United States District Court, D. Nevada
ORDER GRANTING IN PART MOTION TO DISMISS UNDER FRCP
12(B)(3) [ECF NO. 9]
JENNIFER A. DORSEY J.
Ortiz sues Reliance Standard Life Insurance Company for
wrongful denial of disability benefits and attorney's
fees and costs under the Employee Retirement Income Security
Act of 1974 (ERISA), 29 U.S.C. §§
1001-1461. Reliance argues that venue in this
district is improper and moves to dismiss Ortiz's claims
or, alternatively, to transfer them to the U.S. District
Court for the Eastern District of Pennsylvania. I find that Ortiz
has not met his burden to show that venue is proper in this
district, and Reliance has not met its burden to show that
this case might have been brought in the Eastern District of
Pennsylvania. I therefore grant Reliance's motion in part
and dismiss Ortiz's claims without prejudice to their
refiling in a court of competent jurisdiction.
plaintiff, Ortiz bears the burden of showing that venue is
properly laid in the District of Nevada. ERISA's venue
provision broadly allows civil-enforcement actions like this
one to “be brought in the district where the plan is
administered, where the breach took place, or where a
defendant resides or may be found . . .
.” The parties argue about whether Reliance
may be found here. In the Ninth Circuit, a defendant is
“found” in a district for ERISA-venue purposes if
“personal jurisdiction is properly asserted over
the” defendant there. So, the defendant's contacts
with the forum must be “sufficient to satisfy the
‘minimum contacts' test for personal
jurisdiction” as stated in International Shoe Co.
v. Washington, 326 U.S. 310, 316 (1945). So, to survive
this dismissal motion, Ortiz must show that Reliance is
subject to either general or specific jurisdiction in
not entirely clear, Ortiz appears to argue that general
jurisdiction exists,  so he must show that Reliance's
activities within Nevada are “substantial” or
“continuous and systematic, ” such that
“there is a sufficient relationship between [Reliance]
and [Nevada] to support jurisdiction even if the cause of
action is unrelated to [Reliance's] forum activities . .
. .”In deciding a motion to dismiss for
improper venue, I need not accept the pleadings as true, and
I “may consider facts outside of the
provides little in the way of allegation or evidence to
support his contention that venue properly lies in this
district. The only facts that Ortiz alleges about venue are
that Reliance issued the disability-benefits policy that he
was insured under and that Reliance is “doing business
in the District of Nevada.” Reliance does not deny
that it sells insurance or that it does business in Nevada.
Reliance's attorney admits that Reliance is
“licensed to sell insurance here.” Oddly,
Reliance's motion and the accompanying declaration of its
trial attorney both discuss this activity as being a contact
that Reliance has with “California, ” not
Nevada. I assume these are typos because
Reliance's contacts with California are not relevant, and
Ortiz provided evidence that tends to show that Nevada's
Commissioner of Insurance is Reliance's agent for service
of process in this state. This would not be needed if
Reliance were not, in fact, registered to sell insurance in
Nevada. The bare fact that Reliance sells insurance in Nevada
is not sufficient, however, for me to determine that its
contacts with this state are “substantial” or
“continuous and systematic.” I therefore find
that Ortiz has not met his burden to show that Nevada is the
proper venue for his claims against Reliance.
moves in the alternative to transfer this case to the U.S.
District Court for the Eastern District of Pennsylvania. The
party moving to transfer to another venue must demonstrate
that the case could have been brought in the proposed
transferee district. None of the facts necessary for me to
determine if this case could have been brought in the Eastern
District of Pennsylvania have been established by any factual
allegation or competent evidence. I therefore find that
Reliance has not met its burden to show that this case could
have been brought in the Eastern District of Pennsylvania.
IT IS HEREBY ORDERED that Reliance Standard Life Insurance
Company's motion to dismiss or, alternatively, to
transfer venue [ECF No. 9] is GRANTED in
part: this case is DISMISSED
without prejudice. The motion is DENIED in
all other respects. The Clerk of Court is
directed to CLOSE THIS CASE.
 ECF No. 1.
 ECF No. 9.
Piedmont Label Co. v. Sun Garden
Packaging Co., 598 F.2d 491, 496 (9th Cir.