Maria Nantes v. New London County Mutual Insur

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 05 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
MARIA VICTORIA NANTES, an No. 10-55357
individual; AIDA MELIKYAN, an
individual; ARMENUI DZHGALIAN, an D.C. No. 2:09-cv-07161-RGK-JC
individual,
Plaintiffs - Appellants, MEMORANDUM *
v.
NEW LONDON COUNTY MUTUAL
INSURANCE COMPANY; GEICO
GENERAL INSURANCE COMPANY,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted June 8, 2011
Pasadena, California
Before: D.W. NELSON and IKUTA, Circuit Judges, and PIERSOL, Senior
District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.
District Court for South Dakota, Sioux Falls, sitting by designation.
Maria Victoria Nantes, Aida Melikyan, and Armenui Dzghalian
(“Petitioners”) appeal the district court’s order denying their motion to remand and
granting Respondent New London County Mutual Insurance Company’s (“NLC”)
motion to dismiss for lack of personal jurisdiction. This suit arises out of a carbon
monoxide poisoning incident that occurred in Nantes’s Connecticut home, which
severely injured Melikyan and Dzghalian. On appeal, Petitioners argue that 28
U.S.C. § 1332(c)(1) operates to defeat the district court’s diversity jurisdiction over
this case, or alternatively that Respondent Geico’s nonconsent to removal bars the
district court’s removal jurisdiction. Petitioners argue further that the district court
may properly exercise personal jurisdiction over NLC. We affirm.
Section 1332(c)(1) provides:
[A] corporation shall be deemed to be a citizen of any State by which
it has been incorporated and of the State where it has its principal
place of business, except that in any direct action against the insurer
of a policy or contract of liability insurance, whether incorporated or
unincorporated, to which action the insured is not joined as a party-
defendant, such insurer shall be deemed a citizen of the State of which
the insured is a citizen, as well as of any State by which the insurer
has been incorporated and of the State where it has its principal place
of business.
28 U.S.C. § 1332(c)(1) (emphasis added). The law operates to bar federal diversity
jurisdiction in certain insurance disputes. Moving beyond the plain language of the
provision, this court has explained:
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Courts have uniformly defined the term “direct action” as used in
[Section 1332(c)(1)] as those cases in which a party suffering injuries
or damage for which another is legally responsible is entitled to bring
suit against the other’s liability insurer without joining the insured or
first obtaining a judgment against him.
Beckham v. Safeco Ins. Co. of Am., 691 F.2d 898, 901-02 (9th Cir. 1982) (emphasis
added). Because Melikyan and Dzghalian first obtained a judgment against
Nantes, the insured, this court’s case law dictates that the instant suit is not a
“direct action” within the meaning of Section 1332(c)(1). Nantes’s citizenship is
therefore not imputed to NLC, and the district court may assert diversity
jurisdiction over the case. Petitioners urge this court to disregard the Beckham
definition as dicta, but we decline to do so. Even assuming that the definition is
dicta, the Beckham court appears to be correct that federal courts interpret Section
1332(c)(1) uniformly. Id. We follow that interpretation here.
We further affirm the district court’s determination that Geico was a
fraudulently joined defendant and should be dismissed from the case.
Accordingly, Geico’s nonconsent to removal did not pose a bar to the district
court’s removal jurisdiction. See United Computer Sys., Inc. v. AT&T Corp., 298
F.3d 756, 761-62 (9th Cir. 2002).
Finally, we affirm the district court’s dismissal for lack of personal
jurisdiction. Petitioners cannot establish that NLC purposefully directed activities
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toward California, or that the claims in this suit arose out of any NLC contacts with
California. “[T]he purposeful availment analysis turns upon whether the
defendant’s contacts are attributable to actions by the defendant himself, or
conversely to the unilateral activity of another party.” Hirsch v. Blue Cross, Blue
Shield of Kansas City, 800 F.2d 1474, 1478 (9th Cir. 1986) (internal quotation
marks and citations omitted). Here, NLC’s purported contacts with California
were directly attributable to Petitioners’ unilateral decisions to move back to the
state. Further, no evidence was provided to establish that NLC renewed Nantes’s
policy while she was in California. Even assuming such a renewal occurred, this
suit did not arise out of that contact because any renewal occurred well after the
incident in question. Finally, the broad policy language cannot be the basis for
exercising specific jurisdiction over NLC. See Hunt v. Erie Ins. Grp., 728 F.2d
1244, 1246-47 (9th Cir. 1984).
We deny Petitioners’ request for jurisdictional discovery. See Wells Fargo
& Co. v. Wells Fargo Exp. Co., 556 F.2d 406, 430 n.24 (9th Cir. 1977).
AFFIRMED.
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