United States District Court, N.D. California, San Jose Division
Khoa Dang Nguyen, Plaintiff, Pro se, San Jose, CA.
For Randy Parker, Chief Executive Officer, Permanent General Assurance Corporation, Defendant: Stephanie Forman, Tharpe and Howell, Sherman Oaks, CA; Stuart Edward Cohen, Tharpe and Howell, LLP, Sherman Oaks, CA.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS Re: Dkt. No. 11
EDWARD J. DAVILA, United States District Judge.
Plaintiff Khoa Dang Nguyen (" Nguyen") filed a Complaint against Randy Parker (" Parker"), in his individual capacity as Chief Executive Officer and President of Permanent General Companies (" The General"), for damages incurred after an automobile accident. Presently before the court is Parker's Motion to Dismiss the Complaint. See Docket Item No. 11. Nguyen did not file a timely opposition to the Motion.
Federal jurisdiction arises pursuant to 28 U.S.C. § 1332. The court finds this matter suitable for decision without oral argument pursuant to Civil Local Rule 7-1(b). Accordingly, the hearing scheduled for March 19, 2015, will be vacated, and Parker's motion will be granted for the reasons explained below.
Although the Complaint is not a model of clarity, the court has been able to decipher the salient facts from Nguyen's allegations and other documents submitted by Parker. Nguyen was involved in an automobile accident with Randy Burton on October 23, 2012, in San Jose. According to the police report describing the incident, Nguyen and Burton were in the left turn lane of southbound Monterey Highway at Phelan Avenue. The front end of Burton's vehicle collided with the rear end of Nguyen's vehicle when both were attempting a U-turn. Nguyen was transported to the hospital with neck pain and each vehicle sustained minor damage. The reporting officer concluded that Burton was at fault.
Burton had liability insurance with The General at the time of the accident. His policy allowed up to $15, 000 per person or $30, 000 per accident for claims of bodily injury, and up to $5, 000 for property damage claims.
On September 12, 2013, Nguyen made a demand on The General for $60, 579.68, which amount included damages for medical expenses, legal services, property damage, and income loss. The General countered Nguyen's demand with an offer of $8, 960 for medical expenses, which was eventually raised to the policy limit of $15, 000. The General also paid Nguyen $1, 394.95 based on its estimate of the damage to his vehicle.
Seemingly unsatisfied with the offer, Nguyen filed a lawsuit against The General in this court on April 4, 2014. See Case No. 5:14-cv-01567 EJD. After reviewing the action in anticipation of a Case Management Conference, the undersigned issued a detailed order on September 2, 2014, explaining that service of process was inadequate. Specifically, the court notified Nguyen that simply mailing the documents to The General did not suffice; " this type of service does not comply with either California or Tennessee law because it was not directed to an individual designated to accept service on behalf of Defendant and was not sent along with a request for return receipt ." The court also extended the deadline to complete service of process to September 16, 2014. But instead of re-serving the documents, Nguyen filed Notice of Voluntary Dismissal on September 8, 2014. The court dismissed the action without prejudice two days later. He initiated this action on September 29, 2014.
II. LEGAL STANDARD
Parker invokes several sections of Federal Rule of Civil Procedure 12, but only two are necessary to entirely resolve this motion.
A. Federal Rule of Civil Procedure 12(b)(2)
Under Rule 12(b)(2), a defendant may move for dismissal based on a lack of personal jurisdiction. Two independent limitations may restrict a court's power to exercise personal jurisdiction over a nonresident defendant: the applicable state personal jurisdiction rule and constitutional principles of due process. Sher v. Johnson, 911 F.2d 1357, 1360 (9th Cir. 1990). California's statutory limitation is co-extensive with the outer limits of due process. See id. at 1361; Cal. Code Civ. Proc. § 410.10. Accordingly, the federal ...