of the action is situated; or (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 an action.
Plaintiffs seek a transfer of venue pursuant to 28
U.S.C. § 1404(a) or § 1406(a). Under 28 U.S.C. § 1404(a), a
district court may transfer any civil action to any other
district or division where it might have been brought if it is in
the interests of justice and convenient for the parties and
witnesses. See also Lung v. Yachts Int’l, Ltd., 980 F. Supp.
1362, 1370 (D. Haw. 1997). Following the transfer of a diversity
case pursuant to § 1404(a), the transferee court applies the
substantive law of the transferor state. See Ferens v. John Deere
Co., 494 U.S. 516, 523 (1990).
Under § 1406(a), on the other hand, a district court
may, “in the interest of justice,” transfer an action “laying
venue in the wrong division or district” to any district or
division in which it could have been brought. 28 U.S.C.
§ 1406(a). Where a court transfers venue pursuant to § 1406(a),
the substantive law of the transferee court is applicable. See
Ukai v. Fleurvil, Civ. No. 06-00237 JMS-KSC, 2006 WL 3246615, at
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*3 (D. Haw. Nov. 7, 2006) (citing Tel-Phonic Services, Inc. v.
TBS Int’l., Inc., 975 F.2d 1134, 1141 (5th Cir. 1992); Froelich
v. Petrelli, 472 F. Supp. 756, 760 n. 5 (D. Haw. 1979)).
The Supreme Court held in Goldlawr, Inc. v. Heiman, 369
U.S. 463 (1962), that a district transferring an action under
§ 1406(a) need not have personal jurisdiction over the defendant.
Following Goldlawr, many district courts, including the District
of Hawaii, have concluded that a district court may transfer an
action under § 1404(a) regardless of whether it has personal
jurisdiction over the defendant. See Nelson v. Int’l Paint Co.,
716 F.2d 640, 643 n. 4 (9th Cir. 1983) (noting that several lower
courts have relied on Goldlawr to transfer a claim where the
transferor forum does not have personal jurisdiction over a
party); Kawamoto v. CB Richard Ellis, Inc., 225 F. Supp. 2d 1209,
1211-12 (D. Haw. 2002) (concluding that both § 1404(a) and
§ 1406(a) permit transfer of venue in the absence of personal
jurisdiction). Therefore, this court concludes that it can
transfer this action, notwithstanding the fact that it has
concluded that it lacks personal jurisdiction over Defendants.
Turning to the substance of the Motion for Transfer,
the Court concludes that, pursuant to 28 U.S.C. § 1391(b), venue
in the District of Hawaii is not proper. All of the events giving
rise to Plaintiffs’ claims occurred, or allegedly should have
occurred, in Nevada, and this Court has already determined that
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Defendant’ scant conduct in Hawaii is not sufficient to establish
personal jurisdiction. Transfer of venue is therefore proper
under § 1406(a), as that section is generally applied where the
transferor court is not a proper venue for the action. See
Kawamoto, 225 F. Supp. 2d at 2012. The Court therefore turns to
the question of whether the transfer would be in the “interest of
justice.”
Plaintiffs assert that the interest of justice would be
served by transfer because their case may be time barred should
the Court dismiss the case outright, rather than transferring
venue. The Supreme Court in Goldlawr noted that statutes of
limitations may be implicated where a plaintiff originally files
in the wrong forum, and that “the interest of justice may require
that the complaint not be dismissed but rather be transferred in
order that the plaintiff not be penalized by . . . time-consuming
and justice-defeating technicalities.” 369 U.S. at 467 (internal
quotation marks and citations omitted). Thus, the Court
acknowledged that it may be in the interest of justice to
transfer, rather than dismiss, a suit that may be subject to a
statute of limitations challenge should it be re-filed anew in a
different forum. Id.
The date of Plaintiffs’ alleged injuries in this suit
is March 6, 2012. Plaintiffs filed the instant suit in Hawaii on
October 16, 2014. (Doc. No. 1.) Under the law of Washington,
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where Defendants reside, the statute of limitations for tort
claims like those brought here is three years from the date of
injury. Wash. Rev. Code § 4.16.080 (2011). Under the law of
Nevada, where the accident occurred, an action for personal
injuries arising out of negligence must be filed within two years
of accrual. Nev. Rev. Stat. § 11.190 (2014).
Thus, were Plaintiffs required to re-file anew in
district court in Washington or Nevada, it appears that their
claims may well be considered time-barred. Dismissing this case
would therefore permanently bar Plaintiffs from seeking recovery
for damages allegedly stemming from the accident. Section 1406(a)
was enacted to enable the Court, in its discretion, to avoid
working precisely the type of unjust and harsh consequence that
would result from a dismissal of Plaintiffs’ claims due to the
procedural defects in their filing. See Goldlawr, 369 U.S. at 466
(noting that § 1406(a) was enacted to avoid “the injustice which
had often resulted to plaintiffs from dismissal of their actions
merely because they had made an erroneous guess with regard to
the existence of some elusive fact of the kind upon which venue
provisions often turn.”). On the other hand, transferring the
case allows Plaintiffs to proceed with their claims. Id. at 467
(“The filing itself shows the proper diligence on the part of the
plaintiff which such statutes of limitation were intended to
insure.”).
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Because “both Congress and the States have made clear,
through various procedural statutes, their desire to prevent
timely actions brought in courts with improper venue from being
time-barred merely because the limitation period expired while
the action was in improper court,” the Court concludes that
transfer of this case is appropriate to prevent any such
occurrence. See Oltman v. Holland Am. Line, Inc., 538 F.3d 1271,
1278 (9th Cir. 2008). The interests of justice would best be
served by trying this case in Washington, where Defendants
reside. See 28 U.S.C. § 1391(b) (stating that 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”). The Court therefore DENIES Defendants’ Motion to
Dismiss without prejudice and GRANTS Plaintiffs’ Motion for
Transfer of Venue.
CONCLUSION
For the foregoing reasons, the Court DENIES Defendants’
Motion to Dismiss without prejudice and GRANTS Plaintiffs’ Motion
for Transfer of Venue. The Clerk of the Court is directed to
transfer this action to the Western District of Washington and
close this Court’s files in this matter.
IT IS SO ORDERED.
DATED:
Honolulu, Hawaii, May 27, 2015
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________________________________
Alan C. Kay
Senior United States District Judge
DeSantos et al. v. Bourland et al., Civ. No. 14-00473 ACK KSC, Order Denying
Defendants’ Motion to Dismiss without Prejudice and Granting Plaintiffs’
Motion to Transfer Venue.
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