Lane v. Buckley et al

Filing 37

ORDER granting in part Motion to Transfer, or in the Alternative, Motion to Dismiss (Doc. 7 ). The Motion to Transfer is granted; the alternative Motion to Dismiss is denied. FURTHER ORDERED granting in part Lane Defendants' Motion to Transfer, or in the Alternative, Motion to Dismiss (Doc. 9 ). The Motion to Transfer is granted; the alternative Motion to Dismiss is denied. IT IS ORDERED transferring this case to the U.S. District Court for the District of Wyoming. Because this Court find s that it has no jurisdiction over the Defendants, the Court takes no action on the following motions pending in the case: Plaintiff's Emergency Motion to Approve Preliminary Injunction to Preserve Plaintiff's Pension and IRA Monies (Doc. [ 27]); Defendants' Motion to Extend Deadline to Respond to Plaintiff's Motion for Preliminary Injunction (Doc. 30 ); Lane Defendants' Notice of Joinder in Motion to Extend Deadline to Respond to Plaintiff's Motion for Preliminary Injunction (Doc. 33 ); and Plaintiff's Motion for Default Judgment against Defendants Colleen Lane and Patricia Lane to Approve Preliminary Injunction to Preserve Plaintiff's Pension and IRA Monies (Doc. 32 ). Signed by Magistrate Judge Eileen S Willett on 9/3/2015. (KMG) [Transferred from Arizona on 9/4/2015.]

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Robert M. Lane,

No. CV-15-01119-PHX-ESW
Plaintiff,

10
11

v.

12

ORDER

Lucas E. Buckley, et al.,

13

Defendants.

14
15

Pending before the Court are the fully briefed Motion to Transfer, or in the

16

Alternative, Motion to Dismiss (Doc. 7) and Lane Defendants’ Motion to Transfer, or in

17

the Alternative, Motion to Dismiss (Doc. 9).

18

jurisdiction over all Defendants, the Motions to Transfer (Doc. 7 and Doc. 9) will be

19

granted pursuant to 28 U.S.C. § 1631. The Court will transfer the case to the United

20

States District Court for the District of Wyoming.

21

Because this Court lacks personal

Procedural History and Factual Background

22

Plaintiff is a citizen of Nevada (Doc. 1-1 at 5). Plaintiff filed a pro se First

23

Amended Complaint in Maricopa County Superior Court on May 11, 2015, alleging

24

Breach of Fiduciary Duty, Fraud and Misrepresentation, Legal Malpractice, Conspiracy

25

to Commit a Fraudulent Scheme, Rescission and Restitution, Fraudulent Transfers, and

26

Breach of Contract Enforced by Third Party Beneficiary. (Doc. 1-1 at 2-27).

27

Defendant is a citizen of Arizona. (Doc. 1-1 at 5-7). By timely Notice of Removal filed

28

June 17, 2015 pursuant to 28 U.S.C. § 1446(b), the case was removed to U.S. District

No

1

Court for the District of Arizona. (Doc. 1). All Defendants have been served. (Doc 1

2

and Doc. 6). All Defendants except Defendant DFWU, LLC have filed a responsive

3

pleading.1

4

The District Court has original subject matter jurisdiction as Plaintiff seeks

5

damages in excess of $75,000, and there is diversity of citizenship. See 28 U.S.C.A. §

6

1332(a)(1).

7

Wyoming because Arizona lacks personal jurisdiction over all appearing Defendants.

However, moving Defendants request that the case be transferred to

8

The case itself arises from a February 25, 2013 settlement reached as part of

9

Plaintiff’s Chapter 7 bankruptcy proceeding held in the United States Bankruptcy Court

10

for the District of Wyoming. The bankruptcy trustee identified two trusts and a limited

11

liability corporation wholly owned by one of the trusts as property of Plaintiff’s

12

bankruptcy estate.

13

pursuant to a settlement agreement reached, which Plaintiff references as the Turn Over

14

Agreement. Plaintiff has filed his First Amended Complaint alleging that the trust assets

15

should not have been turned over to the bankruptcy trustee.

16

Assets of the trusts were turned over to the bankruptcy trustee

Of significance to a determination of the pending motions is the fact that none of

17

the parties are citizens of Arizona.

18

transactions giving rise to the First Amended Complaint occurred in Arizona. Nor were

19

the Chapter 7 bankruptcy proceedings held in Arizona. In fact, none of the acts or

20

omissions set forth in the First Amended Complaint allegedly giving rise to the Plaintiff’s

21

claims occurred in Arizona. The only reason Plaintiff has filed in Arizona appears to be

22

because the two trusts which are not named parties to the action were allegedly domiciled

23

in Arizona.

24
25

In addition, none of the alleged settlement

Discussion
Pursuant to 28 U.S.C. § 1631, the District Court can transfer a civil case initiated

26
1

27
28

Defendant DFWU, LLC is alleged to be a sham defendant or fraudulently joined.
See Notice of Removal (Doc. 1 at 3). Plaintiff filed an Acceptance and Waiver of Service
as manager for Defendant DFWU, LLC (Doc. 1-2 at 7-8), and Plaintiff states in the First
Amended Complaint that Plaintiff is not asserting a claim against Defendant DFWU,
LLC. (Doc. 1-1 at 6-7). DWFU, LLC is a Delaware Limited Liability Corporation. Id.
-2-

1

in one district to another if three conditions are met: (1) the transferring court lacks

2

jurisdiction; (2) the receiving court could have exercised jurisdiction at the time the

3

action was filed; and (3) the transfer is in the interests of justice. See Kolek v. Engen, 869

4

F.2d 1281, 1284 (9th Cir. 1989).

5

The burden of proof for establishing jurisdiction lies with the Plaintiff. Cubbage

6

v. Merchent, 744 F.2d 665, 667 (9th Cir. 1984), cert denied, 470 U.S. 1005 (1985). The

7

Court finds, assuming as true all the material factual allegations set forth in Plaintiff’s

8

First Amended Complaint and foundationally sound facts set forth by affidavit, that

9

Plaintiff has failed to meet his burden of proof regarding personal jurisdiction over the

10

Defendants in Arizona.

11

The Court may exercise jurisdiction over a defendant in Arizona if the defendant

12

is personally present in Arizona or if the defendant has “minimum contacts” with Arizona

13

such that asserting jurisdiction satisfies due process and “does not offend traditional

14

notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310,

15

316-318 (1945). The Court finds as to each appearing Defendant that Plaintiff has failed

16

to prove minimum contacts with Arizona. Nor are any of the Defendants physically

17

present in Arizona. The actions, omissions, and transactions giving rise to the lawsuit

18

allegedly occurred in Wyoming. Plaintiff’s claims arise from the Turn Over Agreement,

19

which was entered into in Wyoming as part of a U.S. Bankruptcy Court proceeding and

20

was approved by the Wyoming Bankruptcy Court. The Defendants never purposefully

21

availed themselves of the privilege of conducting activity in Arizona such that they

22

should “reasonably anticipate” being brought into court here.

23

Rudzewicz, 471 U.S. 462, 474 (1985) (citing World-Wide Volkswagen Corp. v. Woodson,

24

444 U.S. 286, 295 (1980)). Plaintiff’s causes of action do not arise out of any of the

25

Defendants’ alleged Arizona related activities such that Defendants are subject to specific

26

jurisdiction. See Doe v. Unocal Corp, 248 F.3d 915, 923 (9th Cir. 2001). An exercise of

27

specific jurisdiction by Arizona would not be reasonable. Id. Nor are any of the

28

Defendants’ activities in Arizona so “substantial, continuous and systemic” that the Court

-3-

See Burger King v.

1

could conclude the Defendants are subject to general jurisdiction on matters unrelated to

2

Defendants’ contacts with Arizona. See Doe v. Unocal, 248 F.3d at 923 (citing Perkins v.

3

Benquet Consolidated Mining Co., 341 U.S. 437-446 (1952)).

4

The Court further finds that the Wyoming District Court could have exercised

5

jurisdiction at the time the case was filed.

6

Dyekman, Reed & Healey, P.C.; Gregory C. Dyekman; Hathaway and Kunz, P.C.; and

7

Scott Meier, CPA, are all citizens of Wyoming. None of the Defendants share citizenship

8

with the Plaintiff.

9

citizens of Connecticut, Illinois, and South Carolina, respectively. Therefore, Wyoming

10

has subject matter jurisdiction based on diversity of citizenship. 28 U.S.C.A. § 1332. In

11

addition, a substantial part of the acts or omissions giving rise to Plaintiff’s claims

12

occurred in Wyoming. Id.

Defendants Lucas E. Buckley; Dray,

Defendants Colleen Lane, Matthew Lane, and Patricia Lane are

13

Finally, the Court concludes that transfer, rather than dismissal, is in the interests

14

of justice. The Court notes that the Plaintiff appears pro se. To dismiss the case and

15

require Plaintiff to re-file could prejudice Plaintiff. Dismissal is also time-consuming,

16

expensive, and causes unnecessary delay. Though Plaintiff prefers to proceed in Arizona

17

for the reasons set forth in his briefing, the Court finds that the interests of justice require

18

the case to proceed in Wyoming. See Goldlawr, Inc. v. Heiman, 369 U.S. 463, 467

19

(1962); Cruz-Aguilera v. I.N.S., 245 F.3d 1070, 1074 (9th Cir. 2001).

20

Conclusion

21

IT IS ORDERED granting in part Motion to Transfer, or in the Alternative,

22

Motion to Dismiss (Doc. 7). The Motion to Transfer is granted; the alternative Motion to

23

Dismiss is denied.

24

IT IS FURTHER ORDERED granting in part Lane Defendants’ Motion to

25

Transfer, or in the Alternative, Motion to Dismiss (Doc. 9). The Motion to Transfer is

26

granted; the alternative Motion to Dismiss is denied.

27
28

IT IS ORDERED transferring this case to the U.S. District Court for the District
of Wyoming.

-4-

1

Because this Court finds that it has no jurisdiction over the Defendants, the Court

2

takes no action on the following motions pending in the case: Plaintiff’s Emergency

3

Motion to Approve Preliminary Injunction to Preserve Plaintiff’s Pension and IRA

4

Monies (Doc. 27); Defendants’ Motion to Extend Deadline to Respond to Plaintiff’s

5

Motion for Preliminary Injunction (Doc. 30); Lane Defendants’ Notice of Joinder in

6

Motion to Extend Deadline to Respond to Plaintiff’s Motion for Preliminary Injunction

7

(Doc. 33); and Plaintiff’s Motion for Default Judgment against Defendants Colleen Lane

8

and Patricia Lane to Approve Preliminary Injunction to Preserve Plaintiff’s Pension and

9

IRA Monies (Doc. 32).

10

Dated this 3rd day of September, 2015.

11
12
13

Honorable Eileen S. Willett
United States Magistrate Judge

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-5-