Good v. Fuji Fire & Marine Ins. , 271 F. App'x 756 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 27, 2008
Elisabeth A. Shumaker
TENTH CIRCUIT
Clerk of Court
ANDREA GOOD,
Plaintiff-Appellant,
v.
No. 07-2068
FUJI FIRE & MARINE INS. CO., No. 07-2175
LTD.; NORIO SUGAWARA; District of New Mexico
TAKAYA HANATA; THE (D.C. No. CIV-06-962-BB/ACT)
JAPANESE MINISTRY OF
JUSTICE; THE JAPANESE
MINISTRY OF FINANCE; THE
JAPANESE MINISTRY OF
TRANSPORTATION; THE
JAPANESE ASSOCIATION FOR
ASSESSING INSURED
AUTOMOBILE INJURIES
(SONGAIHOKEN RYOURITSU
SANCHUTSU KIKOU SAPPORO
BRANCH),
Defendants - Appellees.
ORDER AND JUDGMENT *
Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Andrea Good, a plaintiff proceeding pro se, appeals two district court
orders dismissing her complaint for lack of jurisdiction over the defendants and
denying her motions to transfer and reopen the complaint. Exercising jurisdiction
pursuant to 28 U.S.C. § 1291, we conclude that the court lacked jurisdiction and
did not abuse its discretion when it declined to transfer the case. We therefore
affirm the district court’s orders.
I. BACKGROUND
Ms. Good is a United States citizen who resides in both New Mexico and
Japan. She asserts that she was injured in an automobile accident near Sapporo,
Japan on January 10, 2004. Ms. Good alleges that she was subsequently
defrauded and threatened by various parties in Japan. On October 6, 2006, Ms.
Good filed suit in the District of New Mexico against seven Japanese defendants
asserting claims arising out of the automobile accident. Defendants included two
Japanese corporations, two Japanese individuals, and three ministries of the
Japanese government.
Before any of the defendants was properly served, the two corporations,
Fuji Fire and Marine Insurance Company (“Japanese Fuji”) and Songaihoken
Ryouritsu Sanshutsu Kikou Sapporo Branch (the “Branch”), made a special
appearance before the district court and moved to dismiss for lack of personal
jurisdiction. On February 22, 2007, the district court granted the motion to
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dismiss. Because none of the other five defendants had yet been served, the order
became final with respect to the two corporations. See Raiser v. Utah County,
409 F.3d 1243, 1245 n.2 (10th Cir. 2005). Ms. Good timely appealed this order in
No. 07-2068.
Subsequently, Ms. Good properly served all defendants pursuant to the
Hague Convention. On April 30, 2007, she filed motions to reopen the district
court proceedings, to set aside the dismissal as to the two corporations, and to
transfer venue to the District of Columbia. 1 Ms. Good later moved to transfer
venue instead to Illinois or California. The five remaining defendants entered a
special appearance to contest personal jurisdiction. The two individual
defendants moved for dismissal for lack of personal jurisdiction, and the three
Japanese ministries moved for dismissal based on the Foreign Sovereign
Immunities Act (FSIA). 28 U.S.C. §§ 1602–1611.
The district court denied all of Ms. Good’s motions and granted the
defendants’ motions for dismissal. Ms. Good appeals this order in No. 07-2175.
Because the original appeal is still pending, we consolidated the appeals and are
able to resolve them at once. See Stone v. I.N.S., 514 U.S. 386, 401 (1995).
1
Because these Rule 60(b) motions were filed more than ten days after the
previous final order, they did not divest this Court of jurisdiction over Ms. Good’s
pending appeal No. 07-2068. See Stone v. I.N.S., 514 U.S. 386, 403 (1995).
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II. DISCUSSION
Because Ms. Good appears pro se, we construe her submissions liberally.
Hall v. Bellman, 935 F.2d 1106, 1110 (10th Cir. 1991). In that light, Ms. Good
presents two claims on appeal: (1) the district court erred when it held that it
lacked jurisdiction over the defendants, and (2) the district court abused its
discretion in dismissing the case rather than transferring it pursuant to 28 U.S.C.
§ 1631. Neither argument has merit.
A. The District Court Lacked Subject Matter Jurisdiction Over the
Japanese Ministries.
Subject matter jurisdiction over the Japanese Ministries of Justice, Finance,
and Transportation is barred by FSIA. 28 U.S.C. §§ 1330, 1602–1611. A foreign
state is immune from jurisdiction of United States courts unless immunity is
waived by a specific statutory exception. Id. § 1604. To litigate against a foreign
state in the courts of the United States, a plaintiff carries “‘the burden of showing
that an exception applies.’” Southway v. Cent. Bank of Nig., 328 F.3d 1267, 1271
(10th Cir. 2003) (quoting Gen. Elec. Capital Corp. v. Grossman, 991 F.2d 1276,
1382 (8th Cir. 1993).
It is undisputed that the Ministries are foreign states within the meaning of
FSIA. Ms. Good, however, argues that the Ministries waived immunity under §
1605(a)(1) because Japan elected to serve process on its own Ministries. The
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Japanese government, however, was required by the Hague Convention to serve
the complaint. 2 Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial Matters art. 5, Nov. 15, 1965, 20
U.S.T. 361; see 28 U.S.C. § 1608(a)(2). Japan did not waive immunity for its
Ministries by acting in accordance with international law.
Ms. Good also contends that immunity was waived under 28 U.S.C. §
1605(a)(2), which denies immunity where a claim “is based upon an act outside
the territory of the United States in connection with a commercial activity of the
foreign state . . . [that] cause[d] a direct effect in the United States.” Ms. Good
alleges that the Ministries’ “failure to prevent the actions” of private parties has
caused “serious loss to all investors in America who hold stock in Japanese
Insurance Companies.” R., Doc. 52, at 5. This “failure to prevent” allegation
refers to Japan’s sovereign regulatory activity rather than commercial activity;
therefore, § 1605(a)(2) is not applicable.
B. The District Court Lacked Personal Jurisdiction over the
Remaining Defendants.
We review the district court’s determination as to personal jurisdiction de
novo. Dudnikov v. Chalk & Vermillion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th
Cir. 2008). The plaintiff bears the burden of pleading facts that support the
exercise of personal jurisdiction. Id. at 1069. Only the well-pled facts of the
2
The Japanese central authority charged with serving foreign process is the
ministry of Foreign Affairs.
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complaint, affidavits, or other writings, as distinguished from conclusory
allegations, can establish jurisdiction. Id. at 1070. Two requirements are
necessary for a federal district court to assert personal jurisdiction over a
defendant. First, the defendant must be “one ‘who could be subjected to the
jurisdiction of a court of general jurisdiction in the state in which the district
court is located.’” United States v. Botefuhr, 309 F.3d 1263, 1271 (10th Cir.
2002) (quoting Fed. R. Civ. P. 4(k)(1)(A)). Second, “the exercise of personal
jurisdiction must not offend the due process clause of the Fourteenth
Amendment.” Id. (internal quotations omitted). Because New Mexico’s long-arm
statute has been interpreted to extend “as far as constitutionally permissible,” our
personal jurisdiction inquiry largely collapses into an analysis of Due Process.
Tercero v. Roman Catholic Diocese, 48 P.3d 50, 54 (N.M. 2002).
Under the Due Process clause, a defendant must have sufficient “minimum
contacts” with the forum state that subjecting him to its jurisdiction will not
“offend traditional conceptions of fair play and substantial justice.” Int’l Shoe
Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotation marks omitted).
Indeed, “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 “minimum
contacts” standard may be satisfied in two ways. First, a court may exercise
general jurisdiction when the defendant’s contacts with the forum state are
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“continuous and systematic.” Helicopteros Nacionales de Colombia, S.A. v. Hall,
466 U.S. 408, 415 (1984). Second, a court may exercise specific jurisdiction if a
defendant “has purposefully directed his activities at residents of the forum . . .
and the litigation results from alleged injuries that arise out of or relate to those
activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (internal
quotation marks omitted).
In this case, the corporate and individual defendants lack the requisite
minimum contacts with New Mexico to establish either general or specific
jurisdiction. After reviewing the record and briefs, we conclude that all of these
defendants reside in Japan, and all of the actions complained of occurred in Japan.
There is nothing in the record to indicate that any of the defendants has ties to the
State of New Mexico, with the exception of this lawsuit. Nonetheless, Ms. Good
makes several contentions that the defendants are subject to personal jurisdiction
in New Mexico.
First, she argues that Japanese Fuji is subject to personal jurisdiction
because it has a subsidiary incorporated in Illinois, the American Fuji Fire and
Marine Insurance Company (“American Fuji”). Ms. Good similarly argues that
Japanese Fuji has contacts with New Mexico through American International
Group (“AIG”), an insurance company that owns 20.04 percent of Japanese Fuji
Stock. Both claims are unavailing. For purposes of personal jurisdiction, “a
holding or parent company has a separate corporate existence and is treated
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separately from the subsidiary in the absence of circumstances justifying
disregard of the corporate entity.” Quarles v. Fuqua Indus., Inc., 504 F.2d 1358,
1362 (10th Cir. 1974); accord Benton v. Camero Corp., 375 F.3d 1070, 1081
(10th Cir. 2004). American Fuji and AIG are separately-incorporated companies.
They do not sell car insurance in Japan and were not involved in the car accident
giving rise to Ms. Good’s claim. Further, Ms. Good has not pleaded or shown
any facts that would justify disregard of American Fuji’s separate corporate
existence.
Ms. Good also contends that Japanese Fuji is subject to personal
jurisdiction because it maintains an Internet web site that is accessible in New
Mexico. The extent to which jurisdiction can be established by an Internet
presence, however, depends on the degree to which the web site is used to
conduct or solicit business within the forum. See Soma Med. Int’l v. Std.
Chartered Bank, 196 F.3d 1292, 1296 (10th Cir. 1999). The record is clear that
Japanese Fuji does not conduct any business in New Mexico through its web site
or through any other means.
Finally, Ms. Good claims that defendants made a general appearance and
consented to jurisdiction when they appeared before the district court and
addressed the merits of Ms. Good’s claims. However, even if the defendants did
address the merits of the case, “[n]o defense or objection is waived by being
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joined with one or more other defenses or objections in a responsive pleading or
in a motion.” Fed R. Civ. P. 12(b).
C. The District Court Did Not Abuse Its Discretion When It Denied
Ms. Good’s Motion to Transfer.
Ms. Good argues that even if the district court lacked personal jurisdiction,
it should have transferred the case pursuant to 28 U.S.C. § 1631, rather than
dismissing the case without prejudice. Under § 1631, a district court lacking
jurisdiction to hear an action “shall, if it is in the interest of justice, transfer such
action . . . to any other such court in which the action . . . could have been
brought at the time it was filed.” We review the district court’s decision to deny
Ms. Good’s motion to transfer under a clear abuse of discretion standard.
Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1543 (10th Cir.
1996).
Ms. Good argues that she was prejudiced by the district court’s refusal to
transfer her case to American Fuji’s supposed domicile in Illinois or California.
The district court’s decision to dismiss, however, was not an abuse of discretion.
“A court cannot transfer a suit to a court where personal jurisdiction does not
exist over the defendants originally.” Morris v. Peterson, 759 F.2d 809, 812
(10th Cir. 1985). As we have already discussed, American Fuji’s presence in a
forum state is insufficient to subject Japanese Fuji to personal jurisdiction absent
“circumstances justifying disregard for the corporate entity.” Quarles, 504 F.2d
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at 1362. Transfer could not have served “the interest of justice” because Ms.
Good has failed to show that personal jurisdiction over these Japanese defendants
would exist in any United States forum.
III. CONCLUSION
The judgment of the United States District Court for the District of New
Mexico is AFFIRMED. Appellant’s motions for leave to proceed in forma
pauperis are DENIED.
Entered for the Court,
Michael W. McConnell
Circuit Judge
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