Cynthia’s notes on Tenth Circuit Ruling on Employers Mutual v Bartile Roofs none of which was applied to her case. This flagged off prosecutors on Perry’s criminal investigation. They were able to expand their investigation which allowed them to get Sam Cummings on wire talking to Defendants about denying her Motion To Vacate which he did as he was told in an illegal conversation and gave no reason at all. This would be the same officers who provided information in the McNamara email regarding Perry’s intent to arrange a false arrest, which he did. She broke no law but was acting in compliance with Oklahoma requirements when seeking a Protective Order. Perry knew it was required because her first PO was denied in part because she failed to meet the requirement. The fact that he carried out such a threat meant he did it on purpose and is the reason she needs a Protective Order. Perry has told her “I’m rich. I buy judges. You will never get a Protective Order.” Nice of him to admit to a crime. How many times has he gone hunting with Cummings? I’m sure that number will come out in one court or another. Judge James Payne who transferred the case to Lubbock failing to apply anything at all in this case, decided by the Tenth in 2010, is also from Lubbock where Defendants live.
See EMC v Bartile Roofs Ruling From Tenth Here
“TH Agiculture Nutrition v Ace European Cited in Employer’s Mutual Benefit v Bartile Roofs (10th Cir)
Personal jurisdiction and transfers
Contract made in one state but venue had jurisdiction where most of substantial acts causing injury occurred. Case involves EMC’s indemnification, as the professional liablity insurer of Bartile Roofs and involves a breach of contract/ negligence suit arising from a contruction job in Wyoming in the building of a Hotel.
EMC is incorporated in Iowa
Bartile Roofs is incorporated or domiciled in Utah
Underwriting occurred in Colorado
Suit arising from EMC’s defense of lawsuit filed against Bartile in California state Court
EMC brought a diversity claim in Wyoming as that is the state where the injuries occurred. Bartile filed a Motion to Transfer which the district court denied and the matter appealed to the Tenth. EMC cross claimed for summary judgement and declaratory judgement on duty to indemnify. District Court granted EMC’s request to be relieved from indemnification, but denied motion for summary judgement requesting they be allowed to recoup costs.
28 US 1404 allows cases to be brought where the parties are domiciled or where the injuries occurred. The tenth circuit held the District Court’s decision.
The Tenth Circuit considered the following in its 24 page decision.
I. Personal Jurisdiction
A. When court considers pretrial motions to dismiss for lack of personal jurisdiction without having an evidentiary hearing, the Plaintiff need only make a prima facie showing of personal jurisdiction to defeat the motion. Plaintiff may carry the burden by demonstrating via affidavit or other written materials facts that if true would support jurisdiction. TH Agric Nutrition LLC v Ace European Grp Ltd 488 F. 3d 1282, 1286 (10th Cir 2007)
B. Defendant MUST demonstrate tha the presense of some other consideration would render jurisdiction unreasonable. (Ruzakiewicz v Lowe 556 F. 3d 1095, 1100 (10th Cir 2009)
C. Due Process under the Fourteenth Amendment cannot be violated – cannot violate the notion of fair play and justice
D. Due Process analysis applied by the 10th Circuit is as follows:
1. Whether the defendant has such minumum contacts within a state that he should reasonably forsee being hauled into court. OMI Holdings Inc. v Royal Ins Co. of Canada 149 F. 3d 1086, 1091 (10th Cir 1998), World Wide Volkswagen Corp. v Woodson 444 US 286, 297 100 S. Ct. 559, 62 LEd. 2d 490 (1980) Dudnikov v Chalk Vermillion Fine Arts, Inc. 514 F. 3d, 1063, 1071 (10th Cir 2008)
2. Contacts must consitute “purposeful availment” 1) purposeful availment consumating a transaction in the forum state. 2) litigation results from alleged injuries arising out of or related to these activies.
3. Requires actions by the defendant which create a substantial connection with the forum state. Court examines quality and quantity of contacts with the forum state. Contacts cannot be random, fortuitous, or attenuated – ASI Sprots Sci 514 F. 3d at 1058; OMI Holdings 149 F.3d at 1092
E. Arising “Out of or related to forum activities” Court determines whether or not a nexis exists between the Defendants forum related contacts and the Plaintiff’s cause of action. Court analyzes
1) proximate cause 2) “but for” cause and 3) substantial connection. Dudnikov 514 F. 3d at 1078 – 80.
a. Proximate cause is more restrictive and requires analysis as to whether or not any defendant’s contacts with the forum state are rlevant to the merits of Plaintiff’s cliams. Id. at 1078 see O’Conner 496 F. 3d at 318-19.
b. “but for” cause is less restrictive and uspports the exercise of the jurisidiction on “any event in the causal chain leading to the Plaintiff’s injury”. Dudnikov, 514 F.3d at 1078. Contract actions the 10th has consistently applied the more restrictive proximate cause approach.
c. In contract actions the 10th has consistently applied the more restrictive prximate cause approach. TH Agirc. Nutrition 488 F. 3d at 1292; Pro Axess 428 F.3d at 1279. OMI Holdings 149 F. 3d at 1095
d. “But For” results from alleged injuries that arise out of or relate to Bartile’s contacts with Wyoming.
F. Traditional Notions of Fair Play and Substantial Justice – Reasonable analysis requires weighing five factors:
1) Defendant’s burden
2) forum state’s interest in resolving the issue
3) Interstate judicial system’s interest in obtaining the most efficient resolution of controversies.
4) Plaintiff’s interest in receiving convenient and effective relief
5) shared interest of the several states in furthering fundamental social policies.
Pro Axess 428 F.3d at 1279 – 80
G. Burden on Defendant litigating in the forum – More expensive not reasonable consideratin to give weight to burden of the litigation enough to decline to exercise jurisdiction.
H. Forum State’s Interest In Adjudicating the Dispute
1) States have important interest in providing a forum in which their residents can seek redress ofr injuries caused by out of state actors AST Sports Sci. 514 F. 3d at 1062.
2) or disputes between non residents where conduct would affect residents OMI Holdings 149 F. 3d at 1096
3) or resolution dispute requires a general application of the forum state’s laws.
II. Plaintiff’s Interest in Convenient and Effective Relief
This factor weighs heavily in cases where a Plaintiff’s chances of recovery will be greatly diminished by forcing it to litigate in another forum because of that forum’s law or because the burden may be so overwhelming as to practically foreclose pursuit of the lawsuit. AST Sports Sci. 514 F.3d at 1062
A). key to location of witnesses, where the wrong giving rise to the lawsuit occurred dictates what forum’s substantive law governs the case and the injury. anylsis under conflict of law regarding relevant issues.
B) A state has interest in substantive social policies
C) Venue is proper in a judicial district in which a substantial part of the injuries occurred. Substantiality requirement is satisfied upon a showing of “acts and ommissions” that have a close nexus to the forum and that are relevant and give rise to the underlying claim
D) The Plaintiff’s choice of forum weighs against transfer. “Chrysler Credit Corp v Country Chrysler Inc. 928 F.2d 1509, 1516 (10th Cir 1991) “Plaintiff’s choice of forum should rarely be disturbed.” Transfers are not to be used merely to shift inconvenience from one party to another. The moving party bears the burden of establishing that the existing forum is inconvenient. Convenience of witnesses, access to proof outweighs convenience of movant. Scheidt v Klein 956 F.2d 963, 965 (10th Cir. 1992)
E) The Tenth Circuit consistently honors Plaintiff’s choice of forum unless the balance in defendant’s favor is shown by clear and convincing evidence Headrick 182 F. 2d at 310.
F.) Accessibility of witnesses and sources of proof weighs against transfer. Cook 816 F. Supp at 669, see also Palace Exploration Co. 316 F.3d at 1121-22.
G) In order to justify transfer, movant must 1) identify witnesses and their locations 2) indicate the quality of the witnesses or materiality of their testimony 3) show that any witnesses were unwilling to come to trial. Wright and Miller, supra note 13, 3851 at 227-28 if moving party merely has made a general allegation that necessary witnesses are located in the transferee forum the application for transferring the case should be denied. Moore supra 111.13 [f][v]. The materiality will determine the extent to which their convenience will be weighed.
H) Costs of making necessary proof – Pehr v Sunbeam Plastics Corp 874, F. Supp. 317, 321 (D. Kan. 1995) The argument fails to justify transfer because the record contains no evidence concerning the potential costs of litigating the case in the district where suit is brought.
I) Conflict of Laws – forum state provides the governing substantive law. There is an advantage to having local courts determine questions of law.
III. Bylin v Billings 568 F.3d 1224, 1229 (10th Cir 2009) A court does not abuse discretion when decisions are not “arbitrary, capricious, whimsical, or manifestly unreasonable”.
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