Taylor v. City and County of Honolulu, et al.

Filing 26

ORDER granting 7 Motion to Dismiss; granting 11 Motion to Change Venue; granting 18 Motion to Dismiss; granting 22 Motion to Change Venue. The action is transferred to the United States District Court for the District of Hawaii. Signed by Chief Judge James C. Dever III on 8/16/2017. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 7:16-CV-410-D

l'viiCHAEL JAMES TAYLOR,

)
)

Plaintiff,

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)

v.

)

ORDER

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CITY AND COUNTY OF HONOLULU,
· OAHU TRANSIT SERVICES, INC.,
and LORI K. MCl'viiLLAN,

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)
)
)

Defendants.

)

On December 15, 2016, Michael James Taylor ("Taylor" or ''plaintiff'') filed a complaint
against the City and County of Honolulu ("Honolulu"), Oahu Transit Services, Inc. ("OTS"), and
Lori K. McMillan ("McMillan") (collectively, "defendants"), asserting state-law negligence claims
. arising from a bus accident in Hawaii [D.E. 1]. On January 20, 2017, McMillan and OTS moved
to dismiss the aetion for lack of personal jurisdiction and improper venue, and in the alternative to
transfer venue to the United States District Court for the District of Hawaii [D.E. 7] and filed a
memorandum in support [D.E. 8]. On February 10, Taylorrespondedinopposition [D.E. 9, 10], and
moved in the alternative to transfer venue to the District of Hawaii [D.E. 11]. On February 23, 2017,
McMillan and OTS replied [D.E. 16].
On February 28, 2017, Honolulu moved to dismiss the action for lack ofpersonal jurisdiction
and improper venue, and in the alternative to transfer venue to the District of Hawaii [D.E. 18] and
filed a memorandum in support [D.E. 19]. On March 21, 2017, Taylor responded in opposition
[D.E. 21] and moved in the alternative to transfer venue [D.E. 22]. As explained below, the court
. grants defendants' motions to transfer, grants Taylor's motions to transfer, and transfers this action
to the United States District Court for the District of Hawaii.

I.
Taylor resides in North Carolina. Compl. [D.E. 1] ,-r 2. Honolulu is a combined city and
county government in Hawaii. ld. ,-r 3. OTS is a Hawaii corporation. Id. ,-r 4. McMillan resides in
Hawaii. Id. ,-r 5. Honolulu and OTS owned and operated a bus system known as TheBus. Id. ,-r,-r 6-7.
On December 15,2014, McMillan was employed by Honolulu and OTS as a bus driver operating
a "TheBus" bus on which Taylor was a paSsenger. ld. ,-r,-r 9, 13. The bus rapidly stopped then
accelerated, causing Taylor to fall and suffer injuries. Id. ,-r 13.
· Defendants move to dismiss under Federal Rule of Civil Procedure 12(b)(2) for lack of
personal jurisdiction. To defeat a Rule 12(b)(2) motion, a plaintiff typically must prove by a
preponderance of the evidence that the court has personal jurisdiction over the defendant. See
Grayson v. Anderson, 816 F.3d 262,268 (4th Cir. 2016); Combs v. Bakker, 886 F.2d 673,676 (4th
Cir. 1989). If a court rules on a motion to dismiss for lack of personal jurisdiction without an
.evidentiary hearing, the plaintiff need only establish a prima facie case. Combs, 886 F.2d at 676.
When determining whether the plaintiff has met this burden, courts resolve all factual disputes and
. draw all reasonable inferences in the light most favorable to the plaintiff. ld.; see Mylan Labs .• Inc.
v. Akzo. N.V., 2 F.3d 56,60 (4thCir. 1993). However, anevidentiaryhearingneednotinclude live.
testimony, but merely the opportunity for the parties to present evidence and argument on the
question of jurisdiction. Grayson, 816 F.3d at 268. After the court has considered such evidence
and argument, it determines whether a plaintiffhas proven by a preponderance of the evidence that
the court has personal jurisdiction over the defendant. ld.
A federal court may exercise personal jurisdiction over a person to the extent allowed by state
law in the state where the federal court sits. See Fed. R. Civ. P. 4(e)(1), (h)(1)(A), (k)(1)(A). The
North Carolina long-arm statute extends personal jurisdiction over out-of-state defendants in all
cases in which the Fourteenth Amendment's Due Process Clause permits. See Dillon v. Numismatic
Funding Corp., 291 N.C. 674, 676, 231 S.E.2d 629, 630--31 (1977); Century Data Sys.• Inc. v.

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McDonald, 109 N.C. App. 425, 427, 428 S.E.2d 190, 191 (1993). To determine whether the North
Carolina long-arm statute reaches a particular defendant, courts analyze whether the defendant has
sufficient minimum contacts with North Carolina such that "maintenance of the suit does not offend
traditional notions of fair play and substantial justice." Int'l Shoe Co. v. W ashingto!l, 326 U.S. 310,
316 (1945) (quotation omitted); see Dillon, 291 N.C. at 676-80,231 S.E.2d at 630-33.
Courts recognize two types of personal jurisdiction: general and specific. See Goodyear
Dunlop Tires Operations. S.A. v. Bro:wn, 564 U.S. 915, 919 (2011). Taylor does not argue that the
court has general jurisdiction over defendants. When assessing specific jurisdiction, courts consider
three factors: "(1) the extent to which the defendant has purposefully availed itself of the privilege
of conducting activities in the [forum] state; (2) whether the plaintiffs' claims arise out of those
activities directed at the state; and (3) whether the exercise of personal jurisdiction would be
constitutionally 'reasonable."' Carefirst ofMd.. Inc. v. Care:first Pregnancy Ctrs.. Inc., 334 F.3d 390,
397 (4th Cir. 2003); see Bristol-Myers Squibb Co. v. Super Ct. of Cal., 137 S. Ct. 1773, 1780-81
(2017); Walden v. Fiore, 134 S. Ct. 1115, 1122 (2014); Burger King Corp. v. Rudzewicz, 471 U.S .
. 462, 474-77 (1985). When analyzing the first two elements, courts consider only the defendant's
activities-those contacts that the defendant himselfhas created with the forum. See Bristol-Myers
Squibb Co., 137 S. Ct. at 1781-82; Walde!!, 134 S. Ct. at 1122; Burger King, 471 U.S. at 472-78.
In accordance with this principle, "[t]he substantial connection betWeen the defendant and the forum
· · State necessary for a finding of minimum contacts must come about by an action of the defendant
. purposefully directed toward the forum State." Asahi Metal Indus. Co .. Ltd. v. Super. Ct. of Cal.,
480 U.S. 102, 112 (1987) (plurality opinion) (citations and emphasis omitted); see Bristol-Myers
Squibb Co., 137 S. Ct. at 1781-82; Walde!!, 134 S. Ct. at 1122.
Taylor argues that the court has specific jurisdiction over defendants because Honolulu holds
itself out as a tourist destination, many tourists from North Carolina visit Honolulu, and because
"TheBus" is advertised on internet sites as a primary mode of transportation in Honolulu which

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makes it a mechanism for promoting tourism. Even if the court were to find that defendants'
generally-available internet postings, or the mere fact of travel from North Carolina to Hawaii,
qualified as defendants purposefully availing themselves of the privilege of conducting activities in
North Carolina, the court would still be unable to find personal jurisdiction here. Taylor cannot
show that his claims against defendants arise out of defendants' tourism promotion in North
Carolina. Taylor was not a tourist when the accident occurred. Rather, he was a resident ofHawaii
who' had lived there for years. See [D.E. 10] 8. Moreover, exercising jurisdiction over defendants
based on their operation of a bus system in a city that attracted tourists would not be constitutionally
reasonable. See Bristol-Myers Squibb Co., 137 S. Ct. at 1781-82; Walden, 134 S. Ct. at 1122-26
World-Wide Volkswagen Cor,p. v. Woodson, 444 U.S. 286,292 (1980). Therefore, this court lacks
personal jurisdiction over defendants.
Alternatively, defendants move to dismiss under Federal Rule of Civil Procedure 12(b)(3)
for improper venue. Venue is proper 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
·· (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
personaljurisdiction with respect to such action.
28U.S.C. § 1391(b). Anaturalpersonresideswhereheisdomiciled. Id. § 1391(c)(1). A corporate
entity resides in any judicial district where it is subject to the court's personal jurisdiction with
r~spectto

the case. ld. § 1391(c)(2).

To determine whether a district meets the requirements of28 U.S.C. § 1391(b)(2), courts
must focus on "the entire sequence of events underlying the claim" and "should not focus only on
those matters that are in dispute or that directly led to the filing of the action." Mitrano v. Hawes,
377 F.3d 402,405 (4th Cir. 2004) (quoting Uffner v. La Reunion Francaise. S.A., 244 F.3d 38,42

4

,(1st Cir. 2001)). Although an event need not be in dispute to be considered substantial, it must "give
rise to the claim." Id.
All defendants reside in the Hawaii, therefore, venue is proper in Hawaii under subsection
(1). As for subsection (2), a substantial part of the events or omissions giving rise to this claim
occurred in the District of Hawaii. None of the events giving rise to the claim occurred in North
Carolina. In opposition, Taylor argues that substantial events giving rise to his claim occurred in
North Carolina because he received medical care in North Carolina. See [D.E. 10] 9; [D.E. 21] 8-9.
The coinplaint, however, contains no allegation that Taylor received medical care inNorth Carolina,
and Taylor does not cite any factual support for that proposition. Even accepting as true that Taylor
did receive medical care in North Carolina, medical care in North Carolina to treat an injury suffered
. in Hawaii is not sufficient basis to conclude that a substantial part of the events or omissions giving
rise to the claim occurred in North Carolina. Information gathered during Taylor's medical treatment
. in North Carolina may have revealed the extent of Taylor's injuries, and Taylor may seek to recover

medical expenses as a measure of damages, but those events did not give rise to his claim. Taylor's
claim accrued, if at all, on a bus in Honolulu. That is where the events that "allegedly entitle[] the
plaintiff to payment" occurred. Mitrano 377 F.3d at 405. Only when Taylor entered North Carolina
after the accident did this claim touch any district in North Carolina. The venue statute, however,
protects ''the defendant against the risk that a plaintiff will select an unfair or inconvenient place of
trial." Leroy v. Great W. United Corp.. 443 U.S. 173, 184 (1979). Reading section 1391(b)(2) as
Taylor requests would eviscerate this purpose, allowing injured plaintiffs to create venue in any
judicial district by moving there after their claim has accrued. Because venue is proper in Hawaii
under section 1391(b)(1) and (2), venue cannot be proper under subsection (3). Therefore, venue
is not proper in the Eastern District ofNorth Carolina.
A court need not have personal jurisdiction over a defendant to transfer a case pursuant to
28 U.S.C. §§ 1404(a) or 1406(a). See Goldlawr. Inc. v. Heimm1369 U.S. 463,466 (1962); O'Neal
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v. Hicks Brokerage Co., 537 F.2d 1266, 1268 (4th Cir. 1976). Questions regarding transfer under
section 1404(a) are committed to the sound discretion of the district court. See, !b&, Stewart Org..
· · Inc. v. Ricoh Com., 487 U.S. 22, 29 (1988); Brock v. Entre Computer Ctrs.• Inc., 933 F.2d 1253,
1257 (4th Cir. 1991). Under 28 U.S.C. § 1404(a), a district court may transfer a case for the
convenience of the parties and witnesses, in the interest of justice, to any other district where the
. action might have been brought, or to any district to which all parties consent. Additionally, a
district court may dismiss an action, or if it is in the interest of justice, transfer an action if venue is
improper in the transferor court. See 28 U.S.C. § 1406(a). Even if venue is proper in the transferor
court,.transfer may be made under section 1406(a) for any reason which constitutes an impediment
to a decision on the merits. See, !b&, Porterv. Groat, 840 F.2d255, 257-58 (4thCir. 1988); Jenkins
v. Albuquerque Lonestar Freightliner. LLC, 464 F. Supp. 2d 491, 494 (E.D.N.C. 2006).
Having determined that the court lacks personal jurisdiction over defendants, and that venue
· •is not proper in the Eastern District of North Carolina but is proper in the District of Hawaii, the
court must decide whether to transfer this case to the District of Hawaii "in the interests ofjustice."
28 U.S.C. § 1406(a); see Szulik v. TAG Virgin Islands. Inc., 858 F. Supp. 2d 532, 548 (E.D.N.C.
2012); Dacar v. Saybolt LP, No. 7:10-CV-12-F, 2011 WL 223877, at *2 (E.D.N.C. Jan. 24, 2011)
(unpublished); Blue Mako. Inc. v. Minidis, 472 F. Supp. 2d 690, 703 (M.D.N.C. 2007). A district
. court must ~'consider four factors when deciding whether to transfer venue: (1) the weight accorded

to plaintiff's choice of venue; (2) witness convenience and access; (3) convenience of the parties;
and (4) the interest of justice." Trustees of the Plumbers and Pipefitters Nat'l Pension Fund v.
Plumbing Servs.• Inc., 791 F.3d 436, 444 (4th Cir. 2015). 1 In balancing these factors, a district
courts has substantial discretion to decide whether to transfer venue. See Stewart Org.. Inc. v. Ricoh

1

Courts in this district have described the test in terms of eleven more specific factors rather
than four more general factors, but the analysis remains essentially the same. See Szulik, 858 F.
Supp. 2dat 548; Dacar, 2011 WL223877, at *3; Charles v. Bradley, No. 5:08-CV-124-F, 2009 WL
1076771, at *2 (E.D.N.C. Apr. 21, 2009) (unpublished).

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Cotp., 487 U.S. 22, 29 (1988); Brock, 933 F.2d at 1257; Jenkins v. Albuquerque Lonestar
Freightliner. LLC, 464 F. Supp. 2d 491, 493 (E.D.N.C. 2006). The court now considers each factor
in turn, in light ofTay1or' s request that this court transfer venue to the District of Hawaii if this court
finds that venue is improper in the Eastern District ofNorth Carolina.
As for the first factor, plaintiffs choice of forum, Taylor filed this action in the Eastern
District ofNorth Carolina. Thus, this factor does not weigh in favor of transfer.
As for the second factor, the convenience ofthe witnesses and the ease of access to evidence,

plaintiff and his medical providers are located in the Eastern District of North Carolina, while
defendants are located in Hawaii. This court, however, lacks personal jurisdiction over the
defendants. Thus, this second factor weighs in favor of transfer.
As for the third factor, the convenience of the parties, Taylor resides in the Eastern District

of North Carolina but resided in Hawaii until shortly after the accident occurred. All three
defendants reside in the District of Hawaii. Thus, this third factor weighs in favor of transfer.
As for the fourth factor, the interests of justice, this factor implicates many considerations.
· One such consideration is the particular interest a forum may have in deciding a case. The District
of Hawaii has a particular interest in deciding cases involving Hawaii law, which the parties agree

will apply in this case, [D.E. 21] 11, particularly when those cases are brought against a Hawaii
. municipality (Honolulu), a Hawaii corporation offering local public transit services (OTS), and one
of their employees (McMillan).2 Thus, this fourth factor strongly weighs in favor of transfer.
. Having reviewed the record and the interests of justice, the court will transfer this action to the
· District of Hawaii.

2 North

Carolina follows a lex loci delicti approach to choice of law in tort cases, applying
the substantive law ofthe state where the claim arose, here Hawaii. See Boudreau v. Baughmm1, 322
· N.C. 331, 335,368 S.E.2d. 849, 854 (1988).
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II.
In sum, defendants' motions to dismiss and in the alternative transfer [D.E. 7, 18] are

GRANTED, Taylor's motions to transfer venue [D.E. 11, 22] are GRANTED, and the action is
transferred to the United States District Court for the District of Hawaii.
SO ORDERED.

This~dayofAugust2017.

J
S C. DEVER III
Chief United States District Judge

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