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Nick Spagnolo v. Nadic Network Certified Dentists

December 1, 2011

NICK SPAGNOLO,
PLAINTIFF,
v.
NADIC NETWORK CERTIFIED DENTISTS, DR. ADAM LOUSIGNONT, DR. GREGORY MORITZ, DR. JAY,
DEFENDANTS.



The opinion of the court was delivered by: J. Michael Seabright United States District Judge

ORDER

(1) ADOPTING FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT,

(2) GRANTING DEFENDANT LOUSIGNONT'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION,

(3) DENYING PLAINTIFF'S MOTION FOR TRANSFER OF VENUE, AND

(4) DENYING OTHER MOTIONS AS MOOT

I. INTRODUCTION

Plaintiff Nick Spagnolo ("Plaintiff"), proceeding pro se, filed this malpractice action in this court based on diversity of citizenship against Defendants Nadic Network Certified Dentists ("Nadic"),*fn1 Dr. Adam Lousignont ("Lousignont"), Dr. Gregory Moritz ("Moritz"), and Dr. Jay ("Jay") (collectively "Defendants"), alleging defective dental work performed in Las Vegas, Nevada.

Several matters are before the court. After service of the Amended Complaint was attempted, Plaintiff filed a Motion for Entry of Default Judgment, which U.S. Magistrate Judge Richard L. Puglisi recommended be denied in a Findings and Recommendation of September 21, 2011 ("Findings and Recommendation"). Doc. No. 39. Meanwhile, Lousignont filed a Motion to Dismiss for Lack of Personal Jurisdiction. Doc. No. 18. Plaintiff responded to that Motion, in part, by filing a Motion to Transfer Venue to the District of Nevada. Doc. No. 40. Plaintiff also filed Motions seeking to withdraw or strike the jury demand from his Amended Complaint. Doc. Nos. 35, 37.

Based on the following, the court (1) ADOPTS the Findings and Recommendation to Deny Plaintiff's Motion for Entry of Default, (2) GRANTS Lousignont's Motion to Dismiss for Lack of Personal Jurisdiction without prejudice, (3) DENIES Plaintiff's Motion to Transfer Venue, and (4) DENIES the Motions seeking to withdraw or strike jury demand without prejudice as moot.*fn2

II. BACKGROUND

Construing Plaintiff's Amended Complaint liberally, Plaintiff seeks damages for negligence and/or breach of contract for "failing to refund monies, as promised in writing, previously paid for a defective bridge." Doc. No. 6, Am. Compl. ¶ 2. Plaintiff seeks damages for "pain management, visits to dentists for continued treatment, the full cost for both immediate and permanent repairs, and any possible balance for 200 days of pain." Id. Although the allegations are not clear, Plaintiff alleges that some or all Defendants were involved in "the creation of a defective bridge, cast impression three to six months premature, four damaged teeth, and refused to treat pain." Id. ¶ 3. Plaintiff describes the basis of his action, in part, as follows:

The bridge purchased does not fit properly, it is crooked and does not meet at the gum line. Four teeth are permanently damaged and must be repaired to eliminate pain. Procedural mistakes include making cast impressions for a permanent bridge only one half hour after pulling two teeth. Cutting to the point nearing total destruction four teeth; which was after the act was performed, described by the attending dentist as "prepped."

Id. at 4, ¶ 1-b.

All Defendants reside in Nevada. Id. ¶ 2. All the dental work was performed in Nevada. Doc. No. 6-1, Am. Compl. Ex. 2; Doc. No. 26, Pl.'s Opp'n at 1. No Defendant is alleged to have an office in Hawaii or otherwise to have transacted business in Hawaii. When the Amended Complaint was filed Plaintiff alleged that he "resides" in Hawaii, although it is unclear whether he lived in Hawaii when the dental work occurred in October 2010, as the record indicates he may have been living in Nevada or Pennsylvania at that time. See Doc. Nos. 46-1 to 46-3. In any event, the only link to Hawaii appears to be Plaintiff's residence. (And Plaintiff has since moved to Las Vegas, Nevada. Doc. No. 49, Pl.'s Notice of Change of Address.)

Plaintiff filed his Amended Complaint on June 13, 2011. Doc. No. 6. On August 17, 2011, he filed a Motion for Default Judgment (without first having obtained entry of default). Doc. No. 22. Lousignont filed his Motion to Dismiss for Lack of Personal Jurisdiction that same day. Doc. No. 18. Plaintiff filed his Opposition to the Motion to Dismiss on August 29, 2011, Doc. No. 26, and Lousignont filed his Reply on September 29, 2011. Doc. No. 46.

Meanwhile, on September 21, 2011, Magistrate Judge Puglisi issued his Findings and Recommendation to Deny Plaintiff's Motion for Default Judgment. Doc. No. 39. Plaintiff filed Objections to the Findings and Recommendation on September 27, 2011. Doc. No. 42. He also filed a Motion to Transfer Venue on September 23, 2011. Doc. No. 40.*fn3

A hearing was held on these various Motions on October 24, 2011. At the hearing, the court issued an Order to Show Cause why the entire action should not be dismissed for lack of personal jurisdiction. Responses to the Order to Show Cause were filed on November 14, 2011 and November 22, 2011. Doc. Nos. 54 & 57.

III. STANDARDS OF REVIEW

A. Objections to Findings and Recommendation

When a party objects to a magistrate judge's findings or recommendations, the district court must review de novo those portions to which the objections are made and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673 (1980); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) ("[T]he district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise."). Under a de novo standard, this court reviews "the matter anew, the same as if it had not been heard before, and as if no decision previously had been rendered." Freeman v. DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006); United States v. Silverman, 861 F.2d 571, 576 (9th Cir. 1988). The district court need not hold a de novo hearing; ...


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