United States District Court, N.D. California
ORDER GRANTING MOTION OF ACUITY TO DISMISS THIRD
PARTY COMPLAINT FOR LACK OF PERSONAL JURISDICTION DKT. NO.
GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE.
defendant Acuity brings the instant motion to dismiss the
third-party complaint filed against it by defendant Old
Republic General Insurance Corporation for lack of personal
jurisdiction under Rule 12(b)(2) of the Federal Rules of
Civil Procedure. (Dkt. No. 120.) Old Republic's third
party complaint (Dkt. No. 69) against Acuity is for
contribution based upon the policy issued to non-party
Midwest Curtainwalls (“Midwest”), a material
supplier for the construction work that was the subject of
the underlying litigation in the state court.
carefully considered the papers submitted, the pleadings in
this action, and the matters properly subject to judicial
notice, and for the reasons set forth below, the Court
Grants the Motion to Dismiss Acuity for lack
of personal jurisdiction. Old Republic fails to offer
evidence to establish that Acuity is subject to personal
jurisdiction in this Court.
Webcor Construction, L.P. (“Webcor”) and
Architectural Glass and Aluminum Co., Inc.
(“AGA”) bring the instant federal action for
breach of insurance contracts, breach of the implied covenant
of good faith and fair dealing, and declaratory relief. The
instant action arises from litigation in the Superior Court
of California, County of San Francisco. There, CDC San
Francisco LLC (“CDC”) brought a construction
defect case against Webcor, AGA, Midwest, Viracon, Inc.
(“Viracon”), and Quanex I.G. Systems, Inc.
(“Quanex”). (See RJN filed in connection
with National's Motion to Dismiss, Dkt. No. 53,
“the SF Action.”) CDC had entered into a contract
with Webcor for construction of the InterContinental San
Francisco Hotel. (Second Amended Complaint
[“SAC”], Dkt. No. 159, ¶ 19.) Webcor
contracted with AGA for the design, construction, and
installation of a curtain wall glazing system to consist of
an interconnected system of blue glass forming the
building's entire exterior. AGA subcontracted with Midwest to
design, engineer, and fabricate the aluminum curtain wall
frames. AGA purchased the IGUs from their manufacturer,
Viracon. Viracon purchased the PIB used to manufacture the
IGUs from Quanex. Viracon shipped the IGUs to Midwest, and
Midwest fabricated the individual aluminum curtain wall units
to be installed on the project by AGA. (Id.
Action was filed on June 9, 2015. It alleged that the IGUs
used to create the curtain walls for the project developed a
film and discoloration due to use of incompatible materials.
CDC sought to hold the defendants in the SF Action liable for
the cost of replacing and repairing 6, 400 IGUs.
(Id. ¶¶ 25, 33-38.) Trial of the action
commenced March 14, 2017. (Id. ¶ 40.) After
bouts of unsuccessful mediation, on April 24, 2017, a
settlement of the underlying action was reached.
(Id. ¶¶ 88, 97, 102.)
instant insurance action was brought by AGA and Webcor
against defendants National Union Fire Insurance
(“National”), Old Republic, Liberty Insurance
Underwriters Inc., and Zurich American
Insurance. Plaintiffs filed their first amended
complaint on June 12, 2017, and a second amended complaint on
October 10, 2017. (Dkt. Nos. 38, 159.) Old Republic is
alleged to be the insurer of AGA, and Webcor is alleged to be
an additional insured on the policies. (See Exh. A.
federal action, Old Republic filed a third-party complaint
against Acuity and Motorists Mutual Insurance Company on July
21, 2017. (Dkt. No. 69.) Old Republic alleges that it paid
out monies to provide a defense for AGA and Webcor in the SF
Action, and incurred other costs of defense. Old Republic
alleges that the policy issued to non-party Midwest, the
material supplier, by Acuity required that Acuity defend
Webcor and AGA as well. Old Republic seeks contribution for
these defense costs from Acuity.
Rule 12(b)(2), a case may be dismissed if the Court lacks
personal jurisdiction over the defendant. Plaintiff bears the
burden of demonstrating that jurisdiction is appropriate.
Federal courts ordinarily follow state law in determining the
bounds of their jurisdiction over persons, looking to the
state's long arm statute regarding service of summons.
See Fed. Rule Civ. Proc. 4(k)(1)(A) (service of
process effective to establish personal jurisdiction over
defendant subject to jurisdiction in the state court where
the district is located); Daimler AG v. Bauman, 134
S.Ct. 746, 753 (2014) (same). California's long-arm
statute, in turn, permits exercise of personal jurisdiction
to the fullest extent permitted by federal due process.
Id.; see also Williams v. Yamaha Motor Co.,
851 F.3d 1015, 1020 (9th Cir. 2017). The party filing the
complaint bears the burden to establish jurisdiction.
Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir.
2008); see also Schwarzenegger v. Fred Martin Motor
Co., 374 F.3d 797, 800 (9th Cir. 2004).
Republic has failed to establish a basis for personal
jurisdiction over Acuity in this forum. For purposes of
federal due process, two types of personal jurisdiction
exist: general jurisdiction (sometimes called
“all-purpose”) and specific jurisdiction
(sometimes called “case-linked”).
Bristol-Myers Squibb Co. v. Superior Court of California,
San Francisco Cty., 137 S.Ct. 1773, 1779-81 (2017).
“A court with general jurisdiction may hear
any claim against that defendant, even if all the
incidents underlying the claim occurred in a different
State.” Id. A court with only specific
jurisdiction over a defendant is limited to hearing claims
deriving from the facts that establish jurisdiction in the
jurisdiction has not been established over Acuity. In order
to establish general jurisdiction over Acuity in California,
Old Republic must show that Acuity has contacts that are
“so ‘continuous and systematic' as to render
[it] essentially at home in” California. Williams
v. Yamaha Motor Co., 851 F.3d 1015, 1020 (9th Cir. 2017)
(citing Goodyear Dunlop Tires Operations, S.A. v.
Brown, 564 U.S. 915, 919 (2011)). Acuity is a Wisconsin
insurance company with its principal place of business in
Sheboygan, Wisconsin. It conducts no business in California,
is not licensed to do business in California, does not sell
insurance in California, and has no brokers or agents based
in California. ...