Uffner Jr v. La Reunion Francaise SA

• Decision Date: 15 November 2000
• Docket Number: No. 00-1231,00-1231
• Citation: 244 F.3d 38
• Parties: (1st Cir. 2001) DANIEL L. UFFNER, JR., Plaintiff, Appellant, v. LA REUNION FRANCAISE, S.A.; T.L. DALLAS & CO. LTD.; and SCHAEFFER & ASSOCIATES, INC., Defendants, Appellees. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 38

244 F.3d 38 (1st Cir. 2001)

DANIEL L. UFFNER, JR., Plaintiff, Appellant, v. LA REUNION FRANCAISE, S.A.; T.L. DALLAS & CO. LTD.; and SCHAEFFER & ASSOCIATES, INC., Defendants, Appellees.

No. 00-1231

United States Court of Appeals For the First Circuit

Heard November 15, 2000

Decided March 26, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge] Paul E. Calvesbert-Borgos, with whom Calvesbert Law Offices PSC and Jose G. Baquero-Tirado, were on brief, for appellant.

Peter Diaz-Santiago, was on brief, for appellee La Reunion Francaise, S.A. and Jeannette M. Lopez-de Victoria, with whom Pinto-Lugo & Rivera PSC and Dario Rivera-Carrasquillo, were on brief, for appellee Schaeffer & Associates, Inc.

Before Torruella, Chief Judge, Lipez, Circuit Judge, and Garcia-Gregory,^* District Judge.

TORRUELLA, Chief Judge.

Plaintiff-appellant DanielaL. Uffner, Jr. filed this diversity suit in federal district court in the District of Puerto Rico against his insurance issuer and underwriters for wrongful denial of an insurance claim. Defendants-appellees La Reunion Francaise, S.A. ("La Reunion"), T.L. Dallas & Co. Ltd. ("T.L. Dallas"), and Schaeffer & Associates, Inc. ("Schaeffer") filed motions to dismiss for lack of subject matter jurisdiction, failure to state a claim, and improper venue. The district court granted the motions based upon lack of personal jurisdiction and improper venue. For the reasons stated below, we vacate the district court's dismissal and remand the case for further proceedings.

BACKGROUND

La Reunion is a French insurance company which provides vessels with marine insurance coverage and has its principal place of business in Paris, France. T.L. Dallas, a marine underwriting manager based in Bradford, England, specializes in insuring yachts and represents La Reunion in the placement of marine insurance policies. Finally, Schaeffer is an underwriting agent located in the State of Georgia that places yacht policies in the United States (including Puerto Rico) for T.L. Dallas. Together, these three entities issued and underwrote a marine policy for Uffner's sailing yacht, La Mer, in a cover note dated March 18, 1997.

On June 14, 1997, Uffner departed from Fajardo, Puerto Rico on a voyage to St. Thomas, U.S. Virgin islands. When he was positioned near Isla Palominos, a small island approximately one mile off the coast of Puerto Rico, a fire broke out in the engine room, forcing Uffner to abandon the vessel. The yacht subsequently sank in the same location. Shortly thereafter, Uffner contacted his insurance broker, International Marine Insurance Services ("IMIS") to file a claim for the loss of the boat. After a series of written communications and telephone calls between IMIS and appellees, the claim was denied due to the alleged absence of a "current out-of-water survey."

Uffner filed this suit on June 12, 1998, claiming damages for a bad-faith denial of an insurance claim. La Reunion and T.L. Dallas filed separate motions to dismiss based on lack of subject matter jurisdiction, failure to state a claim upon which relief can be granted, and improper venue. Schaeffer filed a motion joining these motions to dismiss on the same grounds. Uffner timely opposed all motions.

On September 20, 1999, the district court dismissed Uffner's complaint without prejudice, concluding that the court lacked personal jurisdiction over appellees and that venue did not lie in Puerto Rico. Uffner moved the court to reconsider its ruling and requested leave to amend the complaint in order to assert admiralty jurisdiction as an alternative basis for subject matter jurisdiction. The court denied both motions on December 10, 1999, and this appeal followed.

DISCUSSION

The district court dismissed appellant's complaint on two grounds. First, the court concluded that pursuant to the provisions of the Puerto Rico Long-Arm statute, appellees lacked sufficient minimum contacts with the forum to be subject to personal jurisdiction therein. Uffner v. La Reunion Francaise, No. 00-1231 (D.P.R. Sept. 21 1999) (judgment granting motion to dismiss). In addition, the court determined that the suit involved a contract claim unrelated to the District of Puerto Rico, making it an improper forum for litigation. Id. We review the court's legal conclusions supporting the dismissal de novo. Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 204 (1st Cir. 1994).

A. Personal Jurisdiction

In their motions to dismiss, appellees argued that the court lacked subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1), that Uffner failed to state a claim for which relief could be granted, Fed. R. Civ. P. 12(b)(6), and that venue was improper, Fed. R. Civ. P. 12(b)(3). None of the parties raised any objection to personal jurisdiction. See Fed. R. Civ. P. 12(b)(2). Nevertheless, the court itself raised and disposed of the motion on this ground. In doing so, it overlooked the provisions of Fed. R. Civ. P. 12(g), which states that "[i]f a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted . . . ." Rule 12(h)(1)(A) provides, in turn, that "[a] defense of lack of personal jurisdiction over the person is waived . . . if omitted from a motion in the circumstances described in subdivision (g) . . . ." Fed. R. Civ. P. 12(h)(1)(A). By failing to include a 12(b)(2) argument in their motion to dismiss, appellees waived this defense in the district court. Glater v. Eli Lilly & Co., 712 F.2d 735, 738 (1st Cir. 1983) ("It is clear . . . that defendants wishing to raise [a defense of lack of personal jurisdiction] must do so in their first defensive move, be it a Rule 12 motion or a responsive pleading.").

Once a party has waived its defense of lack of personal jurisdiction, the court may not, sua sponte, raise the issue in its ruling on a motion to dismiss. Pilgrim Badge & Label Corp. v. Barrios, 857 F.2d 1, 3 (1st Cir. 1988) (per curiam). This is so because, since personal jurisdiction may be acquired through voluntary appearance and the filing of responsive pleadings without objection, the court has no independent reason to visit the issue.¹ See id. Furthermore, such a prohibition avoids prejudicing the plaintiff, who has not had an opportunity to respond to the issue before the court, and promotes the purpose of Rules 12(g) and (h). See id. (noting that the rules serve "to eliminate the presentation of these defenses in a piecemeal fashion"). There is no evidence here that the Rule 12(b)(2) defense was unavailable to appellees at the time they filed their answer. See Glater, 712 F.2d at 738 (finding an exception to the strict waiver rule when the defense was not available when the motion was filed). Nor is this merely a case of a litigant improperly characterizing a substantive argument for lack of personal jurisdiction under a different subsection. See LCF Lessors, Inc. v. Pac. Sewer Maint. Corp., 739 F.2d 4, 7 (1st Cir. 1984) (stating that this Court is not "bound by the label below") (internal citation omitted). Rather, appellees simply failed to raise the issue in their motion to dismiss and thereby consented to the court's jurisdiction. Since the court was not at liberty to nullify appellees' consent, we conclude that the district court erred in dismissing the complaint for lack of personal jurisdiction.²

B. Venue

Due to its focus on personal jurisdiction, the district court dealt only perfunctorily with the issue of whether venue was proper in the district of Puerto Rico. Specifically, the court found that the appellant's claim sounded in contract rather than tort. As such, the court observed, the claim was wholly unrelated to Puerto Rico: the "triggering event" was the denial of the claim and "[t]he issue at bar is the interpretation of the contract." The court also noted that the contract was neither negotiated nor formed in Puerto Rico. Finally, according to the court, the occurrence of the fire in Puerto Rican waters was "a tenuous connection at best."

To begin, the distinction between tort and contract is immaterial to the requirements for venue set forth in the general venue statute, 28 U.S.C. § 1391(a).³ Under this statute [a] civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may be otherwise brought.

28 U.S.C. § 1391(a). There is no dispute that § 1391(a)(1) is inapplicable in this case. The question, then, is whether "a substantial part of the events . . . giving rise to the claim occurred" in Puerto Rico.⁴

Prior to 1990, § 1391(a) provided venue in "the judicial district . . . in which the claim arose." 28 U.S.C. § 1391(a) (1988). Congress amended the statute to its current form because it found that the old language "led to wasteful litigation whenever several different forums were involved in the transaction leading up to the dispute." Cottman Transmission Sys. v. Martino, 36 F.3d 291, 294 (3d Cir. 1994) (citing Rep. of the Fed. Cts. Study Comm. 94 (Comm. Print 1990)). The pre-amendment statute also engendered a plethora of tests to determine the single venue in which the claim "arose." See, e.g., Rosenfeld v. S.F.C. Corp., 702 F.2d 282, 284 (1st Cir. 1983) (observing that the Court could choose one of several...