2:17-cv-01108
D. Nev.Apr 30, 2019Background
- Malcolm contracted with Acrylic Tank Manufacturing (ATM) in 2007 for a large marine aquarium installed in Scotland; the aquarium collapsed in 2015, causing extensive property damage.
- Reynolds Polymer Technology (Reynolds), a Colorado corporation, manufactured the acrylic cylinder in Colorado and shipped it directly to Scotland; ATM installed the tank without Reynolds’ participation.
- Malcolm sued ATM and Reynolds in the District of Nevada in April 2017; the court dismissed Reynolds for lack of personal jurisdiction on July 6, 2017.
- Malcolm later filed a separate suit against Reynolds in the District of Colorado; ATM intervened in Colorado.
- ATM moved in Nevada to (1) modify and certify the July 6, 2017 order for interlocutory appeal under 28 U.S.C. § 1292(b) and (2) transfer the Nevada action to the District of Colorado under 28 U.S.C. § 1404(a).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court should certify its July 6, 2017 order for interlocutory appeal under § 1292(b) | Malcolm argued no interlocutory certification was warranted (implicit) | ATM argued the court misapplied personal jurisdiction law and that the order presents a substantial ground for difference of opinion | Denied — ATM failed to show a substantial ground for difference of opinion; mere disagreement is insufficient |
| Whether Nevada action should be transferred to District of Colorado under § 1404(a) | Malcolm argued Colorado lacks personal jurisdiction over ATM and transfer is improper | ATM argued Colorado is a more appropriate forum and that the case could have been brought there | Denied — Colorado does not have general or specific jurisdiction over ATM, so the action could not originally have been brought there |
| Whether District of Colorado has general jurisdiction over ATM | Malcolm maintained ATM is at home in Nevada (incorporation and PPB) | ATM did not show substantial, continuous, systematic contacts with Colorado | Denied — ATM is incorporated and headquartered in Nevada; no evidence of being "at home" in Colorado |
| Whether District of Colorado has specific jurisdiction over ATM | Malcolm contended contract and dealings do not establish contacts with Colorado | ATM argued prior dealings with Reynolds and involvement in manufacture created purposeful availment of Colorado | Denied — Contract and dealings do not show purposeful availment in Colorado; ATM did not negotiate or direct activities in Colorado |
Key Cases Cited
- In re Cement Antitrust Litig., 673 F.2d 1020 (9th Cir. 1982) (standards for § 1292(b) interlocutory certification)
- Swint v. Chambers Cnty. Comm’n, 514 U.S. 35 (1995) (purpose of § 1292(b) is immediate review of pivotal, debatable interlocutory orders)
- James v. Price Stern Sloan Inc., 283 F.3d 1064 (9th Cir. 2002) (§ 1292(b) motions granted sparingly)
- U.S. Rubber Co. v. Wright, 359 F.2d 784 (9th Cir. 1966) (interlocutory certification appropriate only in extraordinary cases)
- Couch v. Telescope Inc., 611 F.3d 629 (9th Cir. 2010) (clarifies when substantial ground for difference of opinion exists)
- Ferens v. John Deere Co., 494 U.S. 516 (1990) (purpose of § 1404(a) to prevent waste and inconvenience)
- Continental Grain Co. v. Barge FBL-585, 364 U.S. 19 (1960) (forum non conveniens and transfer objectives)
- Jones v. GNC Franchising, Inc., 211 F.3d 495 (9th Cir. 2000) (case-by-case convenience and fairness for § 1404(a) analysis)
- Commodity Futures Trading Comm’n v. Savage, 611 F.2d 270 (9th Cir. 1979) (burden on movant to show transfer is proper)
- Van Dusen v. Barrack, 376 U.S. 612 (1964) (transfer requires action could have been brought in transferee district)
- A.J. Indus., Inc. v. U.S. Dist. Court for Cent. Dist. of Cal., 503 F.2d 384 (9th Cir. 1974) (requirements to commence action in another forum)
- Hoffman v. Blaski, 363 U.S. 335 (1960) (limitations on waiving venue and jurisdictional requirements)
- Pro Axess, Inc. v. Orlux Distrib., Inc., 428 F.3d 1270 (10th Cir. 2005) (Colorado long-arm statute and due process reach)
- Daimler AG v. Bauman, 571 U.S. 117 (2014) (paradigm bases for general jurisdiction)
- World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) (minimum contacts and fair play analysis)
- Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102 (1987) (specific jurisdiction and purposeful availment principles)
- Int'l Shoe Co. v. Washington, 326 U.S. 310 (1945) (minimum contacts standard)
- AST Sports Sci., Inc. v. CLF Distrib. Ltd., 514 F.3d 1054 (10th Cir. 2008) (contract-case factors for purposeful availment)