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Calkins v. Bankers Life and Casualty Co.

January 9, 2009


The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge


This matter is before the court on defendant Michael A. Nowak's ("Nowak") motion to dismiss pursuant to Rule 12(b)(2)*fn1 of the Federal Rules of Civil Procedure.*fn2 Plaintiff Patricia Calkins' ("Calkins") opposes the motion. For the reasons set forth below,*fn3 defendant Nowak's motion to dismiss is GRANTED.


In October 1999, plaintiff Calkins purchased a Long Term Care Policy (the "Policy") from defendant Bankers Life and Casualty Company ("Bankers"). (Compl., Ex. 1 to Notice of Removal, filed Sept. 17, 2008, ¶ 9; Decl. of Michael A. Nowak in Supp. of Def.'s Mot. to Dismiss ("Nowak Decl."), filed Oct. 23, 2008.) At the time, defendant Nowak was a sales agent for Bankers and sold the Policy to Calkins. (Nowak Decl. ¶ 4.) Plaintiff alleges that Nowak represented to her that the Policy's premiums would not increase. (Compl. ¶ 18.) However, on August 4, 2006, defendant Bankers Life and Casualty Company ("Bankers") sent plaintiff a Billing Notice, informing her that her premiums had increased. (Id. ¶ 19.)

Defendant Nowak has been a resident of Michigan since approximately 1973. (Nowak Decl. ¶ 3.) He is licensed as a "Life and Health Insurance Agent" in the State of Michigan, and has been a sales agent in Michigan since 1998. (Id.) Nowak is not licensed, nor has he ever been licensed, to conduct business in California. (Id.) He has never solicited or conducted business in California, nor does he maintain any business presence in California. (Id. ¶¶ 6, 8.) Nowak has never been to California. (Id. ¶ 9.)

At the time plaintiff Calkins purchased the Policy, she resided in Michigan. (Pl.'s Opp'n to Def.'s Mot. to Dismiss ("Opp'n"), filed Dec. 30, 2008, at 1.) All dealings with and surrounding the sale of the Policy took place in Michigan. (Nowak Decl. ¶ 4.) All of the work performed by Nowak on the Policy was performed in Michigan, pursuant to Michigan's laws regarding the sale of such policies. (Id. ¶ 5.) However, the Policy contains no residency requirements for benefits. (Supplemental Decl. of Michael A. Nowak ("Supp. Nowak Decl."), filed Dec. 15, 2008, ¶ 5.) Subsequently, plaintiff moved to California; she informed defendant Bankers of her Change of Address on or about October 8, 2007. (Compl. ¶ 23.) Calkins argues that her premiums increased while she was a resident of California and the she paid premiums on the Policy from California. (Compl. ¶ 11; Opp'n at 2, 6.) Nowak has not received any premium payments on renewals for the Policy since he left Bankers in approximately 1999 or 2000. (Supp. Nowak Decl. ¶ 4.)

On July 25, 2008, plaintiff filed a complaint in the Superior Court of California for the County of Placer, alleging claims for (1) Negligent Misrepresentation against all defendants; (2) Intentional Misrepresentation against all defendants; and (3) Professional Negligence against defendant Michael A. Nowak ("Nowak") and The Bunker Insurance Group, Inc. ("Bunker"). (Compl., Ex. 1 to Notice of Removal, filed Sept. 17, 2008.) Defendant Bankers removed the case to this court on September 17, 2008, on the basis of diversity jurisdiction.


Defendant Nowak moves to dismiss plaintiff Calkin's complaint for lack of personal jurisdiction under Rule 12(b)(2) of the Federal Rules of Civil Procedure. "Where, as here, there is no applicable federal statute governing personal jurisdiction, the law of the state in which the district court sits applies." Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1484 (9th Cir. 1993) (citation omitted). "California's long-arm statute allows courts to exercise personal jurisdiction over defendants to the extent permitted by the Due Process Clause of the United States Constitution." Id. at 1484 (citation omitted). Thus, only constitutional principles constrain the jurisdiction of a federal court in California. Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990). "Due process requires that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of suit does not offend traditional notions of fair play and substantial justice." Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1129 (9th Cir. 2003) (internal quotations omitted); see Burger King v. Rudzewciz, 471 U.S. 462, 476 (1985).

Once a defendant challenges jurisdiction, the burden of proof to show that jurisdiction is appropriate lies with the plaintiff. Sher, 911 F.2d at 1361. When a defendant's motion to dismiss is to be decided on the pleadings, affidavits, and discovery materials, the plaintiff need only make a prima facie showing that personal jurisdiction exists in order for the action to proceed. Id.

A court may exercise either general or specific jurisdiction over a non-resident defendant. "General jurisdiction exists when a defendant is domiciled in the forum state or his activities there are 'substantial' or 'continuous and systematic.'" Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998) (quoting Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414-416 (1984)). When a defendant does not reside in the forum state, the contacts must be such that they "approximate physical presence in the forum state." Schwarzenegger v. Fred Martin Co., 374 F.3d 797, 801 (9th Cir. 2004) (quoting Bancroft v. Masters, 223 F.3d 1082, 1086 (9th Cir. 2000)). "This is an exacting standard, as it should be, because a finding of general jurisdiction permits a defendant to be haled into court in the forum state to answer for any of its activities anywhere in the world." Id. (citing Brand v. Menlove Dodge, 796 F.2d 1070, 1073 (9th Cir. 1986) (collecting cases where general jurisdiction was denied despite the defendants' significant contacts with forum)). Plaintiff concedes that defendant Nowak does not have systemic and continuous physical contacts with California sufficient to justify general personal jurisdiction. (Opp'n at 3.)

Where general jurisdiction does not exist, the court may still determine whether the defendant has had sufficient minimum contacts with the state, as it relates to the pending litigation against it, in order to justify the exercise of specific jurisdiction. See Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 270 (9th Cir. 1995). In determining whether a district court can exercise specific jurisdiction over a defendant, the Ninth Circuit has articulated the following three-part test:

(1) the nonresident defendant must purposefully direct [its] activities or consummate some transaction with the forum or resident thereof; or perform some act by which [it] purposefully avails [itself] of the privilege of conducting activities in the ...

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