Whiting v. Hogan

• Decision Date: 28 February 2012
• Docket Number: No. CIV 11–0671 JB/GBW.,CIV 11–0671 JB/GBW.
• Citation: 855 F.Supp.2d 1266
• Court: U.S. District Court — District of New Mexico
• Parties: Larry WHITING, Leroy Whiting, & Lorenzo Garcia, Plaintiffs, v. Dana HOGAN; Clark Moving and Storage, Inc.; Mayflower Transit, LLC & The Hanover Insurance Company, Defendants.

855 F.Supp.2d 1266

Larry WHITING, Leroy Whiting, & Lorenzo Garcia, Plaintiffs,

v.Dana HOGAN; Clark Moving and Storage, Inc.; Mayflower Transit, LLC & The Hanover Insurance Company, Defendants.

No. CIV 11–0671 JB/GBW.

United States District Court, D. New Mexico.

Feb. 28, 2012.

George Anthony Bleus, Josh E. Eden, Bleus & Associates, LLC, Albuquerque, NM, for Plaintiffs.

Edward Shepherd, Christopher P. Winters, Allen, Shepherd, Lewis, Syra & Chapman, P.A., Albuquerque, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i)Defendant Hanover Insurance Group's Motion to Dismiss, filed August 5, 2011(Doc. 7)(“Hanover MTD”);(ii)DefendantMayflower Transit LLC's Motion to Dismiss, filed October 21, 2011(Doc. 19)(“Mayflower MTD”);(iii)Clark Moving & Storage, Inc.'s Motion to Dismiss, filed December 14, 2011(Doc. 27)(“Clark MTD”); and (iv)DefendantDana A. Hogan's Motion to Dismiss, filed January 10, 2012(Doc. 33)(“Hogan MTD”).The Court held a hearing on February 14, 2012.The primary issues are: (i) whether PlaintiffsLarry Whiting, Leroy Whiting, and Lorenzo Garcia have stated a claim against DefendantThe Hanover Insurance Company upon which relief can be granted; (ii) whether the United States District Court for the District of New Mexico is the proper venue for this case; (iii) whether the District of New Mexico has personal jurisdiction over DefendantClark Moving and Storage, Inc.; and (iv) whether the District of New Mexico has personal jurisdiction over DefendantDana Hogan.The Court will grant in part and deny in part the Mayflower MTD, Clark Moving MTD, and Hogan MTD.The Court finds that the District of New Mexico is not the proper venue for this action and that the Court lacks personal jurisdiction over Clark Moving and Hogan.Because the Court finds that it is in the interest of justice to transfer the case, the Court will transfer the case against Mayflower Transit, Clark Moving, and Hogan to the District of Arizona and will not dismiss the Complaint.The Court will grant the Hanover MTD, because the Court finds that the Complaint fails to state a claim against Hanover Insurance.

FACTUAL BACKGROUND

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.SeeComplaint for Personal Injuries¶ 14, at 3(dated June 24, 2011), filedJuly 29, 2011(Doc. 1–1)(“Complaint”).At the same time, traveling in the same direction, Hogan was operating a tractor-trailer.SeeComplaint¶ 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.SeeComplaint¶ 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.SeeComplaint¶ 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.SeeComplaint¶¶ 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.SeeComplaint¶¶ 28–32, at 5–6.Hanover Insurance insured Hogan.SeeComplaint¶ 33, at 6.

PROCEDURAL BACKGROUND

The Plaintiffs filed their Complaint in the First Judicial District Court, Santa Fe County, State of New Mexico on June 24, 2011.SeeDoc. 1–1.Each Plaintiff is a resident of New Mexico.SeeComplaint¶¶ 1–3, at 1.They assert that: (i) Hogan is a resident of Florida; (ii) Mayflower Transit is a foreign corporation organized under the laws of and with its principal place of business in Missouri; (iii) Clark Moving is a New York corporation with its principal place of business in New York; and (iv) Hanover Insurance is a foreign corporation.SeeComplaint¶¶ 4–6, 8, at 1–2.The Plaintiffs allege the following Counts: (i) Negligence and Negligence Per Se against Hogan; (ii) Negligent Entrustment & Vicarious Liability, Negligent Hiring, and Negligent Supervision against Clark Moving; and (iii) Negligent Entrustment & Vicarious Liability, Negligent Hiring, and Negligent Supervision against Mayflower Transit.SeeComplaintat 6, 8, 11.On July 29, 2011, the Defendants removed the case to federal court.See Notice of Removal, filed July 29, 2011(Doc. 1).They assert that the Court has subject-matter jurisdiction, because the parties are completely diverse and the amount in controversy is greater than $75,000.00.SeeNotice of Removalat 2–3.

The Defendants then filed several motions to dismiss.

1.Hanover Insurance.

On August 5, 2011, Hanover Insurance filed the Hanover MTD.SeeDoc. 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).SeeHanover MTDat 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 MTDat 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 MTDat 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 MTDat 3.It argues that neither requirement is met because: (i) Hogan was a resident of Florida; and (ii) the accident occurred in Arizona.SeeHanover MTDat 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.SeeHanover MTDat 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 MTDat 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.SeeHanover MTDat 5.

On August 19, 2011, the Plaintiffs filed PlaintiffLarry Whiting's, Leroy Whiting's, & Lorenzo Garcia's Response in Opposition to Defendant Hanover Insurance Group's Motion to Dismiss.SeeDoc. 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.SeeHanover Responseat 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.SeeHanover Responseat 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.SeeHanover Responseat 4.They agree that Hanover Insurance's joinder was premised in part on MFRA, but assert that New Mexico law applies to it.SeeHanover Responseat 5.The Plaintiffs argue that Hanover Insurance's “remedy for being named in a lawsuit is not dismissal”; rather, the proper remedy “is to bifurcate the insurer and stay the discovery against it unless and until such time as any claims may arise that directly implicate Defendant Hanover.”Hanover Responseat 5.They assert that the law of the forum is applied absent a compelling reason to apply foreign law.SeeHanover Responseat 5.The Plaintiffs contend that Hanover Insurance's joinder was not, on its face, improper and that Hanover Insurance is not entitled to dismissal.SeeHanover Responseat 6.

On August 30, 2011, Hanover Insurance filed its DefendantThe Hanover Insurance Company's Reply in Support of Its Motion to Dismiss.SeeDoc. 11(“Hanover Reply”).Hanover Insurance argues that its motion to dismiss was properly filed, because it has not yet filed a responsive pleading.SeeHanover Replyat 3.It asserts that it also never filed a responsive pleading in state court before removal.SeeHanover Replyat 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.SeeHanover Replyat 5.It notes that the Plaintiffs concede that they have no direct claims against Hanover Insurance.SeeHanover Replyat 6.

2.Mayflower Transit.

Mayflower Transit moves to dismiss the Complaint based on improper venue.SeeMayflower MTDat 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.SeeMayflower MTDat 2–3(citing28 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 MTDat 3.It contends that all the actions giving rise to the Plaintiffs' claims occurred in Arizona, such that venue is...