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Giordano v. Johnson

United States District Court, Ninth Circuit

October 4, 2013

Gerald Giordano and Lisa Giordano, husband and wife, Plaintiffs,
v.
Chuck Johnson and Jane Doe Johnson, husband and wife; XYZ Entity I, Defendants.

REPORT AND RECOMMENDATION

Leslie A. Bowman United States Magistrate Judge

Pending before the court is a motion to transfer the case to the District of New Mexico pursuant to FED.R.CIV.P.12(b)(2) and 28 U.S.C. § 1631 filed by the defendant, Chuck Johnson, on May 10, 2013. (Doc. 3) In the alternative, Johnson moves for a change of venue pursuant to 18 U.S.C. 1404(a).

The plaintiffs in this action, the Giordanos, claim Johnson’s negligence caused the insurance policy on their vacation cabin to lapse shortly before it was destroyed in a wildfire. In the pending motion, Johnson moves that the action be transferred for lack of personal jurisdiction.

The case has been referred to Magistrate Judge Bowman for all pretrial matters pursuant to Local Civil Rule 72.2. Rules of Practice of the U.S. District Court for the District of Arizona. The court finds this motion suitable for decision without oral argument.

The motion should be granted. The court lacks personal jurisdiction over the defendant, Johnson.

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiffs, Gerald and Lisa Giordano, are residents of Arizona. (Doc. 9, p. 1) The defendant, Chuck Johnson, is a New Mexico insurance agent. Id. The Giordanos contacted Johnson because they wanted help in finding insurance for their New Mexico vacation cabin. (Doc. 10, p. 4) Because the cabin was located in a fire-prone area, finding an insurance company willing to provide coverage was difficult. Johnson, however, was successful in finding a series of policies for the cabin beginning in 2008 when it was purchased by the Giordanos. From December 18, 2010 to December 18, 2011, the cabin was insured by the New Mexico Property Insurance Program (PIP). (Doc. 9, p. 2) Johnson assisted the Giordanos by finding the insurance, sending them the application, and forwarding the completed application to the PIP. (Doc. 10, p. 4)

At the end of the policy period, the PIP sent the Giordanos a bill and renewal notice for the following year. (Doc. 9, p. 2) This bill, however, was sent to an obsolete address, and the Giordanos did not receive it. (Doc. 9, p. 2) The policy lapsed, and the cabin was destroyed in a wildfire five months later. (Doc. 9, p. 3) In their complaint, the Giordanos claim Johnson knew the bill was sent to an incorrect address and negligently failed to contact them regarding the policy renewal. (Doc. 9)

In the pending motion, Johnson, moves that the action be transferred to the District of New Mexico pursuant to Fed.R.Civ.P. 12(b)(2) and 28 U.S.C. § 1631. In the alternative, he moves that this court transfer venue pursuant to 18 U.S.C. § 1404(a).

Discussion

The court may dismiss an action pursuant to Rule 12(b)(2) if the court lacks personal jurisdiction over the defendant. Fed.R.Civ.P. As an alternative to dismissal, the court may transfer an action pursuant to 28 U.S.C. § 1631 if it lacks jurisdiction. “The burden of proof is on the plaintiff to show that jurisdiction is appropriate, but in the absence of an evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdictional facts.” Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990).

“The general rule is that personal jurisdiction over a defendant is proper if it is permitted by a long-arm statute and if the exercise of that jurisdiction does not violate federal due process.” Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 -1155 (9th Cir. 2006). Because the Arizona long-arm statute extends jurisdiction to the maximum extent permitted by due process, only the due process analysis is necessary. Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 416 (9th Cir. 1997).

“Due process requirements are satisfied when in personam jurisdiction is asserted over a nonresident [] defendant that has certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Helicopteros Nacionales de Colombia, S.A., v. Hall, 466 U.S. 408, 413-14 (1984) (internal punctuation removed). The defendant’s conduct and connection with the forum state must be such that he should reasonably anticipate being haled into court there. World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).

The court may exercise either general or specific jurisdiction over a defendant. Lake v. Lake, 817 F.2d 1416, 1420 (9th Cir. 1987). If the defendant maintains “substantial” or “continuous and systematic” ties to the forum, the court may assert general jurisdiction over the defendant. Id. Where the defendant’s ties to the forum are not continuous and systematic, jurisdiction nevertheless may be proper if the defendant’s ...


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