Andres Trucking Co. v. United Fire & Cas. Co.
Court of Appeals of Colorado, Division Seven
September 20, 2018, Decided
Court of Appeals No. 17CA1672

Reporter
2018 COA 144 *; 2018 Colo. App. LEXIS 1327 **
Andres Trucking Company, Plaintiff-Appellant, v. United Fire and Casualty Company, Defendant-Appellee.
Notice: THIS OPINION IS NOT THE FINAL VERSION AND SUBJECT TO REVISION UPON FINAL PUBLICATION
Prior History: [**1] Routt County District Court No. 16CV30055. Honorable Shelley A. Hill, Judge.
Disposition: JUDGMENT REVERSED, ORDERS AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS.

[*1] Plaintiff, Andres Trucking Company (Andres Trucking), appeals the judgment entered on its breach of contract and statutory bad faith claims in favor of defendant, United Fire and Casualty Company (United), after the district court determined that the completion of the appraisal process called for in the parties’ policy necessarily resolved those claims.
[*2] Among questions we answer is whether Andres Trucking’s participation in the contractual appraisal process resolved its claims against United and effectively ended the litigation.
[*3] We conclude that the appraisal process did not fully resolve Andres [**3] Trucking’s claims. The appraisal process determined the value of the insured property, but it did not determine United’s liability for breach of contract or statutory bad faith delay under sections 10-3-1115 and -1116, C.R.S. 2017. Accordingly, we affirm the order approving the appraisal value but reverse the judgment and remand for reinstatement of the complaint.
I. Background
[*4] Andres Trucking operates a dump truck in Steamboat Springs, Colorado. The truck was insured by United under a policy that included the following provision:
If you and we disagree on the amount of “loss,” either may demand an appraisal of the “loss.” In this event, each party will select a competent appraiser. The two appraisers will select a competent and impartial umpire. The appraisers will state separately the actual cash value and amount of the “loss.” If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be binding.
. . . .
If we submit to an appraisal, we will still retain our right to deny the claim.
[*5] In June 2015, while covered by the insurance policy, the truck caught fire. Both parties agreed the truck was a total loss but disagreed about the truck’s value.
[*6] After the [**4] parties’ discussions failed to lead to an agreement, Andres Trucking filed an action against United on May 6, 2016. The complaint alleged that United unreasonably refused to pay the value of the truck and related damages, including storage fees, and asserted claims for breach of contract and bad faith denial and delay of an insurance claim under sections 10-3-1115 and -1116.
[*7] Two weeks later, in lieu of answering the complaint, United moved to compel appraisal and stay the proceedings; over Andres Trucking’s objection, the court granted the motion.1 Before commencing the appraisal process, Andres Trucking filed an amended complaint. The amended complaint contained a third claim for relief challenging the enforceability of the contractual appraisal provision, but it was otherwise substantially similar to the initial complaint. The district court struck the amended complaint on the ground that the insurance policy required an appraisal.
[*8] The parties proceeded to appraisal. Andres Trucking submitted an appraisal valuing the truck at $42,500, United submitted an appraisal of $33,454, and the umpire obtained an appraisal of $54,289. The umpire ultimately settled on a value of $39,507 plus $3907 in taxes, which [**5] United paid.
[*9] In January 2017, after United paid Andres Trucking the appraised value of the truck, it moved for entry of judgment under C.R.C.P. 12(b)(5), contending that, as a matter of law, the completion of the appraisal process had resolved Andres Trucking’s claims. Andres Trucking objected, contending that “several issues” required determination by a jury, including whether United had unreasonably denied or delayed paying the claim and whether United had breached the insurance contract by failing to pay all of Andres Trucking’s damages.
[*10] While United’s motion for entry of judgment was pending, Andres Trucking again moved to amend its complaint. Its proposed second amended complaint included additional allegations concerning its damages and a fourth claim for unjust enrichment.
[*11] Relying on the enforceability of the appraisal provision, the court again denied the motion. It reasoned that, upon completion of the appraisal process, “the issues before the court were concluded,” and that “[a]ll that remains is for judgment to enter.”
[*12] The court then entered judgment in favor of United on Andres Trucking’s breach of contract and statutory bad faith claims. In its order entering judgment, the court determined [**6] that Andres Trucking’s claims “were subject to the appraisal process,” the “appraisal process was completed and a value determined,” and “[a]ccordingly, as a matter of law [Andres Trucking] can have no claim for breach of contract, much less bad faith breach of contract.” Without analyzing Andres Trucking’s allegations, the court found “[t]here has been no breach of the insurance contract or any unreasonable delay or denial of the claim that was caused by [United].”
II. The District Court Erred in Dismissing Andres Trucking’s Complaint
[*13] Andres Trucking argues that the district court erred in dismissing its complaint, as the appraisal process did not resolve whether United had breached the insurance policy or unreasonably denied or delayed payment of benefits. We agree.
A. Standard of Review
[*14] The purpose of a motion under C.R.C.P. 12(b)(5) is to test the legal sufficiency of the complaint to determine whether the plaintiff has asserted a claim or claims upon which relief can be granted. Hannon Law Firm, LLC v. Melat, Pressman & Higbie, LLP, 293 P.3d 55, 62 (Colo. App. 2011), aff’d, 287 P.3d 842, 2012 CO 61. In evaluating a motion to dismiss under Rule 12(b)(5), we must determine whether, accepting the complaint’s factual allegations as true and viewing them in the light most favorable to the plaintiff, id., the complaint states [**7] a plausible claim for relief, Warne v. Hall, 2016 CO 50, ¶¶ 9, 24, 373 P.3d 588.
[*15] Because it presents a question of law, we review de novo an order granting a motion to dismiss under Rule 12(b)(5). Hannon, 293 P.3d at 63.
B. Analysis
[*16] The district court did not reach any conclusions about the sufficiency of the complaint’s allegations or the plausibility of the claims for relief. Instead, the district court determined that Andres Trucking could not state any claim for relief because completion of the appraisal process, like arbitration, precludes breach of contract and statutory bad faith claims as a matter of law.
[*17] An appraisal is “an act of estimating” or “a valuation of property by the estimate of an authorized person,” Unetco Indus. Exch. v. Homestead Ins. Co., 57 Cal. App. 4th 1459, 67 Cal. Rptr. 2d 784, 789 (Cal. Ct. App. 1997) (quoting Webster’s Third New International Dictionary 105 (1986)), and determines “only the amount of loss,” Hartford Lloyd’s Ins. Co. v. Teachworth, 898 F.2d 1058, 1062 (5th Cir. 1990). By its own terms, the appraisal provision in United’s policy was triggered only when the parties disagreed “on the amount of ‘loss,'” and the provision allowed either party to “demand an appraisal of the ‘loss.'” (Emphasis added.)
[*18] The provision did not purport to be a mechanism for resolving any other disagreements between the parties. Indeed, the provision expressly reserved to United the right to contest liability, notwithstanding the parties’ [**8] participation in the appraisal process. See Auto-Owners Ins. Co. v. Summit Park Townhome Ass’n, 129 F. Supp. 3d 1150, 1153-54 (D. Colo. 2015) (unlike arbitration, appraisal “establishes only the amount of a loss,” and not other issues including liability and coverage (quoting Minot Town & Country v. Fireman’s Fund Ins. Co., 1998 ND 215, 587 N.W.2d 189, 190 (N.D. 1998))); Hartford, 898 F.2d at 1062 (An appraisal does not “resolv[e] issues such as whether the insurer is liable under the policy.”).
[*19] Thus, “an appraisal award, by itself, does not entitle either the insured or the insurer to judgment in its favor” on the insured’s claims of breach of contract or statutory bad faith. Sec. Nat’l Ins. Co. v. Waloon Inv., Inc., 384 S.W.3d 901, 905 (Tex. App. 2012); see also Hometown Cmty. Ass’n v. Phila. Indem. Ins. Co., Civ. A. No. 17-cv-00777-RBJ, 2017 U.S. Dist. LEXIS 203675, 2017 WL 6335656, at *6 (D. Colo. Dec. 12, 2017) (an appraisal is determinative of the amount of loss, but issues outside of the scope of the appraisal must be resolved by the court or fact finder). Judgment does not follow directly from an appraisal because, unlike arbitration, the “function of an appraisal award is not to determine the merits of any claim.” Waloon Inv., 384 S.W.3d at 905.
[*20] In Am. Family Mut. Ins. Co. v. Barriga, 2018 CO 42, ¶ 2, 418 P.3d 1181, for example, the insurance company demanded an appraisal, an appraiser fixed an award, and American Family paid the award. Thereafter, the insured sued the insurer for breach of insurance contract and statutory bad faith under section 10-3-1116(1). Id. at ¶ 3. The jury found in favor of the insured on both claims and awarded separate damages. Id. [**9] On appeal, the supreme court concluded that where “the payments . . . were unreasonably delayed but eventually paid . . . pursuant to the third-party appraisal process outlined in the insurance agreement,” the insured could keep the amount paid pursuant to the appraisal process, recover any damages resulting from a breach of the insurance contract, and receive an additional “two times the covered benefit” under section 10-3-1116. Id. at ¶¶ 8-12 (quoting § 10-3-1116(1)). Thus, under Barriga, appraisal and litigation of breach of contract and bad faith claims are not mutually exclusive. And, contrary to United’s argument, partial payment of benefits is not a complete defense, as a matter of law, to a bad faith claim. Id. at ¶¶ 12-13.
[*21] In concluding that an appraisal necessarily precludes further litigation, the district court appears to have relied on its determination that “the appraisal process cannot be a violation of an insurance company’s contractual or statutory duty to adjust a claim.” In the same vein, United insists that Andres Trucking’s complaint does not state a claim because “[i]t cannot be bad faith, as a matter of law, to insist upon the enforcement of a valid contractual provision.”
[*22] We do not disagree [**10] with these general propositions, but they miss the point of Andres Trucking’s allegations. Andres Trucking does not contend that adherence to the appraisal process itself amounts to a breach of contract or bad faith. The crux of its complaint is that United unreasonably delayed paying the claim; attempted to pressure Andres Trucking into accepting less than the full value of the insured property; refused to pay additional damages related to the loss; did not invoke the appraisal provision until months after submission of the claim; and then, during the appraisal process, valued the claim at a lower amount than it had offered during earlier negotiations. In later filings, Andres Trucking suggested that United had also delayed paying the full appraisal amount. (This allegation was not included in either of the proposed amended complaints, however.)
[*23] The insurer’s mere invocation of the appraisal provision, at some point during the dispute, does not immunize it from liability for a claim of bad faith. Bad faith conduct may occur “before, during, and after the appraisal process.” Hometown Cmty. Ass’n, 2017 U.S. Dist. LEXIS 203675, 2017 WL 6335656, at *6.
[*24] Nor are we persuaded by United’s related, and unsupported, argument that “there could be no breach [of the [**11] contract] as a matter of law until the amount of the benefit was determined” through the appraisal process.
[*25] A breach of insurance contract may be based not merely on the insured’s ultimate financial liability, but also on “the insurer’s conduct in unreasonably refusing to pay a claim,” “delaying payments,” and “failing to act in good faith.” Goodson v. Am. Standard Ins. Co. of Wis., 89 P.3d 409, 414 (Colo. 2004). And, consistent with our earlier conclusion, the insurer’s failure to act in good faith may occur before invocation of the appraisal provision.
[*26] Finally, we reject United’s contention that any error by the district court in dismissing the claims based on its misapprehension of the appraisal process was harmless. According to United, the claims should nevertheless have been dismissed because Andres Trucking “presented no evidence that convinced the trial court that United Fire had acted unreasonably with respect to paying the claim,” and, “[a]s the trial court found, any delay in payment of the claim was due to Andres [Trucking’s] refusal to participate in appraisal.”
[*27] Andres Trucking was not required, at this stage, to “present evidence” of United’s unreasonableness in handling or paying the claim. And the district court could not have properly [**12] “found” under Rule 12(b)(5) that any delay in payment was attributable to Andres Trucking. On a Rule 12(b)(5) motion to dismiss, the court had to accept Andres Trucking’s allegations as true and construe those allegations in the light most favorable to it. Hannon, 293 P.3d at 62.
[*28] To the extent United asserts that the district court bypassed Rule 12(b)(5) and moved directly to summary judgment under C.R.C.P. 56, as United suggested at oral argument, we disagree.
[*29] First, United’s “motion for entry of judgment” argued that Andres Trucking “failed to state a claim upon which relief can be granted” and requested relief under Rule 12(b)(5).
[*30] Second, when the court granted United’s motion, United had not yet answered the complaint, the parties had not engaged in discovery, neither party had filed a motion for summary judgment, and the court did not tell the parties in advance that it would treat the motion as one for summary judgment. Accordingly, the claims were not susceptible of resolution under Rule 56.
[*31] We conclude that the district court erred in determining that appraisal necessarily precluded Andres Trucking from pursuing its breach of contract and statutory bad faith claims. We therefore reverse the judgment and remand for reinstatement of the complaint.
[*32] In light of our disposition, [**13] we vacate the district court’s order awarding United its costs as the prevailing party. See Bainbridge, Inc. v. Douglas Cty. Bd. of Comm’rs, 55 P.3d 271, 274 (Colo. App. 2002) (“[W]here a judgment has been successfully appealed, an award of costs previously entered on that judgment is no longer valid because, upon remand, that judgment no longer exists.”).
III. The Appraisal Award is a Binding Determination of the Value of the Insured Property
[*33] Having determined that the appraisal process does not, as a matter of law, preclude Andres Trucking from litigating its claims, we now address its various challenges to the appraisal process itself. For the reasons explained below, we reject those challenges and conclude that the appraisal award is a binding determination of the value of the insured property, and thus Andres Trucking may not further litigate that issue.
A. The Appraisal Provision is Enforceable
[*34] In its briefing, Andres Trucking asserts that the district court should not have enforced the appraisal provision because the appraisal procedure “violates the constitutional right of litigants to a speedy trial.” Andres Trucking offers no argument or relevant authority to support this assertion.2 Ordinarily, we decline to address contentions that “lack any meaningful explanation.” [**14] Holley v. Huang, 284 P.3d 81, 87 (Colo. App. 2011) (declining to address “bald assertions of error”).
[*35] Moreover, at oral argument, Andres Trucking clarified that its objection to the appraisal provision stems from the court’s interpretation of the provision as an alternative to litigation. Because we have reversed the court’s judgment in this regard, that would seem to settle the matter.
[*36] Still, to the extent Andres Trucking contends that appraisal provisions are generally unconstitutional because they delay litigation of the insured’s claims, we disagree.
[*37] For one thing, we are not aware of a constitutional right to resolve civil claims within a specific period. And even if there were such a right, Andres Trucking has not alleged that the deprivation of that right prejudiced its ability to litigate its claims against United — for example, that witnesses’ memories have faded or documents have been misplaced.
[*38] Furthermore, for nearly 100 years, appraisal provisions like the one in Andres Trucking’s policy have been held enforceable under Colorado law. See Norwich Union Fire Ins. Soc’y v. Rayor, 70 Colo. 290, 201 P. 50 (1921); see also Wagner v. Phoenix Ins. Co., 141 Colo. 367, 348 P.2d 150 (1960). At this point, “[m]ost, if not all, property insurance policy contracts include an appraisal clause which may be invoked if there is a dispute between the insured and the [**15] insurer over the amount of loss.” Colo. Div. of Ins., Bulletin No. B-5.26(III) (Oct. 26, 2015), https://perma.cc/RAW4-FXAN . As courts have uniformly recognized, these provisions provide a “plain, speedy, inexpensive and just determination of the extent of the loss.” Auto-Owners Ins. Co. v. Summit Park Townhome Ass’n, 100 F. Supp. 3d 1099, 1103 (D. Colo. 2015) (quoting 46A C.J.S. Insurance § 1889 (2015)).
[*39] Accordingly, we conclude that the district court did not err in enforcing the appraisal provision.
B. United Invoked Appraisal
[*40] Next, Andres Trucking insists that United did not properly invoke appraisal because it “never demanded appraisal.” We reject that contention.
[*41] As we have noted, Andres Trucking conceded that in a January 2016 letter, United “unequivocally requested the appraisal process be initiated.” An unequivocal request to proceed with appraisal is sufficient to invoke the process. The absence of the word “demand” in United’s letter is certainly not fatal. As a general rule, we do not require that litigants use “talismanic language,” see People v. Juarez, 2017 COA 127, ¶ 25 (cert. granted Mar. 12, 2018), nor do we “elevate form over substance,” Perfect Place v. Semler, 2016 COA 152M, ¶ 32 (cert. granted Nov. 13, 2017).
C. The Appraisal Process Produced a Valid Loss Amount
[*42] Andres Trucking contends that the appraisal process did not result in a binding [**16] loss valuation because (1) contrary to the policy requirements, no two appraisals matched; and (2) the umpire’s valuation was mathematically flawed.
[*43] To resolve the first contention, we must construe the insurance policy. We construe an insurance policy like any other contract, Smith v. State Farm Mut. Auto. Ins. Co., 399 P.3d 771, 2017 COA 6, ¶ 6, giving words their plain and ordinary meanings and avoiding strained constructions, Allstate Ins. Co. v. Huizar, 52 P.3d 816, 819 (Colo. 2002).
[*44] The appraisal provision directs that, in the event of a disagreement as to the amount of loss, each party will select a competent appraiser who will “state separately” the amount of the loss. If the appraisers fail to agree, they will “submit their differences” to an impartial umpire. “A decision agreed to by any two will be binding.”
[*45] The appraisal process may therefore involve up to three actors: the insured’s appraiser, the insurer’s appraiser, and the umpire. If “any two” of the three “agree” to a “decision” as to the amount of loss, that decision is “binding” on the parties. Thus, under the plain language of the provision, the appraisal process will produce a binding loss amount if, for example, the umpire and one of the appraisers agree to a decision on the amount of the loss. That is what occurred in this case. Though [**17] United’s appraisal was nearly twenty percent lower than the umpire’s valuation, United’s appraiser later agreed to the umpire’s loss amount, and thus a decision was “agreed to by any two.”
[*46] Andres Trucking’s reading of the policy would require that we substitute the phrase “[a] decision agreed to by any two will be binding” with “the umpire’s decision will be binding if it matches one of the party’s appraisals.” Because we “may not rewrite clear and unambiguous contract provisions,” Bledsoe Land Co. LLLP v. Forest Oil Corp., 277 P.3d 838, 842 (Colo. App. 2011), we may not write that phrase into the contract.
[*47] Andres Trucking counters that the district court, in clarifying the appraisal provision, instructed the parties that if the appraisers could not agree on a value, “the umpire previously selected by them will offer his/her opinion of value,” and that “[i]f two of the three do not match in their opinions, the appraisal process is completed.” Because United’s appraiser and the umpire did not “match in their opinions,” Andres Trucking says, the umpire’s decision, though ultimately agreed to by United’s appraiser, is not binding. We commend the district court for attempting to provide guidance to the parties during a somewhat contentious process, but like us, [**18] the district court was bound by the policy language and could not change the terms of the appraisal process. The district court recognized as much in a later order, in which it construed the appraisal provision and determined that the loss amount agreed to by the umpire and United’s appraiser satisfied the provision, resulting in a binding loss determination. We therefore reject Andres Trucking’s reliance on the district court’s initial instructions regarding appraisal.
[*48] We also reject Andres Trucking’s second contention — that the umpire erred in calculating the loss amount.
[*49] The appraisal award issued under an insurance policy is binding so long as the appraisers (including the umpire) have performed the duties required of them by the policy. Dufrene v. Certain Interested Underwriters at Lloyd’s of London Subscribing to Certificate No. 3051393, 91 So. 3d 397, 403 (La. Ct. App. 2012). As a general matter, an appraisal award entered by an umpire may be disregarded only if the award was made without authority or was made as a result of fraud, accident, or mistake. Barnes v. W. All. Ins. Co., 844 S.W.2d 264, 267 (Tex. App. 1992); see also Emmons v. Lake States Ins. Co., 193 Mich. App. 460, 484 N.W.2d 712, 715 (Mich. Ct. App. 1992) (judicial review of appraisal award is limited to instances of bad faith, fraud, misconduct, or manifest mistake). The burden of demonstrating that the appraised loss amount should be set aside falls on the party challenging it. Dufrene, 91 So. 3d at 403.
[*50] Andres Trucking asserts [**19] that the umpire’s calculation was fatally flawed because rather than relying on his own third appraisal, he averaged all three appraisals to arrive at a loss amount. And, in averaging the appraisals, the umpire failed to take into account that United’s appraisal was “artificially lower” because it did not include taxes.
[*51] But Andres Trucking does not point to any provision of the policy prohibiting this valuation method. And within the area in which they are authorized to act, appraisers are “clothed with a certain degree of discretion with the result that an award will not be set aside merely because the reviewing judge does not agree with the conclusion reached by them.” Steven Plitt et al., Couch on Insurance § 213:2, Westlaw (3d ed. database updated June 2018).
[*52] We are certainly in no position to second-guess the mathematical process adopted by an umpire whose competence and impartiality were never challenged. That is why we require that “[p]arties, after having selected their own judges . . . be bound by the result.” Wilson v. Wilson, 18 Colo. 615, 620, 34 P. 175, 177 (1893).
[*53] Under the circumstances, Andres Trucking has failed to carry its burden to establish a “manifest mistake” in the umpire’s valuation. Emmons, 484 N.W.2d at 715. Accordingly, the district court did [**20] not err in refusing to invalidate the umpire’s decision. See Harleysville Mut. Ins. Co. v. Narron, 155 N.C. App. 362, 574 S.E.2d 490, 496 (N.C. Ct. App. 2002) (“[M]istakes by appraisers, like those made by arbitrators, are insufficient ‘to invalidate an award fairly and honestly made.'” (quoting N.C. Farm Bureau Mut. Ins. Co. v. Harrell, 148 N.C. App. 183, 557 S.E.2d 580, 582 (N.C. Ct. App. 2001))).
IV. Attorney Fees
A. Attorney Fees for Andres Trucking’s Motion for Clerk’s Entry of Default
[*54] On November 30, 2016, after completion of the appraisal process, the parties filed conflicting notices to the court. Andres Trucking, relying on the court’s clarification order, maintained that the appraisal process had failed to produce a binding loss amount, as the umpire’s appraisal did not “match” one of the appraiser’s. United, on the other hand, asserted that the umpire’s award constituted a binding loss amount.
[*55] In response, the court requested that counsel “clarify the file” and explain whether the appraisal process was complete. On December 22, Andres Trucking filed its response to the court’s request for clarification. It also filed a motion for clerk’s entry of default. Andres Trucking’s theory was that, upon the unsuccessful completion of the appraisal process, the stay was automatically lifted, and United was obliged to file an answer to the complaint. When United failed to do so within [**21] twenty days, Andres Trucking concluded that it was entitled to entry of default.
[*56] The district court found the motion substantially vexatious and awarded United its attorney fees and costs:
The court has no idea why Plaintiff filed a request for entry of clerk’s default. It was filed a full 17 days after the court requested clarification on what in the world was going on in the appraisal process, given the conflicting pleadings. Clearly, the court was not of the belief that any default by Defendant could even be imagined, since it had requested information from both counsel. C.R.C.P. 55(a) states, as noted by Defendant, that when a party “has failed to plead or otherwise defend” the other party may have a clerk’s default. Rarely has this court seen such intense and disputed litigation over such a seemingly simple issue as this appraisal process. Clearly, Defendant was in the process of “defending.” And this process was far from complete on December 22, 2016, when Plaintiff filed his request for a clerk’s default. Caution certainly dictated a Response from Defendant. Plaintiff’s request for entry of clerk’s default was substantially vexatious.
[*57] We review an award of attorney fees under section 13-17-102, C.R.S. 2017, for an abuse [**22] of discretion. In re Estate of Shimizu, 2016 COA 163, ¶ 16, 411 P.3d 211. A court abuses its discretion where its decision is manifestly arbitrary, unreasonable, or unfair. Id.
[*58] An award of attorney fees under section 13-17-102 is warranted if a party’s conduct is “substantially frivolous, substantially groundless, or substantially vexatious.” § 13-17-102(4) “An action is substantially vexatious if brought or maintained in bad faith to annoy or harass another, and vexatiousness includes conduct that is arbitrary, abusive, stubbornly litigious, or disrespectful of the truth.” In re I.M., 2013 COA 107, ¶ 29, 410 P.3d 488.
[*59] C.R.C.P. 55(a) empowers the clerk to enter default when “a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend.”
[*60] Andres Trucking insists that, when United failed to file an answer after completion of the appraisal process, it sought entry of default in good faith. But Andres Trucking could not have had a good faith belief that it was entitled to a clerk’s entry of default on December 22 because (1) United was actively defending against Andres Trucking’s claims and (2) the court had ordered clarifications from the parties on December 5.
[*61] We agree with the district court that the parties were involved in “intense and disputed litigation” and that United was “in the [**23] process of defending” against Andres Trucking’s claims when Andres Trucking requested a clerk’s entry of default. Accordingly, the district court did not abuse its discretion in finding Andres Trucking’s motion “substantially vexatious” and awarding United its reasonable attorney fees. See Shimizu, ¶ 30.
B. Appellate Attorney Fees
[*62] United requests appellate attorney fees due to the “frivolous,” “futile, irrational and unjustified” nature of Andres Trucking’s appeal. But we have determined the appeal to be meritorious. Accordingly, we deny United’s request for appellate attorney fees. See Rademacher v. Becker, 2015 COA 133, ¶ 30, 374 P.3d 499 (denying the appellee’s request for attorney fees as a sanction for filing a frivolous appeal because the appellant prevailed on appeal).
[*63] Andres Trucking requests appellate attorney fees in a single sentence of its opening brief: “Plaintiff hereby requests that reasonable attorney fees and costs be awarded against Defendant pursuant to C.A.R. 39 and 39.5 or other applicable statute.” But C.A.R. 39.1 provides that “the party claiming attorney fees must include a specific request” and “explain the legal and factual basis” for an award of attorney fees. Andres Trucking failed to provide any factual recitation or legal authority [**24] for its request for attorney fees. Accordingly, we will not consider its request. See Sos v. Roaring Fork Transp. Auth., 2017 COA 142, ¶ 59 (declining to consider an “undeveloped request” for attorney fees where the requesting party failed to state any legal or factual basis for an award).
V. Conclusion
[*64] The order approving the appraisal value is affirmed but the judgment is reversed and the case is remanded to the district court for reinstatement of Andres Trucking’s complaint. The order awarding United costs as the prevailing party is vacated but the order awarding United its attorney fees for its response to Andres Trucking’s motion for clerk’s entry of default is affirmed.
JUDGE J. JONES and JUDGE ASHBY concur.

Hegemann v. M & M Am.
United States District Court for the District of Vermont
September 20, 2018, Decided; September 20, 2018, Filed
Case No. 2:18-cv-00064

Reporter
2018 U.S. Dist. LEXIS 160683 *
WERNER KARL HEGEMANN, Plaintiff, v. M & M AMERICAN, INC., Defendant.

OPINION AND ORDER TRANSFERRING CASE TO NORTHERN DISTRICT OF TEXAS, AMARILLO DIVISION
Plaintiff Werner Karl Hegemann brings this negligence action against Defendant M & M American, Inc. after Plaintiff was injured in an automobile accident in Texas when his vehicle was struck by a tractor trailer owned or leased by Defendant and operated by an individual who is not named as a defendant. Pending before the court is Defendant’s motion to dismiss Plaintiffs claims for lack of personal jurisdiction and improper venue pursuant to Fed. R. Civ. P. 12(b)(2) and (3). (Doc. 3.) On August 30, 2018, the court heard oral argument on the motion. On September 4, 2018, Defendant consented to transfer of venue in this matter to the United States District Court for the Northern District of Texas, Amarillo Division.
Plaintiff is represented by Richard K. Bowen, Esq. Defendant is represented by Shapleigh Smith, Jr., Esq.

I. Factual Background.
The facts are [*2] derived from Plaintiff’s Complaint. Plaintiff Werner Karl Hegemann resides in Putney, Vermont. Defendant M & M American, Inc. is a trucking company with a principal place of business in Mason, Ohio. Plaintiff’s Complaint does not identify Defendant’s state of incorporation. Plaintiff alleges, upon information and belief, that Defendant conducts business throughout the United States, Canada, and Mexico and is licensed with the Department of Transportation to do business in all forty-eight contiguous states. Defendant has a registered agent in the State of Vermont. Asserting that this is an action between citizens of different states and that damages exceed the amount-in-controversy requirement, Plaintiff claims that this court has subject matter jurisdiction based on diversity of citizenship pursuant to 28 U.S.C. § 1332(a).
On or about April 24, 2016, Plaintiff was traveling eastbound in his 1994 GMC Sierra pickup truck on “IH 40 in Oldham County, Texas[]” when his vehicle was struck by a 2009 White International tractor-trailer truck owned or leased by Defendant and operated by Ratavius D. Buchanan. (Doc. 1 at 2, ¶ 10.) The collision caused Plaintiff’s truck to flip over, resulting in “serious bodily [*3] injuries to its occupants.” Id. at 3, ¶ 13.
A police officer responding to the accident issued Mr. Buchanan a ticket for failing to control the speed of the tractor-trailer. Mr. Buchanan had an unauthorized passenger in the cab of the tractor-trailer and was purportedly distracted by the unauthorized visitor when the accident occurred. Plaintiff was transported from the scene and admitted to Northwest Texas Hospital. Based on these allegations, Plaintiff asserts claims of negligence, respondeat superior, and negligent hire and supervision.
Defendant submitted an affidavit from its President, Brian West, which describes Defendant’s business as a for-hire, transportation company primarily serving the Midwestern and Southern United States. Mr. West avers that Defendant is incorporated and has its principal place of business in Ohio and is not registered with Vermont’s Secretary of State to do business in Vermont, does not have any offices, employees, or bank accounts in Vermont, and does not own or lease any property in the state.
Mr. West avers that, since 2014, Defendant has not had any Vermont-based clients and, as a result, earned no revenue in Vermont. “Since 2014, the number of deliveries/pick-ups [*4] that [Defendant] has made in Vermont on an annual basis represents .07% or less than the total number of deliveries/pick-ups made by [Defendant][.1” (Doc. 3-1 at 2, ¶ 7.)
Mr. West further describes Defendant’s obligations under the federal Motor Carrier Act, which provides that a motor carrier must designate an agent upon whom service of process may be made in each state in which the carrier operates. To that end, Defendant has “made arrangements with Process Agent Service Company, Inc. to make a ‘blanket designation.'” Id. at 2, ¶ 9. According to Mr. West, Process Service Company maintains a list on file with the federal Motor Carrier Safety Administration that identifies a process agent for each of the fifty states. “Because [Defendant] made a blanket designation, it has designated all of the people identified on that list as its process agents.” Id.

II. Conclusions of Law and Analysis.

A. Standard of Review.
“In the absence of a federal statute specifically directing otherwise, and subject to limitations imposed by the United States Constitution, [the court] look[s] to the law of the forum state to determine whether a federal district court has personal jurisdiction over a foreign corporation.” [*5] Brown v. Lockheed Martin Corp., 814 F.3d 619, 624 (2d Cir. 2016) (citing Fed. R. Civ. P. 4(k)(1)(A)). “On a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of showing that the court has jurisdiction over the defendant.” Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996).
“In evaluating whether the requisite showing has been made, [the court] construe[s] the pleadings and any supporting materials in the light most favorable to the plaintiffs.” Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161, 167 (2d Cir. 2013). “The allegations in the complaint must be taken as true to the extent they are uncontroverted by the defendant’s affidavits.” MacDermid, Inc. v. Deiter, 702 F.3d 725, 727 (2d Cir. 2012). “If the parties present conflicting affidavits, all factual disputes are resolved in the plaintiffs favor, and the plaintiffs prima facie showing is sufficient notwithstanding the contrary presentation by the moving party.” In re Terrorist Attacks on Sept. 13, 200, 714 F.3d 659, 673 (2d Cir. 2013) (internal quotation marks omitted).
As the Second Circuit has explained:
[I]n resolving questions of personal jurisdiction in a diversity action, a district court must conduct a two-part inquiry. First, it must determine whether the plaintiff has shown that the defendant is amenable to service of process under the forum state’s laws; and second, it must assess whether the court’s assertion of jurisdiction under these laws comports with the requirements of due [*6] process.
Ehrenfeld v. Mahfouz, 489 F.3d 542, 547 (2d Cir. 2007) (internal quotation marks omitted) (quoting Metro. Life Ins. Co., 84 F.3d at 567).
In Vermont, state courts may exercise personal jurisdiction over a non-resident defendant “to the full extent permitted by the. . . Due Process Clause” of the Fourteenth Amendment. State v. Atl. Richfield Co., 2016 VT 22, ¶ 10, 201 Vt. 342, 349, 142 A.3d 215, 220 (internal quotation marks omitted); see also In re Roman Catholic Diocese of Albany, N.Y., Inc., 745 F.3d 30, 38 (2d Cir. 2014) (“Vermont’s long-arm statute . . . reflects a clear policy to assert jurisdiction over individual defendants to the full extent permitted by the Due Process Clause.”) (internal citation, footnote, and quotation marks omitted). As a result, “the first part of [the] inquiry—the interpretation of the Vermont law governing service of process—merges with the second part of the jurisdictional test: whether the court’s exercise of personal jurisdiction over the defendant satisfies the requirements of due process.” Metro. Life Ins. Co., 84 F.3d at 567. This “analysis consist[s] of two components: the ‘minimum contacts’ test and the ‘reasonableness’ inquiry.” Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 127 (2d Cir. 2002); see also N Aircraft, Inc. v. Reed, 572 A.2d 1382, 1386 (Vt. 1990) (providing that “once the court determines that a nonresident defendant has purposefully established minimum contacts within the forum State, . . . several factors must be considered to ensure that exercising personal jurisdiction over the defendant is reasonable”) (citation and internal quotation marks omitted).
“To determine whether a [*7] defendant has the necessary ‘minimum contacts,’ a distinction is made between ‘specific’ and ‘general’ personal jurisdiction.” In re Terrorist Attacks, 714 F.3d at 673. Specific jurisdiction “exists when a forum exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum[.]” Id. at 673-74 (alteration and internal quotation marks omitted). In contrast, general jurisdiction “is based on the defendant’s general business contacts with the forum and permits a court to exercise its power in a case where the subject matter of the suit is unrelated to those contacts.” Id. at 674 (alteration and internal quotation marks omitted). “A court deciding whether it has jurisdiction over an out-of-state defendant under the Due Process Clause must evaluate the ‘quality and nature[] . . . of the defendant’s contacts with the forum state under a totality of the circumstances test[.]” Best Van Lines, Inc. v. Walker, 490 F.3d 239, 242 (2d Cir. 2007) (quoting Burger King v. Rudzewicz, 471 U.S. 462, 475 (1985)).

B. Whether General Jurisdiction Exists.
Plaintiff asserts that this court has jurisdiction over Defendant “by reason of its business activities” as it provides services throughout the United States, Canada, and Mexico, is licensed with the Department of Transportation in all forty-eight contiguous states, and has a registered [*8] agent in Vermont. (Doc. 1 at 2, ¶ 5.) In his opposition brief, he further claims that Defendant advertises to Vermont companies, its employees use Interstate 89 and Interstate 91 in Vermont, purchase gas in the state, and make use of accommodations while in Vermont.1 Based on the uncontroverted allegations set forth in Mr. West’s declaration, Defendant responds that its limited contacts with Vermont do not permit the exercise of general jurisdiction over it.
A corporation is subject to general jurisdiction in a forum when “‘the continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.'” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011) (quoting Intl Shoe Co. v. Washington, 326 U.S. 310, 318 (1945)). “[T]he general jurisdiction inquiry ‘is not whether a foreign corporation’s in-forum contacts can be said to be in some sense continuous and systematic,'” but rather “‘whether that corporation’s affiliations with the State are so continuous and systematic as to render it essentially at home in the forum.'” Brown, 814 F.3d at 627 (quoting Daimler AG v. Bauman, 134 S. Ct. 746, 761 (2014)).
“With respect to a corporation, the place of incorporation and principal place of business are paradigm bases. . . for general jurisdiction.” [*9] Daimler, 134 S. Ct. at 760 (alteration and internal quotation marks omitted). A corporation’s principal place of business is “the place where a corporation’s officers direct, control, and coordinate the corporation’s activities.” Hertz Corp. v. Friend, 559 U.S. 77, 92-93 (2010). “In practice, this should normally be the place where the corporation maintains its headquarters—provided that the headquarters is the actual center of direction, control, and coordination, i.e., the ‘nerve center.'[]” One West Bank, NA. v. Melina, 827 F.3d 214, 218 (2d Cir. 2016) (citing Hertz, 559 U.S. at 93) (internal quotation marks omitted).
As the Second Circuit recently observed:
[I]n assessing the extent of a corporation’s contacts in a state for general jurisdiction purposes, we must assess the company’s local activity not in isolation, but in the context of the company’s overall activity: the general jurisdiction inquiry “does not focus solely on the magnitude of the defendant’s in-state contacts,” but “calls for an appraisal of a corporation’s activities in their entirety, nationwide and worldwide.”
Brown, 814 F.3d at 629 (quoting Daimler, 134 S. Ct. at 762 n.20). “Only in the ‘exceptional’ case will another jurisdiction be entitled to exercise such sweeping powers as the use of its adjudicatory authority to decide matters unrelated to its citizens or to affairs within its borders.” Id. at 627 (quoting Daimler, 134 S. Ct. at 761 n.19).2
Neither of the “paradigm bases” of general jurisdiction exist here because there is no dispute that Defendant is incorporated and has its principal place of business in Ohio. Daimler, 134 S. Ct. at 760 (alteration and internal quotation marks omitted). The court therefore may only exercise general jurisdiction over Defendant if this is an “exceptional” case. See Brown, 814 F.3d at 627 (holding that “except in a truly ‘exceptional’ case, a corporate defendant may be treated as ‘essentially at home’ only where it is incorporated or maintains its principal place of business”).
In Brown, the Second Circuit found defendant Lockheed Martin’s contacts with the forum of Connecticut were insufficient under Daimler to permit the exercise of general jurisdiction. Lockheed had a physical presence in Connecticut for over three decades and had obtained and maintained a certificate to do business in that state. It employed between approximately thirty to seventy workers in Connecticut from 2008 through 2012, derived approximately $160 million in revenue for its Connecticut-based activities, and paid Connecticut taxes on that revenue. The Second Circuit explained that “Lockheed’s business in Connecticut, while not insubstantial, constitute[d] [*11] only a very small part of its portfolio[;]” that, “in each of the years from 2008 through 2012, when suit was filed, its Connecticut-based employees represented less than 0.05% of Lockheed’s full workforce[;]” and that the “$160 million in gross revenue that Lockheed derived from its Connecticut operations over five years never exceeded 0.107% of the company’s total annual revenue.” Id. at 629. As a result, the Second Circuit held that “Lockheed’s contacts with Connecticut fall far short of the relationship that Due Process requires, under Daimler and Goodyear, to permit the exercise of general jurisdiction over Lockheed by Connecticut courts.” Id. at 630.
In this case, Defendant’s contacts with Vermont are nominal to nonexistent in comparison to Lockheed’s contacts with Connecticut. Since 2014, Defendant’s deliveries and pick-ups make up 0.07% or less of its total number of deliveries or pick-ups. Defendant is not registered to do business in Vermont. It does not have any offices, employees, or bank accounts in Vermont and does not lease or own any property here. Without any Vermont-based clients, Defendant has not earned any revenue in Vermont. Defendant’s nominal to nonexistent business activities in [*12] the State of Vermont do not subject it to general jurisdiction here.

C. Whether Defendant Consented to General Jurisdiction in Vermont.
Because personal jurisdiction “is a waivable right, there are a variety of legal arrangements by which a litigant may give express or implied consent to the personal jurisdiction of the court.” Burger King, 471 U.S. 462 at 473 n.14 (internal quotation marks omitted). Plaintiff argues that Defendant has consented to general jurisdiction through its appointment of a registered agent in Vermont pursuant to the Motor Carrier Act, 49 U.S.C. § 13304(a). Relying on the Second Circuit’s decision in Brown, Defendant counters that a motor carrier does not consent to general jurisdiction in every state in which it designates a registered agent and that Plaintiff’s broad interpretation of the Motor Carrier Act would violate Due Process.
Section 13304(a) of the Motor Carrier Act governs the designation of an agent for service of process and provides that:
A motor carrier or broker providing transportation subject to jurisdiction under chapter 135, . . . shall designate an agent in each State in which it operates by name and post office address on whom process issued by a court with subject matter jurisdiction may be served in an action [*13] brought against that carrier or broker.
49 U.S.C. § 13304(a). The phrase “jurisdiction under chapter 135” “generally refers to the jurisdiction of the Secretary of the Department of Transportation and the Surface Transportation Board[] . . . over the interstate transportation by motor carrier and the procurement of that transportation.” W. Express, Inc. v. Villanueva, 2017 WL 4785831, at *5 n.4 (M.D. Tenn. Oct. 24, 2017) (citing 49 U.S.C. §§ 13102(1), (2)) (internal quotation marks omitted).
In Brown, the Second Circuit held that the Connecticut business registration statute, which required foreign corporations transacting business in Connecticut to maintain a registered agent in the state, did not constitute consent to general jurisdiction in Connecticut. The Brown court reasoned that the statute did not “expressly provide[] that foreign corporations that register to transact business in the state shall be subject to the ‘general jurisdiction’ of the Connecticut courts or direct[] that Connecticut courts may exercise their power over registered corporations on any cause asserted by any person.” Brown, 814 F.3d at 634. In light of the “essentially at home” test announced by the Supreme Court in Goodyear and Daimler, the Second Circuit found that “federal due process rights likely constrain an interpretation that transforms a run-of-the-mill [*14] registration and appointment statute into a corporate ‘consent’—perhaps unwitting—to the exercise of general jurisdiction by state courts, particularly in circumstances where the state’s interests seem limited.” Id. at 637. The Second Circuit further observed:
If mere registration and the accompanying appointment of an in-state agent—without an express consent to general jurisdiction—nonetheless sufficed to confer general jurisdiction by implicit consent, every corporation would be subject to general jurisdiction in every state in which it registered, and Daimler’s ruling would be robbed of meaning by a back door thief.
Id. at 640.
Consistent with Brown, the majority of Circuit Courts of Appeals have concluded that appointing a registered agent is insufficient to establish general jurisdiction over a corporation.3 Although Brown interpreted a state statute, its reasoning applies to the federal Motor Carrier Act as well because it does not “expressly provide” that corporations who register to transact business in a state and appoint a registered agent thereby consent to general jurisdiction.
In contrast, the Eighth Circuit in Ocepek v. Corp. Transp., Inc., 950 F.2d 556 (8th Cir. 1991) squarely considered the Motor Carrier Act’s designation of [*15] an agent provision and held that the defendant consented to personal jurisdiction. The Ocepek court looked to Congress’s intended purpose in passing the Motor Carrier Act, noting that “[o]ne of the goals of the [statute] was to protect citizens of the United States from injury resulting from the actions of interstate carriers.” Id. at 559. Consistent with that purpose, the Eighth Circuit interpreted the statute and corresponding regulations, which “say nothing about limited designations,” and found that “this silence reflects that no such limitations were contemplated by the drafters.” Id. at 560.
Ocepeck is non-binding precedent that pre-dates and is arguably inconsistent with Daimler. More critically, its reasoning is inconsistent with Brown, which concluded that a registration statute’s silence did not “expressly provide” for the exercise of general jurisdiction. Brown, 814 F.3d at 634; see also Davis v. Quality Carriers, Inc., 2009 WL 1291985 at *5 (D.N.J. May 7, 2009) (“Nothing in the language of [the Motor Carrier Act] or the applicable [Department of Transportation] regulations even suggests that a motor carrier or other covered entity submits to the jurisdiction of each state in which it designates an agent for service of process.”).
The only case cited by Plaintiff that post-dates Daimler is Grubb v. Day to Day Logistics, Inc., 2015 WL 4068742 (S.D. Ohio July 2, 2015). There, [*16] the court found that the defendant had consented to be sued for an out-of-state automobile accident because it designated an agent pursuant to the Motor Carrier Act. In doing so, it relied on Sixth Circuit precedent, Shapiro v. Southeastern Greyhound Lines, 155 F.2d 135 (6th Cir. 1946), which does not address issues of personal jurisdiction.4 The court found that Shapiro was “unaffected by Daimler[,]” which generally limits general jurisdiction over a corporation to its state of incorporation and principal place of business, but did not address when a corporation consents to personal jurisdiction. Grubb, 2015 WL 4068742, at *4. This court, by contrast, is bound by the Second Circuit’s decision in Brown, which held that the “mere registration and the accompanying appointment of an in-state agent—without an express consent to general jurisdiction” does not constitute consent to personal jurisdiction. Brown, 814 F.3d at 640.
Because Defendant’s designation of a registered agent pursuant to the Motor Carrier Act does not constitute consent to be sued in Vermont, Plaintiff has not met his burden to demonstrate that general jurisdiction exists.

D. Whether Specific Jurisdiction Exists.
Defendant further argues that specific jurisdiction is lacking because none of Plaintiffs claims arise out of any [*17] of its contacts with Vermont but rather relate to an automobile accident that occurred in Texas. Plaintiff responds that Defendant has sufficient contacts with the forum to satisfy Vermont’s long-arm statute and that his claims have a relationship to Defendant’s contacts in Vermont.
“[A] State may authorize its courts to exercise [specific] personal jurisdiction over an out-of-state defendant if the defendant has ‘certain minimum contacts with [the State] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.'” Goodyear, 564 U.S. at 923 (alteration in original) (quoting Intl Shoe, 326 U.S. at 316). “For the purpose of establishing specific personal jurisdiction, the necessary fair warning requirement is satisfied if the defendant has purposefully directed his activities at residents of the forum, and the litigation results from alleged injuries that arise out of or relate to those activities.” In re Terrorist Attacks, 714 F.3d at 674 (internal quotation marks omitted); see also Bristol-Myers Squibb Co. v. Super. Ct. of California, San Francisco Cty., 137 S. Ct. 1773, 1780 (2017) (stating that “there must be an affiliation between the forum and the underlying controversy, principally, an activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation.”) (internal quotation [*18] marks and alteration omitted).
“The inquiry whether a forum State may assert specific jurisdiction over a nonresident defendant focuses on the relationship among the defendant, the forum, and the litigation.” Walden v. Fiore, 134 S. Ct. 1115, 1121(2014) (internal quotation marks omitted). In order for the court to exercise “case-linked” or specific jurisdiction, “the suit must arise out of or relate to the defendant’s contacts with the forum.” Bristol-Myers Squibb, 137 S. Ct. at 1780 (emphasis, internal quotation marks, and alterations omitted). There must be “‘some act by which the defendant purposefully avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.'” Goodyear, 564 U.S. at 924 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). The “‘minimum contacts’ analysis looks to the defendant’s contacts with the forum State itself, not the defendant’s contacts with persons who reside there.” Walden, 134 S. Ct. at 1122. “When there is no such connection, specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the State.” Bristol-Myers Squibb, 137 S. Ct. at 1781.
Here, none of the claims raised in Plaintiff’s Complaint arise out of Defendant’s contacts with Vermont. Instead, they arise out of a motor vehicle accident that took place in Texas between a Vermont driver and [*19] Mr. Buchanan who is from another state. The accident was investigated by Texas law enforcement and Plaintiff was treated and released from a Texas hospital. Plaintiff has thus neither established that Defendant has sufficient minimum contacts for specific jurisdiction nor established that his suit is related to those contacts. As a result, no further analysis of specific jurisdiction is warranted. See Metro. Life Ins. Co., 84 F.3d at 568 (“A reviewing court must first examine the defendant’s contacts with the forum. If the same do not exist in sufficient abundance, that is, if the constitutionally necessary first-tier minimum is lacking, the inquiry ends.”) (internal quotation marks omitted).
Because Plaintiff has not met his burden to establish either general or specific jurisdiction exists at the pleading stage, Defendant’s motion to dismiss for lack of personal jurisdiction is GRANTED.5

E. Whether the Court Should Permit Jurisdictional Discovery.
Without expressly requesting jurisdictional discovery, Plaintiff notes that this court can exercise its discretion to permit jurisdictional discovery and conduct an evidentiary hearing. “A district court is ‘typically within its discretion’ to order jurisdictional discovery where [*20] a plaintiff has ‘made out a prima facie case for jurisdiction.'” Funk v. Belneftekhim, 861 F.3d 354, 366 (2d Cir. 2017) (quoting Frontera Res. Azer. Corp. v. State Oil Co. of the Azer. Republic, 582 F.3d 393, 401 (2d Cir. 2009)). In this case, that threshold requirement has not been satisfied. In addition, Plaintiff has not identified discovery that may enable him to satisfy the requirements for personal jurisdiction over Defendant.

F. Whether the Court Should Transfer this Case.
28 U.S.C. § 1404 states that: “[for the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a). “Section 1404(a) is merely a codification of the doctrine offorum non conveniens for the subset of cases in which the transferee forum is within the federal court system; in such cases, Congress has replaced the traditional remedy of outright dismissal with transfer.” Atl. Marine Constr. Co., Inc. v. US. Dist. Ct. for the W. Dist. of Texas, 571 U.S. 49, 60 (2013). It “reflects an increased desire to have federal civil suits tried in the federal system at the place called for in the particular case by considerations of convenience and justice.” Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (footnote omitted).
As the Supreme Court has observed, § 1404 “was designed as a federal housekeeping measure, allowing easy change of venue within a unified federal [*21] system.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 (1981) (internal quotation marks omitted). Therefore, “[district courts [are] given more discretion to transfer under § 1404(a) than they [have] to dismiss on grounds offorum non conveniensH” id. at 253, and “motions for transfer. . . are determined upon notions of convenience and fairness on a case-by case basis.” Cuyahoga Equip. Corp. v. United States (In re: Cuyahoga Equip. Corp.), 980 F.2d 110, 117 (2d Cir. 1992) (citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)).
“[A] district court considering a § 1404(a) motion. . . must evaluate both the convenience of the parties and various public-interest considerations.” Ad. Marine, 571 U.S. at 62.
Factors relating to the parties’ private interests include relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. Public-interest factors may include the administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home; and the interest in having the trial of a diversity case in a forum that is at home with the law. The [c]ourt must also give some weight to the plaintiff[‘s] choice of forum.
Id. at 62 n.6 (internal [*22] citations, alterations, and quotation marks omitted).6 It is the moving party’s burden to prove by clear and convincing evidence that a transfer is proper under § 1404(a). See N.Y. Marine & Gen. Ins. Co. v. Lafarge N.A., Inc., 599 F.3d 102, 113-14 (2d Cir. 2010).
Plaintiff has requested that rather than outright dismissal, the court transfer the case so that Plaintiff will not face a statute of limitations issue if he must file his suit elsewhere. Defendant consents to transfer. As the witnesses to the accident, the location of the scene, some of the treating physicians, the availability of compulsory process, and the likely application of Texas law all favor transfer, the court hereby GRANTS Plaintiff s request.

CONCLUSION
For the foregoing reasons, the court TRANSFERS this matter to the United States District Court for the Northern District of Texas, Amarillo Division and upon transfer, will dismiss this case without prejudice pursuant to Defendant’s motion (Doc. 3). SO ORDERED.
Dated at Burlington, in the District of Vermont, this 20th day of September, 2018.
/s/ Christina Reiss
Christina Reiss, District Judge
United States District Court