United States District Court, D. Utah, Central Division
MEMORANDUM DECISION & ORDER GRANTING RSA-SUN
INSURANCE'S MOTION TO DISMISS
WADDOUPS, United States District Judge
Clark Waddoups Plaintiff Delta Stone Products (“Delta
Stone”) seeks recovery for losses stemming from damage
to a stone cutting machine it had purchased, occurring while
the machine was in transit from Italy to Utah. (See
generally Dkt. No. 2.) Among others, Delta Stone has
sued RSA-Sun Insurance Office, Ltd. (“RSA”), an
Italian insurance company. RSA issued a “Cargo
Insurance Policy” to Embassy Cargo S.P.A., a
broker/shipper, to insure the cargo during its transit.
(See Dkt. Nos. 70-1 & 75-1, p. 19 (the policy).)
moves the court to dismiss the case against it for lack of
personal jurisdiction and improper service. (Dkt. No. 61.)
RSA also seeks to enforce a forum selection clause in the
insurance contract indicating that Italy is the proper venue
for the dispute. (Id.) On March 15, 2017, the court
heard oral argument from RSA and Delta Stone, and requested
supplemental briefing on the question of the court's
personal jurisdiction over RSA. (See Dkt. No. 78.)
considering the parties' briefing and supplemental
materials, oral argument, and relevant case law, the court
GRANTS RSA's Motion to Dismiss for lack
of personal jurisdiction, (Dkt. No. 61). Though RSA's
explicit inclusion of Utah in the insurance policy's
territory of coverage constitutes some showing of minimum
contacts with this forum, the court concludes that exercising
personal jurisdiction over RSA would offend traditional
notions of fair play and substantial justice. Because the
court lacks personal jurisdiction over RSA, the court does
not reach the issues of improper service or the forum
Stone, a Utah corporation based in Heber City, Utah,
purchased a stone cutting machine from Simec SPA, an Italian
company, for use in cutting stone slabs for a time sensitive
government project. (Compl. ¶¶ 1-2, 16-17, Dkt. No.
2.) Embassy Cargo S.P.A., an Italian company with its
principal place of business in New York,  acted as a
broker/shipper for the machine from Italy to Heber City and
obtained the cargo insurance from RSA. (Id. ¶
7.) The cargo was located in Italy at the time Embassy Cargo
and RSA entered into the insurance contract, and Embassy
Cargo paid the insurance premium on the policy in Italy.
(See Genesio Decl. ¶ 9-10, Ex. A, Dkt. No.
“Certificate” to the insurance policy is written
in Italian with translations below the Italian in English.
(See Dkt. No. 70-1, p. 2-3 & 75-1, p. 19.) The
Certificate shows that RSA contracted with Embassy Cargo on
November 26, 2014 to provide cargo insurance on the stone
cutting machine “for the voyage from Castello di Godego
(TV) to Heber City UT, USA.” (Id.) In
addition, the Certificate states: “This contract is
subject to Italian Law ad [sic] practice and in case of
dispute the place of jurisdiction shall be Genoa.”
(Id.) The contract also contains a number of
“Clauses” and attachments written in English.
(See Dkt. No. 70-1.) In the “Institute Cargo
Clauses, ” the “Risks Covered” provision
states: “This insurance covers all risks of loss of or
damage to the subject-matter insured, ” with enumerated
exceptions not relevant to this motion. (Id. at 8.)
The “Institute Cargo Clauses” concludes with a
“Law and Practice” provision, which states:
“This insurance is subject to English law and
practice.” (Id. at 10.) The same language
regarding English law also appears at the end of the
“Institute War Clauses” and “Institute
Strikes Clauses.” (Id. at 13, 17.)
Stone tendered its claim for payment of the damages to the
machine to RSA. (See Compl. ¶ 51.) When RSA
received notice of the alleged damage to the machine it hired
VeriClaim, an independent surveying company, to appoint a
surveyor to inspect the damage. (See Genesio Decl.
with RSA's offer to resolve the claim, Delta Stone now
sues RSA for breach of contract as a third-party beneficiary
of the cargo insurance contract between RSA and Embassy
Cargo. (See Compl. ¶¶ 48-56.) Delta Stone
alleges this court has jurisdiction pursuant to the diversity
statute, 28 U.S.C. § 1332. (Id. ¶
Delta Stone alleges that RSA has “denied complete
coverage for the subject loss by claiming that the subject
insurance only covers the direct damage to the Stone Cutting
Machine (i.e., the repair costs), and denies that such
insurance covers the foreseeable consequential damages
resulting from such damage.” (Id. ¶ 52.)
Thus, Delta Stone alleges RSA has breached the insurance
contract by “its refusal to accept Plaintiffs'
complete tender of claim” and seeks as damages
“the actual repair and delay costs in an amount not
less than $430, 611, together with interest, costs and
attorneys' fees.” (Id. ¶¶ 53,
56.) Delta Stone seeks this amount of damages in its claims
against the other defendants, which include shippers and
forwarders along the machine's path of transportation.
(See Id. ¶¶ 35-36, 42, 46-47.)
motion, RSA does not dispute that the insurance policy covers
Delta Stone's claim for repair costs, but denies that the
policy covers any delay damages. (Mot. to Dismiss at 3, Dkt.
reasons that follow, the court holds that it lacks personal
jurisdiction over RSA.
a court without jurisdiction over the parties cannot render a
valid judgment, [the court] must address Defendants'[s]
personal jurisdiction argument before reaching the merits of
the case.” OMI Holdings, Inc. v. Royal Ins. Co. of
Canada, 149 F.3d 1086, 1090 (10th Cir. 1998).
bear the burden of establishing personal jurisdiction.”
Dudnikov v. Chalk & Vermilion Fine Arts, Inc.,
514 F.3d 1063, 1069 (10th Cir. 2008). To meet this burden on
a pre-trial motion to dismiss, the plaintiff need only make a
prima facie showing of personal jurisdiction. Id. at
1070. “The plaintiff may make this prima facie showing
by demonstrating, via affidavit or other written materials,
facts that if true would support jurisdiction over the
defendant.” OMI Holdings, 149 F.3d at 1091.
the parties base their personal jurisdiction arguments on the
pleadings, declarations, and other written materials, Delta
Stone need only make a prima facie showing of personal
jurisdiction over RSA. Dudnikov, 514 F.3d at 1070.
The court takes as true all “plausible, non-conclusory,
and non-speculative” facts and resolves factual
disputes in favor of Delta Stone. Id. (citation
obtain personal jurisdiction over a nonresident defendant in
a diversity action, a plaintiff must show that jurisdiction
is legitimate under the laws of the forum state and that the
exercise of jurisdiction does not offend the due process
clause of the Fourteenth Amendment.” Pro Axess,
Inc. v. Orlux Distribution, Inc., 428 F.3d 1270, 1276
(10th Cir. 2005) (quoting Far West Capital, Inc. v.
Towne, 46 F.3d 1071, 1074 (10th Cir. 1995)). Because
Utah's long-arm statute confers the maximum jurisdiction
allowed by due process of law, Utah Code Ann. §
78B-3-201(3), the inquiry under Utah law “collapses . .
. into the more general ‘due process' standard for
jurisdiction.” Rusakiewicz v. Lowe, 556 F.3d
1095, 1100 (10th Cir. 2009).
Stone concedes that the facts of this case do not implicate
the court's general personal jurisdiction. (See
Opp'n 7, Dkt. No. 70.) Thus, the court turns to the issue
of its specific personal jurisdiction over RSA.
process inquiry for specific personal jurisdiction has two
steps. First, the court must “ask whether the
nonresident defendant has ‘minimum contacts' with
the forum state such ‘that he should reasonably
anticipate being haled into court there.'” TH
Agric. & Nutrition, LLC v. Ace European Grp. Ltd.,
488 F.3d 1282, 1287 (10th Cir. 2007) (quoting OMI
Holdings, 149 F.3d at 1091); accord
Rusakiewicz, 556 F.3d at 1100 (“[The]
jurisdictional inquiry in Utah diversity cases is reduced to
a single question: did the defendants have sufficient
‘minimum contacts' with the state of Utah to
establish personal jurisdiction over them?”). Next,
even where a defendant had “minimum contacts”
with a forum, the court must consider “whether the
exercise of personal jurisdiction over the defendant offends
traditional notions of fair play and substantial
justice.” Rusakiewicz, 556 F.3d at 1102
(quoting OMI Holdings, 149 F.3d at
analysis is fact specific.” Employers Mut. Cas. Co.
v. Bartile Roofs, Inc., 618 F.3d 1153, 1160 (10th Cir.
2010) (citing TH Agric. & Nutrition, 488 F.3d at
defendant has minimum contacts with a forum where “the
defendant has purposefully directed his activities at
residents of the forum, and the litigation results from
alleged injuries that arise out of or relate to those
activities.” Burger King Corp. v. Rudzewicz,
471 U.S. 462, 472 (1985) (citations and internal quotation
marks omitted). In analyzing the first prong of the
inquiry--a defendant's purposefully directed activities--
“it is essential in each case that there be some act by
which the defendant purposefully avails itself of the
privilege of conducting activities within the forum State,
thus invoking the benefits and protections of its
laws.” Id. at 475 (quoting Hanson v.
Denckla, 357 U.S. 235, 253 (1958)); see Racher v.
Lusk, 674 F. App'x 787, 791 (10th Cir. 2016)
(unpublished) (noting that specific jurisdiction “is
premised on the defendant obtaining a benefit in exchange for
purposeful conduct directed at the forum state”). This
inquiry ensures that “an out-of-state defendant is not
bound to appear to account for merely ‘random,
fortuitous, or attenuated contacts' with the forum
state.” Dudnikov, 514 F.3d at 1071 (quoting
Burger King, 471 U.S. at 475).