Damon Humphries v. Usdc-Azp

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 12, 2019
• Docket: 18-71332
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 12 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: DAMON P. HUMPHRIES, No. 18-71332 guardian and conservator for Angela D. Humphries, D.C. No. 2:17-cv-01606-JJT ______________________________

DAMON P. HUMPHRIES, guardian and MEMORANDUM* conservator for Angela D. Humphries,

Petitioner,

v.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA, PHOENIX,

Respondent,

ALLSTATE INSURANCE COMPANY, a foreign corporation; et al.,

Real Parties in Interest.

Appeal from the United States District Court for the District of Arizona John Joseph Tuchi, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Argued and Submitted March 4, 2019 Phoenix, Arizona

Before: CLIFTON, IKUTA, and FRIEDLAND, Circuit Judges.

Appellant Angela Humphries, through her guardian and conservator,

petitions this court for a writ of mandamus instructing the district court to ask the

District Court for the Eastern District of Michigan to retransfer her claims against

Allstate Insurance Company. We deny the petition.

We have held we have jurisdiction to issue such a writ in “extraordinary

circumstances involving a grave miscarriage of justice.” NBS Imaging Sys., Inc. v.

U.S. Dist. Court, 841 F.2d 297, 298 (9th Cir. 1988). We are not convinced this

case presents such circumstances. The five Bauman factors guide our decision.

See Bauman v. U.S. Dist. Court, 557 F.2d 650, 654-55 (9th Cir. 1977).

First, although Humphries is unable to appeal directly the Arizona district

court’s transfer order, appellate review is not completely precluded. She could

move in the Michigan district court to retransfer the case and, should that motion

fail, ultimately receive the desired relief by appealing its denial to the Sixth Circuit

after final judgment. See Posnanski v. Gibney, 421 F.3d 977, 980-81 (9th Cir.

2005).

2 Second, the prejudice Humphries alleges—risk of an unnecessary trial—is

generally insufficient to warrant mandamus relief. Wash. Pub. Utils. Grp. v. U.S.

Dist. Court, 843 F.2d 319, 325 (9th Cir. 1987). This case presents few, if any, of

the extraordinary circumstances we held justified issuing the writ in Varsic v. U.S.

District Court, 607 F.2d 245 251-52 (9th Cir. 1979).

Third, under this “highly deferential standard of review,” we conclude the

district court’s ruling that it lacked personal jurisdiction over Allstate was not

clearly erroneous. In re Swift Transp. Co., 830 F.3d 913, 916-17 (9th Cir. 2016)

(“It is well established that ‘[t]he absence of controlling precedent weighs strongly

against a finding of clear error. If ‘no prior Ninth Circuit authority prohibited the

course taken by the district court, its ruling is not clearly erroneous.” (citations

omitted)).

Fourth, because there was no clear violation of controlling precedent, the

district court’s order was not an oft-repeated error. See id. at 917.

Fifth, this petition does not present a “‘novel and important question’ that

‘may repeatedly evade review.’” In re United States, 884 F.3d 830, 837 (9th Cir.

2018) (quoting Perry v. Schwarzenegger, 591 F.3d 1147, 1156 (9th Cir. 2010)).

While we and the Supreme Court will likely need to address the issue this petition

raises, there is no indication it will repeatedly evade review; a litigant may raise it

3 on direct appeal following a dismissal for lack of personal jurisdiction, for

instance.

Therefore, having weighed the Bauman factors, we conclude this petition

does not warrant the extraordinary use of our mandamus powers.1

PETITION DENIED.

1 Because we find the district court fully credited Humphries’s proffered evidence, we reject her contention that it disregarded evidence of Allstate’s connections to Arizona. 4