JAMES O. BROWNING, District Judge.
The Plaintiffs assert that, on December 5, 2010, at approximately 10:30 a.m., they were traveling westbound on Interstate 40 in Navajo County near Holbrook, Arizona in a motor vehicle. See Complaint for Personal Injuries ¶ 14, at 3 (dated June 24, 2011), filed July 29, 2011 (Doc. 1-1)("Complaint"). At the same time, traveling in the same direction, Hogan was operating a tractor-trailer. See Complaint ¶ 15, at 3. The Plaintiffs allege that Hogan negligently, carelessly, and in violation of the laws or regulations of the State of Arizona moved suddenly into the Plaintiffs' lane of travel, forcing their vehicle off the interstate. See Complaint ¶ 16, at 3-4. They assert that Hogan: (i) was traveling too fast for the conditions; (ii) failed to yield the right of way; (iii) failed to keep a proper lookout for traffic; and (iv) changed lanes without warning. See Complaint ¶ 17, at 4. The Plaintiffs incurred medical expenses, suffered severe injuries, continue to suffer costs, continue to suffer mental and emotional distress, and suffered lost income. See Complaint ¶¶ 19-25, at 4-5. The tractor-trailer was: (i) owned and/or insured by Mayflower Transit; and (ii) owned and/or insured by Clark Moving. See Complaint ¶¶ 28-32, at 5-6. Hanover Insurance insured Hogan. See Complaint ¶ 33, at 6.
The Plaintiffs filed their Complaint in the First Judicial District Court, Santa Fe County, State of New Mexico on June 24, 2011. See Doc. 1-1. Each Plaintiff is a resident of New Mexico. See Complaint ¶¶ 1-3, at 1. They assert that: (i) Hogan is
The Defendants then filed several motions to dismiss.
On August 5, 2011, Hanover Insurance filed the Hanover MTD. See Doc. 7. Hanover Insurance asks that the Court dismiss the claims against it for failure to state a claim, pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure, or, in the alternative, to enter judgment on the pleadings, pursuant to rule 12(c). See Hanover MTD at 1. Hanover Insurance asserts that the Complaint is "premised upon alleged conduct that occurred entirely in the State of Arizona," and that the Plaintiffs fail "to state a claim that the New Mexico Financial Responsibility Act should apply and allow joinder of Defendant Hanover." Hanover MTD at 1. It argues that it was joined in the present lawsuit based on the Mandatory Financial Responsibility Act, N.M.S.A.1978, §§ 66-5-201 to -239 ("MFRA"). Hanover MTD at 3. Hanover Insurance asserts that MFRA is not applicable to the allegations in the Complaint and does not permit its joinder, because MFRA applies only to accidents involving New Mexico residents and "upon the highways of the state." Hanover MTD at 3. It argues that neither requirement is met because: (i) Hogan was a resident of Florida; and (ii) the accident occurred in Arizona. See Hanover MTD at 3-4. Hanover Insurance further asserts that MFRA permits the joinder of an insurance company only where it mandates liability insurance, which is for residents of New Mexico. See Hanover MTD at 4. It likewise argues that joinder under A.R.S. § 28-4033 is improper, because MFRA "does not apply to another state's financial responsibility laws" and because Hanover Insurance is not a resident of Arizona. Hanover MTD at 5. In the alternative, Hanover Insurance argues that judgment on the pleadings is appropriate, because there is no direct cause of action against it, and because the Complaint does not state a plausible claim for relief. See Hanover MTD at 5.
On August 19, 2011, the Plaintiffs filed Plaintiff Larry Whiting's, Leroy Whiting's, & Lorenzo Garcia's Response in Opposition to Defendant Hanover Insurance Group's Motion to Dismiss. See Doc. 9 ("Hanover Response"). The Plaintiffs assert that Hanover Insurance improperly filed its motion to dismiss after filing a responsive pleading and that its motion should be for judgment on the pleadings. See Hanover Response at 3. They argue that rule 12(c) indicates that a motion to dismiss tendered after a responsive pleading is treated as a motion for judgment on the pleadings. See Hanover Response at 3. The Plaintiffs assert that Hanover Insurance's argument regarding MFRA fails, because the Court has not yet determined what law applies to the case. See Hanover
On August 30, 2011, Hanover Insurance filed its Defendant The Hanover Insurance Company's Reply in Support of Its Motion to Dismiss. See Doc. 11 ("Hanover Reply"). Hanover Insurance argues that its motion to dismiss was properly filed, because it has not yet filed a responsive pleading. See Hanover Reply at 3. It asserts that it also never filed a responsive pleading in state court before removal. See Hanover Reply at 3. Hanover Insurance argues that there is no choice of law issue before the Court and that the only relevant question is whether MFRA applies to the Defendants. See Hanover Reply at 5. It notes that the Plaintiffs concede that they have no direct claims against Hanover Insurance. See Hanover Reply at 6.
Mayflower Transit moves to dismiss the Complaint based on improper venue. See Mayflower MTD at 1. It asserts that venue is proper only in: (i) a judicial district where any defendant resides, if all the defendants reside in the same State; (ii) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred; or (iii) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no other district in which the action may be brought. See Mayflower MTD at 2-3 (citing 28 U.S.C. § 1391(a)). Mayflower Transit argues that the "Plaintiffs do not allege that all Defendants reside in the same state or that any of them reside in New Mexico," and that venue is therefore improper under 28 U.S.C. § 1391(a)(1). Mayflower MTD at 3. It contends that all the actions giving rise to the Plaintiffs' claims occurred in Arizona, such that venue is improper under 28 U.S.C. § 1391(a)(2). See Mayflower MTD at 3 (citing Complaint ¶¶ 10, 14-25, at 3-5). Mayflower Transit further asserts that the District of New Mexico is an improper venue, under 28 U.S.C. § 1391(a)(3), because venue could properly be laid in the United States District Court for the District of Arizona under 28 U.S.C. § 1391(a)(2). See Mayflower MTD at 4. It argues that, because venue is improper, the Court should dismiss the Complaint without prejudice to allow refiling in the proper judicial district. See Mayflower MTD at 4. Mayflower Transit also contends that retaining venue in New Mexico would frustrate the interests of judicial economy, because Mayflower Transit believes that the claims against it are closely related to those against the other Defendants and that it is unlikely that the Court has personal jurisdiction over Hogan or Clark Moving. See Mayflower MTD at 4. Mayflower Transit argues that this decision could lead to "the undesirable position of closely related claims being litigated in separate forums." Mayflower MTD at 5. It contends that the Plaintiffs' choice of forum should be given little deference, because they engaged in forum shopping when they brought their claims in New Mexico notwithstanding
On November 1, 2011, the Plaintiffs filed Plaintiff Larry Whiting's, Leroy Whiting's, & Lorenzo Garcia's Response to Defendant Mayflower's Motion to Dismiss for Improper Venue. See Doc. 20 ("Mayflower Response"). The Plaintiffs argue that venue was proper in state district court where the Complaint was originally filed, because the New Mexico venue statute dictates that venue is proper "in the county were either the plaintiff or defendant, or any one of them in case there is more than one of either, resides." Mayflower Response at 2 (citing N.M.S.A.1978, § 38-3-1A). The Plaintiffs concede that the all of the named Defendants are citizens of different states. See Mayflower Response at 2. They assert that, because Hanover Insurance has a registered agent for service of process in Santa Fe, New Mexico, filing their Complaint in the First Judicial District Court was proper. See Mayflower Response at 3. They argue that because the "Plaintiffs complied with the New Mexico State venue statute and because Plaintiffs all reside and are citizens of New Mexico, Defendant Mayflower's argument that Plaintiffs are forum-shopping is spurious, unfounded, and should be disregarded." Mayflower Response at 3. They further assert that venue is proper in the District of New Mexico, because all subsequent medical providers, the Plaintiffs, and the majority of the evidence reside in New Mexico. See Mayflower Response at 3. The Plaintiffs argue that the only connection to the District of Arizona is that the accident occurred there and two of the hospitals in which the Plaintiffs received treatment are in Arizona. See Mayflower Response at 4. Additionally, the Plaintiffs contend that, because "all the relevant evidence and three of the six parties reside here in New Mexico," there is an inference that a "substantial part of the events or omissions giving rise to the claim occurred" in New Mexico. Mayflower Response at 4 (citing 28 U.S.C. § 1391(a)(2)). The Plaintiffs assert that Mayflower Transit is forum shopping, because Arizona would be a venue "convenient to no one and without any nexus to the parties or evidence." Mayflower Response at 4. They contend that Mayflower Transmit "omits the fact that Defendant Hogan passed through New Mexico in his Mayflower tractor-trailer while en-route to the scene of the accident, westbound on Interstate 40 near Holbrook, Arizona." Mayflower Response at 4. The Plaintiffs argue that "no court in the country could simultaneously have personal jurisdiction over all parties and that a remedy was provided in the rules for service of process and the minimum contacts analysis to address just this situation." Mayflower Response at 5.
On November 15, 2011, Mayflower Transit filed its Defendant Mayflower Transit, LLC's Reply in Support of Its Motion to Dismiss. See Doc. 22 ("Mayflower Reply"). Mayflower Transit argues that New Mexico's venue statute is irrelevant to the determination of venue under 28 U.S.C. § 1391(a). See Mayflower Reply at 1. Furthermore, Mayflower Transit notes that the Plaintiffs did not serve it until after the case had been removed to federal court. See Mayflower Reply at 2. Mayflower Transit argues that the Plaintiffs' subsequent medical treatment is a not a "substantial part of the events or omissions giving rise to the claim" for purposes of venue. Mayflower Reply at 2.
Clark Moving moves the Court to dismiss the Plaintiffs' Complaint against it for lack of personal jurisdiction. See Clark MTD at 1. In the alternative, Clark Moving moves to dismiss the Complaint for improper venue. See Clark MTD at 1.
On December 28, 2011, the Plaintiffs filed Plaintiff Larry Whiting's, Leroy Whiting's, & Lorenzo Garcia's Response to Defendant Clark Moving and Storage Inc.'s Motion to Dismiss. See Doc. 28 ("Clark Response"). With respect to venue, the Plaintiffs make substantially the same arguments as in the Mayflower Transit Response. See Clark Moving Response at 2-3. The Plaintiffs assert that Clark Moving "does not deny operating a motor vehicle upon the highways of this state and, as a shipping company, may regularly use the highways of New Mexico to transport the shipped contents in furtherance of its business." Clark Moving Response at 4. They argue that the accident occurred just over the border between New Mexico and Arizona, and that Clark Moving "would not have been involved in an accident with Plaintiffs had it not availed itself of the use of New Mexico highways and the protection of New Mexico's laws." Clark Moving Response at 4. The Plaintiffs contend that, "by subjecting itself to jurisdiction in New Mexico through use of New Mexico highways, Defendant can `reasonably anticipate being haled into court' in New Mexico." Clark Moving Response at 4 (citing World-Wide Volkswagen v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). The Plaintiffs request that, if the Court finds no personal jurisdiction, the Court transfer the case to the District of Arizona. See Clark Moving Response at 5.
On January 11, 2012, Clark Moving filed its Defendant Clark Moving and Storage, Inc.'s Reply in Support of Its Motion to Dismiss. See Doc. 34 ("Clark Moving Reply").
On January 10, 2012, Hogan filed his motion to dismiss. See Doc. 33. Hogan requests that the Court dismiss the Complaint for lack of personal jurisdiction or, in the alternative, for improper venue. See Hogan MTD at 1. Hogan argues that, to establish personal jurisdiction, the Plaintiffs must demonstrate a connection between Hogan's contacts with New Mexico and their cause of action. See Hogan MTD at 1 (citing Zavala v. El Paso Cnty. Hosp. Dist., 143 N.M. 36, 172 P.3d 173 (Ct.App.2007)). He asserts that the "Plaintiffs do not state a single factual allegation that Mr. Hogan had any contacts with New Mexico." Hogan MTD at 5. He further asserts that the Complaint "does not arise out of any contact Mr. Hogan had with New Mexico." Hogan MTD at 5. Hogan also argues that the Complaint does not allege that Hogan's contacts rise to the stringent standard for general personal jurisdiction of systematic and continuous contacts. See Hogan MTD at 6. With respect to the traditional notions of fair play and substantial justice, Hogan makes the same arguments as Clark Moving in the Clark MTD. See Hogan MTD at 7-8. With respect to venue, Hogan makes substantially the same arguments as the other Defendants. See Hogan MTD at 8-12.
On February 1, 2012, the Plaintiffs filed Plaintiff Larry Whiting's, Leroy Whiting's, & Lorenzo Garcia's Response to Defendant Dana A. Hogan's Motion to Dismiss. See Doc. 37 ("Hogan Response"). With respect to venue, the Plaintiffs make substantially the same arguments as they made in the Mayflower Response and Clark Moving Response, and assert that venue was appropriate in New Mexico state court before the case was removed. See Hogan Response at 2-4. With respect to personal jurisdiction, the Plaintiffs argue that "Hogan does not deny operating a motor vehicle upon the highways of this state and, as a long-haul truck driver, may regularly use the highways of New Mexico to transport the shipped contents in furtherance of the business for which he ships." Hogan Response at 4. They reiterate that Hogan would not have been involved in an accident with the Plaintiffs if he had not availed himself of New Mexico's
On February 9, 2012, Hogan filed his Defendant Dana A. Hogan's Reply in Support of His Motion to Dismiss. See Doc. 39 ("Hogan Reply"). Hogan argues that the Plaintiffs did not timely serve and file their Response, and that, pursuant to D.N.M.LR-Civ. 7.1(b), the Plaintiffs consent to the Hogan MTD. See Hogan Reply at 1. Hogan asserts that the Hogan Response should have been filed on January 24, 2012, or at the latest January 27, 2012, under rule 6(d), and that he, therefore, filed his Notice of Completion of briefing on February 1, 2012 (Doc. 36). See Hogan Reply at 2. Hogan repeats the arguments from the Hogan MTD with respect to the lack of personal jurisdiction and improper venue. See Hogan Reply at 3-8. Hogan also contends that the Plaintiffs have made no showing that transfer is permitted under 28 U.S.C. §§ 1404 or 1406. See Hogan Reply at 8. Hogan emphasizes that he "has not and does not concede that [he] is subject to personal jurisdiction in Arizona, nor has this issue been properly brought before this Court." Hogan Reply at 8.
The Court held a hearing on February 14, 2012. Mayflower Transit argued its motion to dismiss first. Mayflower Transit contended that it brought a motion to dismiss pursuant to rule 12(b)(3) — improper venue. See Transcript of Hearing at 3:5-7 (February 14, 2012)(Winters)("Tr.").
The Plaintiffs asserted that, if the Court found that it did not have personal jurisdiction over Hogan and Clark Moving, they would prefer that the Court transfer the case to the District of Arizona. See Tr. at 6:1-9 (Court, Eden). The Plaintiffs asserted that they prefer that the Court transfer the case, rather than dismiss it,
Clark Moving then argued that the Plaintiffs' Complaint is premised on conduct arising out of an accident in Arizona and that Clark Moving has not purposefully directed any activities towards New Mexico. See Tr. at 10:13-11:3 (Winters). Clark Moving asserted that, under the New Mexico long-arm statute and the due-process analysis, New Mexico did not have personal jurisdiction over it, because the Arizona accident did not arise out of contacts with New Mexico and the accident did not occur in New Mexico. See Tr. 11:4-22 (Winters). It contended that, although Hogan may have driven through New Mexico, that act is too attenuated to the accident. See Tr. at 11:22-12:4 (Winters). It represented that its venue arguments would be similar to Mayflower's. See Tr. at 12:5-8 (Winters). The Court then asked Clark Moving whether the Court has the authority to transfer the case if it does not have personal jurisdiction over a defendant. See Tr. at 12:11-14 (Court). Clark Moving responded that it believes that the Court has that authority under 28 U.S.C. §§ 1404 and 1406. See Tr. at 12:15-23 (Winters).
The Plaintiffs admitted that they do not have any other evidence connecting Clark Moving or Hogan to New Mexico. See Tr. at 13:1-10 (Court, Eden). They then conceded that the Court does not have specific or general personal jurisdiction over any party except Mayflower. See Tr. at 13:11-14:2 (Court, Eden). The Plaintiffs agreed that the best solution would be to transfer the case, and argued that the place of the harm dictates that Arizona would have jurisdiction over Hogan and Clark. See Tr. at 14:3-8 (Court, Eden). They contended that Clark Moving admitted that it directed its activities to Arizona and also presumed that Mayflower Transit operates in Arizona. See Tr. at 14:8-17 (Court, Eden). The Plaintiffs agreed that Arizona likely had jurisdiction over three of the Defendants. See Tr. at 14:18-21 (Court, Eden). They also represented that the only reason they raised the New Mexico venue statute in the briefing was to show that they had a colorable claim for venue. See Tr. at 14:23-15:4 (Court, Eden). The Plaintiffs agreed that they were conceding the three motions with respect to Mayflower Transit, Hogan, and Clark Moving. See Tr. at 15:7-17 (Court, Winters, Eden).
The Court then asked whether the Court could transfer the case against Hanover Insurance as well and whether the District of Arizona would have jurisdiction over it. See Tr. at 15:18-23 (Court). Hanover
"Before a federal court can assert personal jurisdiction over a defendant... the court must determine (1) `whether the applicable statute potentially confers jurisdiction' by authorizing service of process on the defendant and (2) `whether the exercise of jurisdiction comports with due process.'" Peay v. BellSouth Med. Assistance Plan, 205 F.3d 1206, 1209 (10th Cir.2000)(quoting Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 942 (11th Cir.1997)). If a court determines that personal jurisdiction is lacking for some or all of the defendants, the court may then dismiss the claims without prejudice on jurisdictional grounds. See Posner v. Essex Ins. Co., 178 F.3d 1209, 1221 (11th Cir.1999). Dismissing the case for lack of personal jurisdiction, therefore, acts as res judicata in courts subject to the same jurisdictional limits, but does not preclude litigation of the merits in a court with jurisdiction. See Posner v. Essex Ins. Co., 178 F.3d at 1221. "The plaintiff bears the burden of establishing personal jurisdiction over the defendant." Behagen v. Amateur Basketball Ass'n, 744 F.2d 731, 733 (10th Cir.1984). See Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir.1995).
New Mexico's long-arm statute provides:
N.M.S.A.1978, § 38-1-16. The New Mexico long-arm statute is coextensive with constitutional limitations that the due-process clause imposes. See Tercero v. Roman Catholic Diocese, 132 N.M. 312, 316, 48 P.3d 50, 54 (2002). Thus, if jurisdiction is consistent with the due-process clause, then New Mexico's long-arm statute authorizes jurisdiction over a nonresident defendant. See Tercero v. Roman Catholic Diocese, 132 N.M. at 316, 48 P.3d at 54.
New Mexico may have jurisdiction over a defendant who "transacts business" in New Mexico within the meaning of N.M.S.A.1978, § 38-1-16A(1). In Monks Own, Ltd. v. Monastery of Christ in Desert, 142 N.M. 549, 168 P.3d 121 (2007), the Supreme Court of New Mexico explained that "[t]ransaction of any business ... is defined as doing a series of similar acts for the purpose of thereby realizing pecuniary benefit, or otherwise accomplishing an object, or doing a single act for such purpose with the intention of thereby initiating a series of such acts." 142 N.M. at 556, 168 P.3d at 128 (internal quotation marks omitted). The court must look to the facts of each case to determine if the transaction of business category is met. See Monks Own, Ltd. v. Monastery of Christ in Desert, 142 N.M. at 556, 168 P.3d at 128. Even if a plaintiff receives correspondence or a call from the defendant, this contact may be insufficient to constitute transacting business and to satisfy due-process requirements as a matter of New Mexico law. See Diamond A Cattle Co. v. Broadbent, 84 N.M. 469, 471, 505 P.2d 64, 66 (1973) (holding that, where defendant mailed three payments into the state, there was barely any transaction of business, if any at all, and there were not the requisite minimum contacts to satisfy due-process requirements); Coyazo-Hernandez v. Davis & Feder, Nos. 04-1207, 04-1208, 2005 WL 2296403, at *14 (D.N.M. Aug. 17, 2005) (Browning, J.); Fox v. Fox, 103 N.M. 155, 156-57, 703 P.2d 932, 933-34 (Ct.App.1985) (holding that the sole activity of supporting minor children within the state did not fall within any provision of the long-arm statute, nor did it constitute minimum contacts sufficient to subject nonresident parent to the jurisdiction of New Mexico courts).
To satisfy the requirements of the New Mexico long-arm statute, the court must use a three-prong test: (i) did the defendant commit an act or omission set forth in N.M.S.A.1978, § 38-1-16; (ii) does the plaintiff's cause of action arise out of the alleged acts or omissions; and (iii) does the defendant have sufficient minimum contacts with New Mexico to satisfy due-process concerns. See Tercero v. Roman Catholic Diocese, 132 N.M. at 316, 48 P.3d at 54. New Mexico decisions have consistently recognized that New Mexico courts may exercise personal jurisdiction over a nonresident defendant only if sufficient minimum contacts exist between the defendant and the forum state, meaning "the degree to which [the] defendant purposefully initiated activity within the State." Sanchez v. Church of Scientology of Orange Cnty., 115 N.M. 660, 664, 857 P.2d 771, 775 (1993) (internal quotation marks omitted). "The purposeful activity requirement assumes that a defendant will not be subject to jurisdiction solely as a result of random, fortuitous, or attenuated contacts." Sanchez v. Church of Scientology of Orange Cnty., 115 N.M. at 664, 857
Depending on the character and extent of a defendant's contacts, a court may exercise specific or general personal jurisdiction. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984).
Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1078 n. 4. Thus, "[s]uch contacts may give rise to personal jurisdiction over a non-resident defendant either generally, for any lawsuit, or specifically, solely for lawsuits arising out of particular forum-related activities." Shrader v. Biddinger, 633 F.3d 1235, 1239 (10th Cir.2011).
Marcus Food Co. v. DiPanfilo, 671 F.3d 1159, 1166 (10th Cir.2011).
TH Agric. & Nutrition, LLC v. Ace Eur. Grp. Ltd., 488 F.3d at 1287-88. Thus, to establish specific personal jurisdiction that satisfies due process, a plaintiff must present evidence of "three salient factors that together indicate `purposeful direction': (a) an intentional action ... that was (b) expressly aimed at the forum state ... with (c) knowledge that the brunt of the injury would be felt in the forum state." Shrader
Similarly, to find general jurisdiction over a defendant, contacts must be "continuous and systematic" — therefore, "[s]imply because a defendant has a contractual relationship and business dealings with a person or entity in the forum state does not subject him to general jurisdiction there;" "correspondence with a forum resident does not support general jurisdiction;" and "sporadic or isolated visits to the forum state will not subject the defendant to general jurisdiction," because a "[defendant's] lack of a regular place of business in [the forum state] is significant, and is not overcome by a few visits." Shrader v. Biddinger, 633 F.3d at 1247. "[G]eneral jurisdiction over a web site that has no intrinsic connection with a forum state requires commercial activity carried on with forum residents in such a sustained manner that it is tantamount to actual physical presence within the state." 633 F.3d at 1246. When analyzing minimum contacts sufficient for general jurisdiction in regard to the operation of a web site, the Tenth Circuit has referred to, without adopting, a "sliding scale" framework. 633 F.3d at 1242 n. 5.
633 F.3d at 1242 n. 5 (internal quotation marks omitted).
Marcus Food Co. v. DiPanfilo, 2011 WL 5084997, *4-*5.
Venue is defined as the appropriate district court in which to file an action. See NLRB v. Line, 50 F.3d 311, 314 (5th Cir.1995). The purpose of venue is to assure that lawsuits are filed in appropriately convenient courts for the matters raised and for the parties involved in the action. See Leroy v. Great W. United Corp., 443 U.S. 173, 185, 99 S.Ct. 2710, 61 L.Ed.2d 464 (1979). Venue should not be confused with subject-matter jurisdiction, see Wachovia Bank v. Schmidt, 546 U.S. 303, 315-16, 126 S.Ct. 941, 163 L.Ed.2d 797 (2006), or with personal jurisdiction, see Leroy v. Great W. United Corp., 443 U.S. 173, 185, 99 S.Ct. 2710, 61 L.Ed.2d 464 (1979) ("The question of personal jurisdiction, which goes to the court's power to exercise control over the parties, is typically decided in advance of venue, which is primarily a matter of choosing a convenient forum."); 14D C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3801, at 2-3 (2007). Any rights conferred by the federal venue statutes are waivable, and they implicate no constitutional rights. See Leroy v. Great W. United Corp., 443 U.S. 173, 183-87, 99 S.Ct. 2710, 61 L.Ed.2d 464 (1979). "To the extent that they are relevant, the laws relating to venue give added protection to defendants beyond those that are provided by the statutory and constitutional prerequisites of personal jurisdiction." 14D C. Wright, A. Miller & E. Cooper, supra § 3801, at 15.
28 U.S.C. § 1391(a). Section 1391(a)(3) is a "fall-back provision" used where "venue will be unavailable under § 1391(a)(1)." Algodonera De Las Cabezas, S.A. v. Am. Suisse Capital, Inc., 432 F.3d 1343, 1345 (11th Cir.2005) (citations omitted). The Tenth Circuit has noted:
Monument Builders v. Am. Cemetery Ass'n, 891 F.2d 1473, 1479 (10th Cir.1989) (quoting Brunette Mac. Works, Ltd. v. Kockum Indus., Inc., 406 U.S. 706, 710 n. 8, 92 S.Ct. 1936, 32 L.Ed.2d 428 (1972)). The current venue statutes were enacted to prevent this situation, especially in multi-party situations. See Monument Builders v. Am. Cemetery Ass'n, 891 F.2d at 1479.
The proper venue for a matter under 28 U.S.C. § 1391(a)(2) can be in any district "in which a substantial part of the events or omissions giving rise to the claim occurred." 28 U.S.C. § 1391(a)(2). See Monument Builders v. Am. Cemetery Ass'n, 891 F.2d at 1478-79 (holding that venue was proper in two different districts, because the locus of the events or omissions giving rise to the claim of illegal conduct adversely impacting consumer welfare was within the relevant market that happened to be divided by the Kansas/Missouri state line); Anaeme v. Florida, 169 Fed.Appx. 524, 528 (10th Cir.2006) (unpublished)(holding that venue was not appropriate in the District of New Mexico, where the alleged events giving rise to the claims occurred in Florida). The substantiality requirement of 28 U.S.C. 1391(a)(2) "is intended to preserve the element of fairness so that a defendant is not haled into a remote district having no real relationship to the dispute." Fodor v. Hartman, No. 05-CV-02539, 2006 WL 1488894 at *4 (D.Colo. May 30, 2006) (Figa, J.)(holding that plaintiff's averments that the defendant may have made telephone calls to him in Colorado, or sent him mailings or email relating to unspecified business matters were not substantial, because the court was unable to determine if "these are acts or omissions that give rise to plaintiff's claims, or are merely tangential contacts"). See Tillotson v. City of El Paso, No. 09-0963, 2010 WL 597993, at *3 (D.N.M. Jan. 29, 2010) (Browning, J.)("Because the vast majority of events giving rise to the arrest occurred in El Paso, because Tillotson resides in El Paso, and because, based on counsel's representations, all of the public officers reside in El Paso, the Court agrees that venue is improper");
In 1948, Congress enacted the federal change-of-venue statute, codified at 28 U.S.C. § 1404, to allow a district court to transfer an action filed in a proper, though not necessarily convenient, venue to a more convenient district. That statute provides, in pertinent part: "For the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). Section 1404(a) affords a district court broad discretion to adjudicate motions to transfer based on a case-by-case review of convenience and fairness. See Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1516 (10th Cir.1991). "Recognizing that what is convenient for one litigant may not be convenient for the other, the Supreme Court has taught that section 1404(a) `is intended to place discretion in the district court to adjudicate motions for transfer according to [a] ... case-by-case consideration of convenience and fairness.'" Research Automation, Inc. v. Schrader-Bridgeport Int'l, Inc., 626 F.3d 973, 977 (7th Cir.2010) (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988)). "The statutory language guides the court's evaluation of the particular circumstances of each case and is broad enough to allow the court to take into account all factors relevant to convenience and/or the interests of justice." Research Automation, Inc. v. Schrader-Bridgeport Int'l, Inc., 626 F.3d at 977. The statute permits a "flexible and individualized analysis," and affords district courts the opportunity to look beyond a narrow or rigid set of considerations in their determinations. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. at 29, 108 S.Ct. 2239.
Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d at 1516 (internal quotation marks omitted). See Tex. Gulf Sulphur v. Ritter, 371 F.2d 145, 147 (10th Cir.1967) (stating the factors that courts consider in making a venue determination under § 1404(a)).
28 U.S.C. § 1406 permits transfer to cure a venue defect. It 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." 28 U.S.C. § 1406. Although both § 1404(a) and § 1406(a) "were broadly designed to allow transfer instead of dismissal, § 1406(a) provides for transfer from forums in which venue is
28 U.S.C. § 1631. The Tenth Circuit has held that 28 U.S.C. § 1631 was "specifically designed for cases transferred from one federal court to another for lack of jurisdiction," and that it "served to simplify the process and streamline its application." Ross v. Colo. Outward Bound Sch., Inc., 822 F.2d 1524, 1527 (10th Cir.1987). It has held that, although many courts have interpreted § 1406(a) to permit transfer where personal jurisdiction is lacking, the enactment of § 1631 makes such a "strained" construction "no longer necessary." Viernow v. Euripides Devel. Corp., 157 F.3d 785, 793 (10th Cir.1998).
The "interest of justice" is a separate element of the transfer analysis that relates to the court system's efficient administration. Van Dusen v. Barrack, 376 U.S. at 626-27, 84 S.Ct. 805. "For this element, courts look to factors including docket congestion and likely speed to trial in the transferor and potential transferee forums; each court's relative familiarity with the relevant law; the respective desirability of resolving controversies in each locale; and the relationship of each community to the controversy." Research Automation, Inc. v. Schrader-Bridgeport Int'l, Inc., 626 F.3d at 977 (citations omitted). In some circumstances, "[t]he interest of justice may be determinative, warranting transfer or its denial even where the convenience of the parties and witnesses points toward the opposite result." Research Automation, Inc. v. Schrader-Bridgeport Int'l, Inc., 626 F.3d at 977 (citing Coffey v. Van Dorn Iron Works, 796 F.2d 217, 220-21 (7th Cir.1986)). The Tenth Circuit has interpreted the phrase — "if it is in the interest of justice" — to grant a district court discretion in making the decision to transfer the action. See Driggers v. Clark, 422 Fed.Appx. 747, 749-50 (10th Cir.2011) (unpublished) (citing Trujillo v. Williams, 465 F.3d 1210, 1222 (10th Cir.2006)).
The Court finds that the District of New Mexico is an improper venue, and that the Court lacks personal jurisdiction over Clark Moving and Hogan. The Court also determines that the Plaintiffs failed to state a claim upon which relief can be granted against Hanover Insurance. The Court will dismiss Hanover Insurance from the case, and transfer the remaining action and claims to the District of Arizona.
The Court lacks personal jurisdiction over Clark Moving and Hogan. The Plaintiffs admitted that it did not have any evidence connecting Clark Moving or Hogan to New Mexico, see Tr. at 13:1-10 (Court, Eden), other than that they might have traveled through New Mexico to get to Arizona, see Clark Moving Response at 4. They then conceded that the Court does not have specific or general personal jurisdiction over either party. See Tr. at 13:11-14:2 (Court, Eden). Because no actions
The District of New Mexico is an improper venue for this case. The Plaintiffs conceded that this District was not a proper venue at the hearing. See Tr. at 15:7-17 (Court, Winters, Eden). Venue in a judicial district may be proper if one of three requirements is met: (i) it is a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (ii) it is a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred; or (iii) if there is no other district in which the action may be brought, any judicial district in which any defendant is subject to personal jurisdiction. See 28 U.S.C. § 1391(b). The Defendants here are residents of different states. The Plaintiffs allege that Mayflower is a resident of Missouri, Clark Moving is a resident of New York, and Hogan is a resident of Florida. See Complaint ¶¶ 4-6, at 1-2. Hanover Insurance is a resident of Delaware and Massachusetts.
Now that the Court has decided that it does not have personal jurisdiction over Clark Moving and Hogan, and that New Mexico is not a proper venue, the issue is whether it should dismiss the case against the Defendants or transfer the case. In reaching that decision, the Court must determine whether the case against Hanover Insurance, which is partially brought under New Mexico states a claim upon which relief can be granted. Because this Court concludes that there is no cause of action under New Mexico or Arizona law, the Court determines that it should dismiss Hanover Insurance, which helps make the transfer decision clearer.
Hanover Insurance argues that the Court should dismiss the case against it, because neither MFRA nor A.R.S. § 28-4033 permit its joinder, and because there are no direct claims against it. See Hanover MTD at 3-5; Hanover Reply at 6. The Plaintiffs assert that Hanover Insurance's remedy "for being named in a lawsuit is not dismissal, despite having argued that it is not a proper party," and that the proper remedy under New Mexico law is "to bifurcate the insurer and stay discovery against it unless and until such time as any claims may arise that directly implicate [it]." See Hanover Response at 5.
The Complaint asserts that "[b]y force of legislative enactment, the Financial Responsibility Act of New Mexico and/or Arizona (A.R.S. § 28-4033) inures to the benefit of the public and no language within said Act precludes joinder of Defendant Hanover Insurance Co. to this suit."
The Court next looks at A.R.S. § 28-4033 which provides that "a person subject to the requirements of this article shall maintain motor vehicle combined single limit liability" for specific categories of motor vehicles. A.R.S. § 28-4033. A.R.S. § 28-4032 defines a person subject to the financial responsibility requirements as: (i) a person who operates a motor vehicle weighing more than 20,000 pounds in furtherance of "a commercial enterprise in this state"; (ii) a person who operates a motor vehicle or vehicle combination for the purposes of transporting hazardous materials, substances or wastes; (iii) a person who operates a bus used to transport passengers for hire; and (iv) a person who owns a taxi, livery vehicle, or limousine used to transport passengers for hire. A.R.S. § 28-4032 (emphasis added). Because
None of the Counts in the Complaint name Hanover Insurance or assert that it caused any of the Plaintiffs' injuries. See Complaint at 6-13. The Complaint only alleges that: (i) Hanover Insurance is a foreign corporation doing business in Arizona and New Mexico, and with a registered agent for service of process in Santa Fe, New Mexico; (ii) Hogan, Clark Moving, and/or Mayflower Transit procured an insurance policy from Hanover Insurance; and (iii) the MFRA and/or A.R.S. § 28-4033 permit the Plaintiffs to join Hanover Insurance as a defendant. See Complaint ¶¶ 8-9, at 2-3. Where a plaintiff has asserted no causes of action against a named defendant, that party may be terminated as a defendant. See R.B. ex rel. Parent v. Mastery Charter Sch., 762 F.Supp.2d 745, 754 (E.D.Pa.2010) ("Because the complaint makes no claims against the School District, its Motion to Dismiss for failure to state a claim is hereby granted."); Flaherty v. Massapequa Pub. Schs., 752 F.Supp.2d 286, 299 (E.D.N.Y.2010) ("Similarly, as the plaintiff has asserted no causes of action against named defendant Marianne Fisher, she is also terminated as a defendant."); Jones v. Countrywide Home Loans, Inc., No. 09-4313, 2010 WL 551418, at *10 (N.D.Ill. Feb. 11, 2010) ("Defendants `Does 1-10' are alleged to be individuals who otherwise `engaged in or aided and abetted' the wrongdoing alleged in the First Amended Complaint.... Jones has stated no claims against individual defendants in the First Amended Complaint. Defendants Does 1-10 are therefore dismissed."); Shook v. Shook, No. 5:06cv76, 2007 WL 2491327, at *16 (W.D.N.C. Aug. 29, 2007) ("While plaintiff named Western Surety in her Amended Complaint, she has asserted no claims against such defendant.... [T]he court will dismiss Western Surety with prejudice from this action inasmuch as plaintiff has failed to state any cognizable claims against it."). Here, the Plaintiffs have alleged no causes of action against Hanover Insurance under New Mexico or Arizona law, see Tr. at 17:18-19 (Eden), and cannot proceed against it under MFRA or Arizona's Motor Carrier Insurance Act. Accordingly, the Court will dismiss Hanover Insurance from this action. The order will remain interlocutory, so the Plaintiffs will be able to move to rejoin Hanover Insurance in Arizona if the Court's understanding of Arizona law is incorrect and it can be joined as a party to a direct action.
The Plaintiffs request that the Court transfer the remaining case against Mayflower Transit, Clark Moving, and Hogan to the District of Arizona. See Tr. at 18:5-7 (Eden). 28 U.S.C. § 1406 permits transfer to cure a venue defect, while 28 U.S.C. § 1631 permits transfer to cure a jurisdictional defect. The test under both statutes, however, is whether transfer is in the "interest of justice." 28 U.S.C. § 1406(a); 28 U.S.C. § 1631. "The `interest of justice' is an amorphous standard, left largely undefined by the courts." 17 J. Moore, Moore's Federal Practice, § 111.34, at 111-165 (3d ed.2011). Ordinarily, "transfer will be in the interest of justice because normally dismissal of an action that could be brought elsewhere is `time consuming and justice defeating.'" 17 J. Moore, Moore's Federal Practice, § 111.34, at 111-165 (quoting Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962)). Arizona appears to be the only state that has personal jurisdiction over all of the remaining Defendants, because the accident which gave rise to the Plaintiffs' alleged injuries occurred there. See Complaint ¶ 10, at 3. Furthermore, because the accident occurred in Arizona, Arizona likely has an interest in the resolution of this dispute. Mayflower Transit, Clark Moving, and Hogan asked that the Court dismiss the action, rather than transfer the case; however, the only argument they raised in opposition to transfer was that they did not want to waive any objections they may have to Arizona's jurisdiction. See Tr. at 19:9-14 (Winters). On the other hand, Mayflower Transit, Clark Moving, and Hogan admitted that it is unlikely that there are any jurisdictional issues that would prevent the case from moving forward in the District of Arizona. See Tr. at 19:4-9 (Winters). The Court is a New Mexico Court, and may not be as familiar as the Arizona district court, about personal jurisdiction in Arizona; the Court may have missed something. The Court sees no reason why a court's order to transfer, over a defendant's objections and on a plaintiff's motion, would waive any of the defendant's possible jurisdictional challenges. See Convergence Tech. (USA), LLC v. Microloops Corp., 711 F.Supp.2d 626, 633 (E.D.Va.2010) ("[T]he filing of a motion to transfer does not operate as a waiver of a personal jurisdiction objection.").
The Court will grant the request to transfer, because doing so is in the interest of justice. It is in the interest of justice to transfer the suit, because: (i) Arizona appears to be the only forum in which the Plaintiffs can properly sue all of the remaining Defendants; (ii) it is "justice defeating" to dismiss an action that could be brought elsewhere, Goldlawr, Inc. v. Heiman, 369 U.S. at 466, 82 S.Ct. 913, and the Plaintiffs have stated that they will re-file in Arizona, see Tr. at 18:9-10 (Eden); and (iii) the Defendants have raised no current objections to Arizona's jurisdiction or asserted any other objection to transferring the case. Furthermore, as Professor Moore notes: "Transfer rather than dismissal ordinarily will be in the interest of justice, unless (1) the action or appeal is frivolous, (2) the action was untimely filed in the original court, or was prematurely filed, or (3) the party moving for transfer delayed too long before making the motion." 17 J. Moore, Moore's Federal Practice, § 111.34, at 111-193. The Defendants do not argue, and the Court does not find on the record before it, that any of these situations are present here. Additionally, transfer is permitted to cure both a venue defect, see 28 U.S.C. § 1406, and a jurisdictional defect, see 28 U.S.C. § 1631. Accordingly, the Court will transfer the action to the District of Arizona.
