Damon Humphries v. Usdc-Azp ( 2019 )

FILED
NOT FOR PUBLICATION
MAR 12 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: DAMON P. HUMPHRIES, No. 18-71332
guardian and conservator for
Angela D. Humphries, D.C. No. 2:17-cv-01606-JJT
______________________________
DAMON P. HUMPHRIES, guardian and MEMORANDUM*
conservator for Angela D. Humphries,
Petitioner,
v.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA,
PHOENIX,
Respondent,
ALLSTATE INSURANCE COMPANY,
a foreign corporation; et al.,
Real Parties in Interest.
Appeal from the United States District Court
for the District of Arizona
John Joseph Tuchi, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Argued and Submitted March 4, 2019
Phoenix, Arizona
Before: CLIFTON, IKUTA, and FRIEDLAND, Circuit Judges.
Appellant Angela Humphries, through her guardian and conservator,
petitions this court for a writ of mandamus instructing the district court to ask the
District Court for the Eastern District of Michigan to retransfer her claims against
Allstate Insurance Company. We deny the petition.
We have held we have jurisdiction to issue such a writ in “extraordinary
circumstances involving a grave miscarriage of justice.” NBS Imaging Sys., Inc. v.
U.S. Dist. Court, 841 F.2d 297, 298 (9th Cir. 1988). We are not convinced this
case presents such circumstances. The five Bauman factors guide our decision.
See Bauman v. U.S. Dist. Court, 557 F.2d 650, 654-55 (9th Cir. 1977).
First, although Humphries is unable to appeal directly the Arizona district
court’s transfer order, appellate review is not completely precluded. She could
move in the Michigan district court to retransfer the case and, should that motion
fail, ultimately receive the desired relief by appealing its denial to the Sixth Circuit
after final judgment. See Posnanski v. Gibney, 421 F.3d 977, 980-81 (9th Cir.
2005).
2
Second, the prejudice Humphries alleges—risk of an unnecessary trial—is
generally insufficient to warrant mandamus relief. Wash. Pub. Utils. Grp. v. U.S.
Dist. Court, 843 F.2d 319, 325 (9th Cir. 1987). This case presents few, if any, of
the extraordinary circumstances we held justified issuing the writ in Varsic v. U.S.
District Court, 607 F.2d 245 251-52 (9th Cir. 1979).
Third, under this “highly deferential standard of review,” we conclude the
district court’s ruling that it lacked personal jurisdiction over Allstate was not
clearly erroneous. In re Swift Transp. Co., 830 F.3d 913, 916-17 (9th Cir. 2016)
(“It is well established that ‘[t]he absence of controlling precedent weighs strongly
against a finding of clear error. If ‘no prior Ninth Circuit authority prohibited the
course taken by the district court, its ruling is not clearly erroneous.” (citations
omitted)).
Fourth, because there was no clear violation of controlling precedent, the
district court’s order was not an oft-repeated error. See id. at 917.
Fifth, this petition does not present a “‘novel and important question’ that
‘may repeatedly evade review.’” In re United States, 884 F.3d 830, 837 (9th Cir.
2018) (quoting Perry v. Schwarzenegger, 591 F.3d 1147, 1156 (9th Cir. 2010)).
While we and the Supreme Court will likely need to address the issue this petition
raises, there is no indication it will repeatedly evade review; a litigant may raise it
3
on direct appeal following a dismissal for lack of personal jurisdiction, for
instance.
Therefore, having weighed the Bauman factors, we conclude this petition
does not warrant the extraordinary use of our mandamus powers.1
PETITION DENIED.
1
Because we find the district court fully credited Humphries’s proffered
evidence, we reject her contention that it disregarded evidence of Allstate’s
connections to Arizona.
4