Personnel Staffing Group, LLC v. Protective Insurance Company

Opinion

FILED NOT FOR PUBLICATION APR 15 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PERSONNEL STAFFING GROUP, LLC, No. 20-55503 DBA MVP Staffing, a Florida limited liability company, D.C. No. 2:19-cv-06728-ODW-JEM Plaintiff-Appellant,

v. MEMORANDUM*

PROTECTIVE INSURANCE COMPANY, an Indiana corporation,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Otis D. Wright II, District Judge, Presiding

Submitted April 6, 2021** Pasadena, California

Before: W. FLETCHER, WATFORD, and HURWITZ, Circuit Judges.

Personal Staffing Group (“PSG”) sued Protective Insurance Co.

(“Protective”) in Los Angeles Superior Court for breach of contract. Protective

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). removed the action to federal court and then filed a motion to dismiss on forum

non conveniens grounds. The district court concluded that Indiana was a superior

forum, granted the motion, and dismissed the action without prejudice. We

reverse.

1. PSG did not forfeit its argument that forum non conveniens dismissal is

unavailable if transfer to a federal court is possible. If the issue presented is

“purely one of law and the opposing party will suffer no prejudice as a result of the

failure to raise the issue in the trial court,” we may treat the argument as not

forfeited. Kaass Law v. Wells Fargo Bank, N.A., 799 F.3d 1290, 1293 (9th Cir.

2015) (quotation marks and citation omitted). We do so here because the

availability of forum non conveniens is a pure question of law, and Protective is not

prejudiced by PSG’s failure to raise the issue before the district court.

2. Forum non conveniens dismissal is unavailable if transfer to another

federal district court is possible under 28 U.S.C. § 1404(a). See Norwood v.

Kirkpatrick, 349 U.S. 29, 32 (1955) (transfer statute meant to avoid harsh result of

dismissal); Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Co., 549 U.S. 422,

430 (2007) (“For the federal court system, Congress has codified the doctrine and

has provided for transfer, rather than dismissal, when a sister federal court is the

2 more convenient place for trial of the action.”); Charles Alan Wright & Arthur R.

Miller, 15 Fed. Prac. & Proc. § 3841 (4th ed. Oct. 2020 update).

Transfer to federal district court in Indiana was possible, as the contract does

not obligate the parties to litigate this action in state court. The contract requires

only that the parties submit to personal jurisdiction in Indiana; it does not require

that litigation be conducted in a particular forum. See Hunt Wesson Foods, Inc. v.

Supreme Oil Co., 817 F.2d 75, 77–78 (9th Cir. 1987); Docksider, Ltd. v. Sea Tech.,

Ltd., 875 F.2d 762, 763–64 (9th Cir. 1989) (mandatory forum selection clause

requires the parties to bring an action in a specific forum, to the exclusion of other

forums).

Because transfer to Indiana federal court was possible, the district court

erred by dismissing the action. Accordingly, we reverse and remand to allow a

section 1404(a) transfer motion to be made.

REVERSED and REMANDED.