796 F.2d 299 (9th Cir. 1986), 85-6160, Fields v. Sedgwick Associated Risks, Ltd.

Docket Nº:85-6160.
Citation:796 F.2d 299
Party Name:Randolph M. FIELDS, Plaintiff-Appellant, v. SEDGWICK ASSOCIATED RISKS, LTD., G. Lloyd-Roberts, et al., Defendants- Appellees.
Case Date:August 06, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 299

796 F.2d 299 (9th Cir. 1986)

Randolph M. FIELDS, Plaintiff-Appellant,

v.

SEDGWICK ASSOCIATED RISKS, LTD., G. Lloyd-Roberts, et al.,

Defendants- Appellees.

No. 85-6160.

United States Court of Appeals, Ninth Circuit

August 6, 1986

Argued and Submitted April 7, 1986.

Page 300

Richard B. Munks, San Diego, Cal., for plaintiff-appellant.

Douglas M. Moore, Jr., San Francisco, Cal., for defendants-appellees.

Appeal from the United States District Court for the Southern District of California.

Before SCHROEDER and FLETCHER, Circuit Judges, and WILKINS, [*] District Judge.

FLETCHER, Circuit Judge:

Randolph Fields appeals from an order dismissing his complaint alleging breach of contract and related claims on the ground that the district court lacked personal jurisdiction over the defendants Sedgwick Associated Risks, Ltd. and G. Lloyd-Roberts. We affirm.

BACKGROUND

Fields is an English barrister and an attorney admitted to practice in California. He is both an American citizen and a British subject, and, during the period prior to the filing of this action, lived part of the time in the United States and part of the time in Great Britain. Lloyd-Roberts is an underwriting member of Lloyd's of London who is the lead underwriter of a syndicate known as Syndicate 55. Sedgwick Associated Risks is an insurance broker incorporated in London. It is a subsidiary of Sedgwick Group.

This action concerns interpretation of two professional liability insurance policies covering Fields's law practice. Each was procured by Sedgwick, which acted as Fields's broker, and was issued by Syndicate 55. During the period covered by the second policy, Fields presented a claim for indemnification that allegedly arose partly from his American practice. Sedgwick informed him that Lloyd-Roberts had determined that the claim was not covered under the second policy. Fields alleges that it would have been covered under the first policy, that he agreed with defendants to renew that policy, and therefore that the second policy should cover his claim.

He sued in California state court, alleging breach of contract, negligent failure to procure insurance, bad faith refusal to provide insurance benefits and violations of California insurance statutes. The defendants moved for dismissal based on inconvenient forum. Before the state court ruled on the motion, the defendants removed the case to federal court and moved for dismissal on the basis of lack of personal jurisdiction and forum non conveniens. The district court found that it lacked personal jurisdiction and granted the motion. Fields timely appeals.

DISCUSSION

I. Waiver

A defendant can waive personal jurisdiction by its actions. See Fed.R.Civ.P. 12(h)(1). In this case, before removal, the defendants moved to dismiss the action in state court on the ground of inconvenient forum pursuant to Cal.Civ.Pro.Code. Sec. 418.10 (West 1973). Section 418.10 allows a defendant simultaneously to file motions to quash on the ground of lack of personal jurisdiction and to dismiss for inconvenient forum. Section 418.10(a). Fields contends that the defendants' failure to raise personal jurisdiction in its state court motion waived the issue. We disagree.

The motion to dismiss constituted only a limited appearance in state court. Section

Page 301

418.10(d). See Berard Construction Co. v. Municipal Court, 49 Cal.App.3d 710, 715, 122 Cal.Rptr. 825, 828 (1975) (motion to dismiss on ground of inconvenient forum "statutorily exempt from being treated as a general appearance"). Defendants timely raised the personal jurisdiction issue upon removal to federal court. Nothing in Fed.R.Civ.P. 12(h) indicates that a limited state court appearance should be deemed a waiver of personal jurisdiction under these circumstances.

II. Burden of Proof/Standard of Review

The plaintiff bears the burden of establishing that the court has personal jurisdiction. Cubbage v. Merchent, 744 F.2d 665, 667 (9th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1359, 84 L.Ed.2d 380 (1985). Where, as in this case, the trial court ruled on the issue relying on affidavits and discovery materials without holding an evidentiary hearing, dismissal is appropriate only if the plaintiff has not made a prima facie showing of personal jurisdiction. Congoleum Corp. v. DLW Aktiengesellschaft, 729 F.2d 1240, 1241 (9th Cir.1984); Data Disc, Inc. v. Systems Technology Associates, 557 F.2d 1280, 1284-85 (9th Cir.1977). Our review is de novo. See Congoleum, 729 F.2d at 1241. For the purposes of the appeal, we treat the plaintiff's allegations as correct. See Pacific Atlantic Trading Co. v. M/V Main Express, 758 F.2d 1325, 1327 (9th Cir.1985).

III. General Jurisdiction

"In a case based on diversity jurisdiction, a federal court applies the personal jurisdiction rules of the forum state provided the exercise of jurisdiction comports with due process." Scott v. Breeland, 792 F.2d 925, 927 (9th Cir.1986). Because California imposes no greater restrictions than does the United States Constitution, see id.; Cal.Civ.Pro.Code Sec. 410.10 (West 1973), "federal courts in California may exercise jurisdiction to the fullest extent permitted by due process." Scott, 792 F.2d at 927; see Haisten v. Grass Valley Medical Reimbursement Fund, Ltd., 784 F.2d 1392, 1396 (9th Cir.1986).

There are two types of personal jurisdiction: general and specific. General personal jurisdiction, which enables a court to hear cases unrelated to the defendant's forum activities, exists if the defendant has "substantial" or "continuous and systematic" contacts with the forum state. Haisten, 784 at 1396; Peterson v. Kennedy, 771 F.2d 1244, 1261 (9th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1642, 90 L.Ed.2d 187 (1986). See Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984). This is a fairly...

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