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28 * This matter was determined to be suitable for decision

without oral argument. L.R. 78-230(h).

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

SHARON HOPE, ) NO. CIV-S 04-2223 GEB (CMK)

Plaintiff, )

) ORDER*

)

v. )

)

)

) 

OTIS ELEVATOR COMPANY, OHANA )

HOTELS-RESORTS, OUTRIGGER )

HOTELS-RESORTS, )

Defendants. )

)

Defendant Outrigger Enterprises, Inc., dba Ohana Hotels and

Resorts and Outrigger Hotels and Resorts (collectively “Outrigger”),

move for dismissal for lack of personal jurisdiction. Alternatively,

Outrigger moves for dismissal for defective service of process. 

Outrigger also moves, in the alternative, for dismissal or transfer of

this action because this District is an improper venue, or for

transfer of the action to Hawaii for convenience of the parties and

witnesses.

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1 Plaintiff does not argue in her opposition that

Outrigger is subject to general jurisdiction in California. 

(Pl.’s Opp. Mem. at 4.)

2

Plaintiff asserts a tort claim based on personal injuries

she allegedly sustained when an elevator she used at Outrigger’s hotel

in Hawaii malfunctioned. For the reasons explained below, Outrigger’s

motion is denied.

PERSONAL JURISDICTION

Since California’s long-arm statute confers jurisdiction to

the maximum extent permitted by due process, Cal. Civ. Proc. Code

§ 410.10, Outrigger is subject to the specific personal jurisdiction

of California if (1) it purposefully availed itself of the benefits

and protections of California, (2) its contacts arise out of or relate

to Plaintiff’s underlying cause of action, and (3) exercise of

personal jurisdiction is reasonable. Hedrick v. Daiko Shoji Co.,

Ltd., Osaka, 715 F.2d 1355, 1358 (9th Cir. 1983); See Ochoa v. J.B.

Martin & Sons Farms, Inc., 287 F.3d 1182, 1188 n.2 (9th Cir. 2002)

(holding that “[j]urisdiction may be established with a lesser showing

of minimum contacts if considerations of reasonableness dictate.”).1

Plaintiff bears the burden of making a prima facie showing that

personal jurisdiction is proper. Harris Rutsky & Co. Ins. Servs.,

Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1129 (9th Cir. 2003).

1. Purposeful Availment

To establish Outrigger’s contact with California, Plaintiff

proffers the uncontested allegations in her Complaint that Outrigger

“advertise[s] and [has] significant economic contact in California.” 

(Compl. ¶ 3.) Plaintiff also declares that she stayed at Outrigger’s

hotel because Outrigger was hosting a convention that she attended. 

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3

(Hope Decl. ¶ 3.) In addition, Plaintiff submits an authenticated

copy of portions of Outrigger’s web site inviting California residents

to contact an “Outrigger Specialist” located in several cities

throughout California. (Altemus Decl. ¶ 1; Exh. B-1, B-2, B-3, and B4.)

When determining whether Plaintiff has established a prima

facie case of personal jurisdiction, “[u]ncontroverted allegations in

the plaintiff’s complaint must be taken as true,” and reasonable

inferences that can be drawn from the evidence must be drawn in

Plaintiff’s favor. WNS, Inc. v. Farron, 884 F.2d 200, 203 (5th Cir.

1989); Altmann v. Republic of Austria, 317 F.3d 954, 962 (9th Cir.

2002). Plaintiff’s Complaint, her declaration, and the exhibits

attached to her attorney’s declaration indicate that Outrigger targets

its advertising to California residents and is associated with several

California travel agents. It is reasonable to infer that this

activity also occurred at the time the alleged injury occurred,

especially in light of Plaintiff’s declaration that she stayed at

Outrigger’s hotel in November 2002 to attend a convention hosted

there, and that she arranged her trip through a travel agent in

Sonora, California. (Hope Decl. ¶ 3.) Outrigger’s inferred

association with several travel agents in California and the targeted

advertising on its web site constitute purposeful availment for

purposes of personal jurisdiction. See Decker Coal Co. v.

Commonwealth Edison Co., 805 F.2d 834, 840 (9th Cir. 1986) (holding

that “if the defendant directly solicits business in the forum state,

the resulting transactions will probably constitute the deliberate

transaction of business invoking the benefits of the forum state’s

laws.”).

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4

2. Relation between Contacts and Plaintiff’s Tort Claim

Outrigger argues that Plaintiff has not shown that Outrigger

had contacts with California that gave rise or relate to Plaintiff’s

tort claim. According to Outrigger, Plaintiff merely establishes that

Outrigger currently advertises to residents in California and

currently affiliates with California travel agencies. (Outrigger

Reply Mem. at 2.) However, Outrigger does not deny that it conducted

targeted advertising in California or that it associated with

California travel agents before Plaintiff’s alleged injury.

A “but for” test is used when determining “whether a

particular claim arises out of forum-related activities.” Ballard v.

Savage, 65 F.3d 1495, 1500 (9th Cir. 1995). The question, therefore,

is this: but for Outrigger’s advertising and associations with travel

agents, would Plaintiff have stayed at Outrigger’s hotel in Hawaii? 

Cf. Cubbage v. Merchent, 744 F.2d 665, 670 (9th Cir. 1990) (holding

that plaintiff’s malpractice claim arose out of defendant’s

solicitation of patients from California).

Plaintiff declares that she arranged for her stay at

Outrigger’s hotel to attend a convention held there through an

unidentified travel agent in Sonora, California, and Outrigger’s

current web site indicates that “Outrigger Specialists” are located in

Sonora. (Hope Decl. ¶ 3; Altemus Decl. Exh. B-1.) It is reasonable

to infer from Plaintiff’s evidence that Outrigger’s advertising and

association with California travel agents were “but for” causes of

Plaintiff’s stay at Outrigger’s hotel and, consequently, her use of

///

///

///

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2 Plaintiff’s reliance on Farmers Ins. Exch. v. Portage

La Prarie Mut. Ins. Co., 907 F.2d 911, 913 (9th Cir. 1990), is

inapposite. Plaintiff’s citation to Outrigger’s current

advertising campaign and business associations considered in

light of Plaintiff having arranged to stay at Outrigger’s hotel

through a California travel agent raises a reasonable inference

that Outrigger maintained contacts with California before

Plaintiff’s injuries.

5

the elevator at Outrigger’s hotel.2 Thus, Plaintiff has made a prima

facie showing that Outrigger is subject to specific jurisdiction in

California for Plaintiff’s tort claim.

3. Reasonableness

Outrigger also argues that the exercise of jurisdiction over

it is unreasonable since it will not promote fair play and substantial

justice. To prevail on this argument, Outrigger must present a

compelling case that other considerations render exercise of

jurisdiction unreasonable. Burger King Corp. v. Rudzewicz, 471 U.S.

462, 477 (1985); accord Sinatra v. Nat’l Enquirer, Inc., 854 F.2d

1191, 1198 (9th Cir. 1988) (holding that defendant bears the burden of

demonstrating that the exercise of jurisdiction is unreasonable). 

Seven factors must be balanced in determining whether the exercise of

jurisdiction is reasonable: “(1) the extent of the defendant’s

purposeful interjection into the forum state’s affairs; (2) the burden

on the defendant; (3) conflicts of law between the forum and

defendant’s home jurisdiction; (4) the forum’s interest in

adjudicating the dispute; (5) the most efficient judicial resolution

of the dispute; (6) the plaintiff’s interest in convenient and

effective relief; and (7) the existence of an alternative forum.” 

Roth v. Garcia Marquez, 942 F.2d 617, 623 (9th Cir. 1991).

///

///

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6

a. Purposeful Interjection

Outrigger’s contacts with California are significant enough

to cause the “purposeful injection” factor to weigh in favor of the

exercise of personal jurisdiction. Core-Vent Corp v. Nobel Indus. AB,

11 F.3d 1482, 1488 (9th Cir. 1993).

b. Defendant’s Burden

Outrigger argues that litigating in California presents a

significant burden on it because it will have to arrange for travel to

and from Hawaii to litigate this action in California. (Outrigger

Mem. at 7.) But in this “era of fax machines and discount air travel,

requiring [Outrigger] to litigate in [California] is not

constitutionally unreasonable.” Panavision Int’l L.P. v. Toeppen, 141

F.3d 1316, 1323 (9th Cir. 1998), cited in Pacific Fisheries Corp. v.

Power Transmission Prods., Inc., No. CIV 00-00298, 2000 WL 1670917, at

*9 (D. Haw. Oct. 17, 2000) (holding that it is reasonable to compel an

Oregon defendant with “few contacts” to litigate in Hawaii).

Furthermore, Outrigger’s litigation burden should be viewed in light

of the corresponding burden on Plaintiff. Brand v. Menlove Dodge, 796

F.2d 1070, 1075 (9th Cir. 1986). In light of Plaintiff’s assertion

that litigating in Hawaii would impose an undue burden on Plaintiff

because of California residents who are likely to testify at trial on

her behalf, this factor does not weigh in favor of either party.

c. Conflict of Laws

Since it has not been shown that Plaintiff’s tort claim

involves novel or complex questions of Hawaiian law, this factor does

not favor Outrigger.

///

///

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7

d. Forum’s State Interest

Plaintiff is a resident of California and California has a

“strong interest in providing a means of redress for its residents 

. . . .” Sinatra, 854 F.2d at 1200. However, California’s interest

is mitigated because the injury occurred in Hawaii. Therefore, this

factor has not been shown to favor either party.

e. Efficient Judicial Resolution

This factor focuses on the location of the witnesses and the

evidence. Ziegler v. Indian River County, 64 F.3d 470, 475-476 (9th

Cir. 1995). Outrigger declares that it identified seven witnesses to

the incident who were last known to reside in Hawaii. (Maunakea Decl.

¶ 3.b.) However, Outrigger does not indicate the import of these

witnesses on the issues involved in the instant case. In its reply

brief, Outrigger indicates that an investigation of the site will be

necessary to determine lighting, floor texture, width of the elevator,

speed of the elevator doors, and the elevator’s assembly. (Outrigger

Reply Mem. at 3.) However, these matters do not appear relevant as

Plaintiff alleges that she received personal injury when the elevator

suddenly dropped one foot. (Compl. ¶ 17.) Plaintiff also counters

that there are several percipient and expert witnesses in California

who will testify. (Hope Decl. ¶ 2.) Outrigger has not shown that

this factor favors its position.

f. Convenient and Effective Relief

Outrigger contends that it is more convenient to litigate in

Hawaii than in California. Plaintiff disagrees, arguing that

litigating in California is preferable to litigating in Hawaii because

she is domiciled in California. This factor has not been shown to

favor either party.

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8

g. Availability of Alternative Forum

It is unclear whether Hawaii is an alternative forum for

litigating this action. Although Outrigger makes a conclusory

allegation that Otis Elevator Company (“Otis”) is subject to personal

jurisdiction in Hawaii, Plaintiff expresses doubt about the

truthfulness of this assertion. This factor has not been shown to

favor either party.

On balance, Outrigger does not “present a compelling case”

that the exercise of personal jurisdiction over it in this District is

unreasonable. Roth, 942 F.2d at 625 (citing Burger King, 471 U.S. at

476). Therefore, Plaintiff’s prima facie showing of personal

jurisdiction is sufficient to withstand Outrigger’s dismissal motion

at this time. See Rano v. Sipa Press, Inc., 987 F.2d 580, 587 n.3

(9th Cir. 1993) (noting that plaintiffs ultimately bear the burden of

establishing the propriety of personal jurisdiction by a preponderance

of the evidence at trial).

SERVICE OF PROCESS

In its opening brief, Outrigger “contest[s] the sufficiency

of the service of process upon [it] by plaintiff in this action.” 

(Outrigger Mem. at 9.) Outrigger declares that at the time it noticed

this motion, “no documents available for viewing via the Court’s PACER

Program indicate[d] that plaintiff had properly served [Outrigger]

with plaintiff’s complaint and summons.” (Outrigger Mem. at 9);

(Keats Decl. ¶ 5); see Local Rule 4-210(b) (stating that “proof of

service shall be filed and served an all parties who have been served

. . . as soon as possible after service has been completed, and, in

any event, before any action based upon the service is requested or 

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3 Outrigger declares that its “corporate offices” are

located at 2375 Kuhio Avenue, Honolulu, Hawaii 96815. (Maunakea

Decl. ¶ 3.c.)

9

taken by this Court or is taken by a party in reliance on proper

service.”).

Plaintiff filed the proofs of service one day after

Outrigger filed the motion sub judice. The proofs of service indicate

that Warren Fereirra, whose title is Security Chief, was served at

2030 Kuhio Avenue, Honolulu, Hawaii 96815, on February 25, 2005, at

1:30 p.m.; and that service was effected pursuant to the California

Code of Civil Procedure.

In its reply brief, Outrigger argues that service of process

is “defective” because (1) Fereirra is neither a corporate officer of

Outrigger nor authorized to accept service for Outrigger, and (2)

Outrigger does not maintain its “corporate offices” at 2030 Kuhio

Avenue, Honolulu, Hawaii 96815. (Outrigger Reply Mem. at 4; Maunakea

Decl. ¶ 3.d-f.)3 Outrigger also argues that Plaintiff did not

properly effect service because “no evidence shows that plaintiff’s

summons and complaint [were] thereafter mailed to the address where

the documents were delivered.” (Outrigger Reply Mem. at 4.)

Service of process upon a domestic corporation must be

effected either (1) pursuant to the law of the state in which the

district court is located, (2) pursuant to the law of the state in

which service is effected, or (3) by delivering a copy of the summons

and of the complaint to an officer, a managing or general agent, or to

any other agent authorized by appointment or by law to receive service

of process. Fed. R. Civ. P. 4(h)(1). Plaintiff bears the burden of

establishing the validity of service. Hickory Travel Sys., Inc. v.

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28 4 Plaintiff states in her Complaint that Outrigger’s

corporate form was unknown. (Compl. ¶ 3.)

10

TUI AG, 213 F.R.D. 547, 551-552 (N.D. Cal. 2003). “The filing of a

proof of service creates a rebuttable presumption that the service was

proper.” Floveyor Int’l, Ltd. v. Super. Ct., 59 Cal. App. 4th 789,

795 (1997).

California law allows service to be effected on a business

organization of unknown form “by leaving a copy of the summons and

complaint during usual office hours with the person who is apparently

in charge of the office of that business organization, and by

thereafter mailing a copy of the summons and complaint by first-class

mail, postage prepaid, to the person to be served at the place where a

copy of the summons and complaint was left. Service of a summons in 

this manner is deemed complete on the 10th day after the mailing.” 

Cal. Civ. Proc. Code § 415.95(a).4

Outrigger also argues that Plaintiff’s service is

insufficient because Plaintiff failed to timely file a proof of

service. But this argument does not justify dismissal because

“[f]ailure to make proof of service does not affect the validity of

service.” Fed. R. Civ. P. 4(l); accord O’Brien v. R.J. O’Brien &

Assocs., Inc., 998 F.2d 1394, 1402 (7th Cir. 1993).

Therefore, Outrigger must rebut the presumption of valid

service. Floveyor Int’l, 59 Cal. App. 4th at 795. Outrigger’s

argument against Plaintiff’s proofs of service relies on drawing an

inference in Outrigger’s favor that Fereirra did not have apparent

authority to receive service on Outrigger’s behalf. While Outrigger

avers Fereirra is not a corporate officer of Outrigger, Outrigger does

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5 The legislative history of California Code of Civil

Procedure Section 415.95 indicates that service under this

section may be rendered at any branch of a defendant. See Senate

Judiciary Committee, Committee Analysis of AB 418, at 5 (June 25,

2003) (adding Cal. Civ. Proc. Code § 415.95(b) to allay concerns

of “large corporations” that Cal. Civ. Proc. Code § 415.95(a)

allows process servers to leave documents with any employee of

any branch).

11

not rebut Plaintiff’s showing that Fereirra was “apparently in charge”

of Outrigger’s office on the date and time of service. 

Outrigger also declares that its “corporate offices” are not

located at 2030 Kuhio Avenue, Honolulu, Hawaii, where service was

made. (Maunakea Decl. ¶ 3.d.) However, Outrigger does not declare

that it does not have an office at 2030 Kuhio Avenue.5

Outrigger also argues that the service was defective because

Plaintiff’s proofs of service failed to state that she complied with

the mailing requirement prescribed by Section 415.95(a) of the

California Code of Civil Procedure. Neither Federal Rule of Civil

Procedure 4(l) nor California Code of Civil Procedure Section

417.10(a) requires that the proof of service recite this requisite

first-class mailing of the summons and complaint. For the stated

reasons, Outrigger failed to rebut the presumption that service was

valid.

VENUE

Outrigger next argues that venue is improper in this

District. Plaintiff has the burden of proving that venue is proper in

the district in which the suit was initiated. Airola v. King, 505

F. Supp. 30, 31 (D. Ariz. 1980). Venue is proper in this District if

both Defendants “reside” in California, and at least one Defendant

“resides” in this District. 28 U.S.C. § 1391(a)(1). For purposes of

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venue, a corporation is a resident of any judicial district in which

it is subject to personal jurisdiction. 28 U.S.C. § 1391(c).

Since Plaintiff has established a prima facie case that

Outrigger is subject to personal jurisdiction in California and this

District, the remaining question is whether Defendant Otis Elevator

Company (“Otis”) is subject to personal jurisdiction in California. 

The uncontroverted allegations in the Complaint allege that Otis “does

business in California and has significant economic contact with

California.” This allegation justifies exercise of personal

jurisdiction over Otis in this District. Consequently, Otis is a

resident of California for purposes of venue and venue is proper under

28 U.S.C. § 1391(a)(1).

INCONVENIENT FORUM

Outrigger requests that venue be transferred to Hawaii

pursuant to 28 U.S.C. § 1404(a). To prevail on this request,

Outrigger must make “a strong showing of inconvenience to warrant

upsetting the plaintiff’s choice of forum.” Decker, 805 F.2d at 843. 

The convenience of witnesses is the most important factor in

determining whether to transfer because of the inconvenience of the

forum. Los Angeles Mem’l Coliseum Comm’n v. Nat’l Football League, 89

F.R.D. 497, 501 (C.D. Cal. 1981). Outrigger must demonstrate through

affidavits that it is more convenient for witnesses to attend trial in

Hawaii. Cochran v. NYP Holding, Inc., 58 F. Supp. 2d 1113, 1119 (C.D.

Cal. 1998) (“Rather than relying on ‘vague generalizations’ of

inconvenience, the moving party must demonstrate, through affidavits

or declarations containing admissible evidence, who the key witnesses

will be and what their testimony will generally include.”).

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Outrigger has not met this burden. Therefore, Outrigger’s

motion to transfer for inconvenient forum is denied.

For the stated reasons, Outrigger’s motion is denied.

IT IS SO ORDERED.

Dated: June 29, 2005

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

United States District Judge

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