United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
Carlton Tilley, Jr. Senior United States District Judge.
matter comes before the Court on respective motions to
dismiss for lack of personal jurisdiction, or alternatively,
to transfer the action by Defendants Clark Construction
Group, LLC (“Clark”) and Fidelity and Deposit
Company of Maryland (“Fidelity”) [Doc. #11] and
Defendant Dancker, Sellew, & Douglas, Inc.
(“Dancker”) [Doc. #15]. For the reasons that
follow, both motions to dismiss for lack of personal
jurisdiction are GRANTED.
case is about money allegedly owed from the provision of
goods and services at a construction site in Washington, D.C.
In August 2013, Plaintiff JPB Installers, LLC
(“JPB”), a North Carolina company, began
providing labor and materials for a project at the George
Washington University Science and Engineering Hall. (Compl.
¶¶ 1, 19 [Doc. #4].) JPB served as a subcontractor
for Dancker, a New York corporation with its principal office
in New Jersey, which served as a subcontractor for Hamilton
Scientific, LLC (“Hamilton”), a Delaware company
that has been dismissed from this action, which served as a
subcontractor for Clark, a Maryland company and the general
contractor for the project. (Id. ¶¶ 4, 7,
8, 22.) Fidelity, a Maryland corporation, served as a payment
and performance surety for Hamilton. (Id.
¶¶ 9, 24.) In support of its claims of breach of
contract against Dancker and unjust enrichment against all
Defendants, JPB alleges that Dancker and now-dismissed
Hamilton owe JPB for work performed and that Fidelity is
financially responsible for Hamilton's debts to JPB.
(Id. ¶¶ 33, 34, 36-69.) In response, all
Defendants have moved to dismiss for lack of personal
jurisdiction and, in the alternative, if the Court were not
to dismiss the matter, to transfer the action.
defendant asserts a Rule 12(b)(2) challenge to a court's
personal jurisdiction, the question is one for the court and
the plaintiff bears the burden to prove the existence of a
ground for personal jurisdiction. Combs v. Bakker,
886 F.2d 673, 676 (4th Cir. 1989). The burden “varies
according to the posture of a case and the evidence that has
been presented to the court.” Grayson v.
Anderson, 816 F.3d 262, 268 (4th Cir. 2016). Ultimately,
a plaintiff must prove the existence of a ground for
jurisdiction by a preponderance of the evidence. Id.
(citing Combs, 886 F.2d at 676). However, when, as
here, the court addresses the question of personal
jurisdiction on the basis of the motion papers, supporting
legal memoranda, relevant allegations of the complaint, and,
if provided, supporting affidavits,  the plaintiff has the burden
of making a prima facie showing in support of
jurisdiction. Id. (citing Combs, 886 F.2d
at 676); Universal Leather, LLC v. Koro AR, S.A.,
773 F.3d 553, 558 (4th Cir. 2014).
plaintiff makes a prima facie showing in this
context when it “present[s] evidence sufficient to
defeat a motion for judgment as a matter of law.”
In re Polyester Staple Antitrust Litig., No.
3:03CV1516, 2008 WL 906331, at *7 (W.D. N.C. Apr. 1, 2008)
(quoting Reese Bros., Inc. v. U.S. Postal Serv., 477
F.Supp.2d 31, 36 (D.D.C. 2007)); see also Mattel, Inc. v.
Greiner & Hausser GmbH, 354 F.3d 857, 862 (9th Cir.
2003) cited in Universal Leather, 773 F.3d at 561
(stating that a plaintiff makes a prima facie
showing of personal jurisdiction by presenting facts that, if
true, would support jurisdiction). Stated another way, a
plaintiff makes a prima facie showing when there is
evidence which a reasoning mind could accept as sufficient to
support the proposition in question.
an evidentiary hearing, the court “must construe all
relevant pleading allegations in the light most favorable to
the plaintiff, assume credibility, and draw the most
favorable inferences for the existence of
jurisdiction.” Combs, 886 F.2d at 676; see
also Universal Leather, 773 F.3d at 560 (requiring the
court to assume the plaintiff's version of the facts is
credible and to construe any conflicting facts in the
affidavits in the light most favorable to the plaintiff).
However, “[t]he allegations of the complaint are taken
as true only if they are not controverted by evidence from
the defendant.” Vision Motor Cars, Inc. v. Valor
Motor Co., 981 F.Supp.2d 464, 468 (M.D. N.C. 2013)
(citing Wolf v. Richmond Cty. Hosp. Auth., 745 F.2d
904, 908 (4th Cir. 1984)). When a defendant presents evidence
that the court lacks personal jurisdiction, the plaintiff
must present affidavits or other evidence to the contrary.
Id. (citing Clark v. Remark, 993 F.2d 228
(Table), 1993 WL 134616, *2 (4th Cir. Apr. 29, 1993)). If
both sides present evidence about personal jurisdiction, the
court must resolve factual conflicts in the plaintiff's
favor “for the limited purpose” of determining if
the plaintiff has made a prima facie showing.
Id. (citing Mylan Labs., Inc. v. Akzo,
N.V., 2 F.3d 56, 62 (4th Cir. 1993)).
federal court may exercise personal jurisdiction over a
non-resident defendant only if the forum state's long-arm
statute authorizes the exercise of jurisdiction and the
exercise of jurisdiction comports with the Fourteenth
Amendment due process requirements. Christian Sci. Bd. of
Dirs. of First Church of Christ, Scientist v. Nolan, 259
F.3d 209, 215 (4th Cir. 2001). North Carolina's long-arm
statute, General Statute § 1-75.4, “is designed to
extend jurisdiction over nonresident defendants to the
fullest limits permitted by the Fourteenth Amendment's
due-process clause.” Church v. Carter, 380
S.E.2d 167, 169 ( N.C. Ct. App. 1989); see also Christian
Sci. Bd. of Dirs., 259 F.3d at 215 (stating same). Thus,
the court's focus becomes whether the plaintiff has made
a prima facie showing that the defendant's
contacts with North Carolina satisfy constitutional due
process. Universal Leather, 773 F.3d at 558-59.
process allows a court to exercise general or specific
jurisdiction over a defendant. General jurisdiction exists
over a foreign defendant when its “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.” Int'l Shoe Co. v. Washington,
326 U.S. 310, 318 (1945); see also Helicopteros
Nactionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414
n.9 (1984) (“When a State exercises personal
jurisdiction over a defendant in a suit not arising out of or
related to the defendant's contacts with the forum, the
State has been said to be exercising ‘general
jurisdiction' over the defendant.”). General
jurisdiction requires a foreign defendant's
“affiliations with the State [to be] so
‘continuous and systematic' as to render [it]
essentially at home in the forum State.” Goodyear
Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915,
919 (2011) (citing Int'l Shoe Co., 326 U.S. at
317). “The Supreme Court has recently held that, aside
from the ‘exceptional case, ' general personal
jurisdiction over a corporation is usually only appropriate
in the corporation's state of incorporation or principal
place of business.” Public Impact, LLC v. Boston
Consulting Grp., Inc., 117 F.Supp.3d 732, 738 (M.D. N.C.
2015) (citing Daimler AG v. Bauman, ___ U.S. ___,
134 S.Ct. 746, 761 n.19 (2015)).
jurisdiction is very different.” Bristol-Myers
Squibb Co. v. Superior Ct. of Cal., San Francisco Cty.,
___ U.S. ___, ___ S.Ct.___, 2017 WL 2621322, at *6 (June 19,
2017). It exists when the forum state exercises personal
jurisdiction over the defendant “in a suit arising out
of or related to the defendant's contacts with the
forum[.]” Helicopteros Nacionales de Colombia,
S.A., 466 U.S. at 414 n.8. “[T]here must be an
‘affiliation between the forum and the underlying
controversy, principally, [an] activity or an occurrence that
takes place in the forum State.'” Bristol-Myers
Squibb Co., 2017 WL 2621322, at *7 (quoting
Goodyear, 564 U.S. at 919). “When there is no
such connection, specific jurisdiction is lacking regardless
of the extent of a defendant's unconnected activities in
the State.” Id. (citing Goodyear, 564
U.S. at 931 n.6.)
exercise specific jurisdiction over a defendant, due process
requires that the court examine “(1) the extent to
which the defendant purposefully availed itself of the
privilege of conducting activities in the State; (2) whether
the plaintiff[‘s] claims arise out of those activities
directed at the State; and (3) whether the exercise of
personal jurisdiction would be constitutionally
reasonable.” Consulting Eng'rs Corp. v.
Geometric Ltd., 561 F.3d 273, 278 (4th Cir. 2009)
(quoting ALS Scan, Inc. v. Digital Serv. Consultants,
Inc., 293 F.3d 707, 712 (4th Cir. 2002)).
inquiry into “purposeful availment . . . is grounded on
the traditional due process concept of ‘minimum
contacts[.]'” Universal Leather, 773 F.3d
at 559. “Jurisdiction is proper . . . where the
contacts proximately result from actions by the defendant
himself that create a ‘substantial
connection' with the forum State.” Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (quoting
McGee v. Int'l Life Ins. Co., 355 U.S. 220, 223
(1957)). It is not enough that a defendant's contacts
with the forum state arise because the plaintiff is located
there. See Worldwide Ins. Network, Inc. v. Trustway
Ins. Agencies, LLC, No. 1:04CV906, 2006 WL 288422, at *5
(M.D. N.C. Feb. 6. 2006). Instead, the defendant needs to
have “purposely directed [its] activities at the state
of North Carolina.” See Id. At its heart, the
question is “whether the defendant's conduct and
connection with the forum [s]tate are such that he should
reasonably anticipate being haled into court there.”
Universal Leather, LLC, 773 F.3d at 559 (citation
omitted) (alteration in original).
business context, courts analyze “various nonexclusive
factors” to determine if a defendant has purposefully
availed itself of the privilege of conducting ...