United States District Court, W.D. North Carolina, Charlotte Division
ROBERT M. LIESMAN, Plaintiff,
AMY F. WEISBERG, Defendant.
Cogburn Jr United States District Judge.
MATTER is before the court on the defendant's
Motion to Dismiss for Lack of Jurisdiction and Alternative
Motion to Change Venue (#11). Having considered the Motions
and the pleadings in this matter, the court enters the
a defamation dispute case arising out of custody litigation
occurring in Mecklenburg County, North Carolina. Plaintiff, a
resident of North Carolina, contends that defendant, a
resident of Virginia, defamed him by making slanderous
statements to the parties' 13-year-old minor child's
pediatrician and psychologist in Northern Virginia. On
November 10, 2017, defendant filed notice to remove the case
to this court based on diversity jurisdiction. In his Amended
Complaint (#9), plaintiff asks the court to resolve the
dispute in plaintiff's home district. In the instant
Motion (#11), defendant asks the court to dismiss the action
for a lack of jurisdiction, or in the alternative, transfer
this matter to an appropriate district court in Virginia.
STANDARDS OF REVIEW
12(b)(2) of the Federal Rules of Civil Procedure provides for
dismissal where the court lacks personal jurisdiction over a
particular defendant. The standard for deciding a motion
based on Rule 12(b)(2) was set forth by the Fourth Circuit
Court of Appeals in Combs v. Bakker, 886 F.2d 673,
676 (4th Cir. 1989), where it explained that a plaintiff has
the burden to prove personal jurisdiction by a preponderance
of the evidence.
factual dispute arises as to whether or not jurisdiction
exists, the court may either conduct an evidentiary hearing
or defer ruling on the matter until it receives evidence on
the jurisdictional issue at trial. Id. When a court
decides the issue on the record then before it, the court may
consider “the motion papers, supporting legal
memoranda, affidavits, other documents, and the relevant
allegations of the complaint, ” and the burden is
plaintiffs' “to make a mere prima facie showing of
jurisdiction to survive the jurisdictional challenge.”
Clark v. Milam, 830 F.Supp. 316, 319 (S.D.W.Va.1993)
(citations omitted). A court must resolve factual disputes in
favor of the party asserting jurisdiction for the limited
purpose of the prima facie showing. Combs, 886 F.2d
at 676. Such resolution must include construing all relevant
pleadings in a light most favorable to the plaintiff, assume
the credibility of any affiant, and must draw the most
favorable inferences for the existence of jurisdiction.
Id.; see also Thomas v. Centennial Commc'ns
Corp., 2006 WL 6151153, at *2 (W.D. N.C. Dec. 20, 2006).
a district court to assert personal jurisdiction over a
nonresident defendant, two conditions must be satisfied: (1)
the exercise of jurisdiction must be authorized under the
state's long-arm statute; and (2) the exercise of
jurisdiction must comport with the due process requirements
of the Fourteenth Amendment.” Carefirst of
Maryland, Inc. v. Carefirst Pregnancy Centers, Inc., 334
F.3d 390, 396 (4th Cir. 2003). Since North
Carolina's long-arm statute extends jurisdiction to the
outer limits of due process, the jurisdictional analysis
merges into a single due process inquiry. Thomas,
2006 WL 6151153, at *2.
consistent with the limitations of due process, a defendant
must have “minimum contacts” with the forum
state, “such that the maintenance of the suit does not
offend traditional notions of fair play and substantial
justice.” Int'l Shoe Co. v. Washington,
326 U.S. 310, 316 (1945). Minimum contacts may be established
by showing “general” or “specific”
jurisdiction. Helicopteres Nacionales de Columbia, S.A.
v. Hall, 466 U.S. 408, 414 (1984). A court may exercise
general jurisdiction over a nonresident defendant if the
defendant has contacts with a state that are so
“continuous and systematic” as to render them
“essentially at home in the forum.” Goodyear
Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915,
absence of general jurisdiction, a court may exercise
specific jurisdiction over the defendant where the cause of
action arises out of defendant's activities in the forum
state. Id. (holding that a forum state may assert
specific jurisdiction over a claim where there is an
“affiliatio[n] between the forum state and the
underlying controversy”). In analyzing specific
jurisdiction over a defendant, courts consider whether:
“(1) the defendant purposefully directed its activities
at residents of the forum state, (2) the claim arises out of
or relates to the defendant's activities with the forum
state, and (3) assertion of personal jurisdiction is
reasonable and fair.” Grober v. Mako Products,
Inc., 686 F.3d 1335, 1346 (Fed. Cir. 2012) (citation
defendant purposely establishes “minimum
contacts” in the forum state either by deliberately
engaging in significant activities or by creating continuing
obligations such that she has “availed [herself] of the
privilege of conducting business there.” Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985);
Int'l Shoe Co., 326 U.S. at 316. These acts must
be “such that [a defendant] should reasonably
anticipate being hauled into court [in the forum
state].” World-Wide Volkswagen Corp. v.
Woodson, 444, U.S. 286, 297 (1980). Plaintiff has the
burden of making a prima facie showing of specific
jurisdiction by satisfying the first two elements. The burden
then shifts to defendant to show that such assertion is
unreasonable and unfair. Id.
Subject Matter Jurisdiction
threshold matter, the court must determine whether it has
subject matter jurisdiction to adjudicate Plaintiffs'
claims. See Fed.R.Civ.P. 12(h)(3) (“If the
court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”).
Subject matter jurisdiction involves “[j]urisdiction
over the nature of the case and the type of relief
sought.” In the Matter of T.R.P., 360 N.C.
588, 590 (2006) (citing Black's Law Dictionary,
856 (7th ed. 1999)). In the absence of such jurisdiction, the
court has no power to decide a case.
primary sources of the subject-matter jurisdiction of federal
courts include diversity jurisdiction and federal question
jurisdiction. See 28 U.S.C. § 1331, 1332(a). 28
U.S.C.A. § 1332(a), which pertains to diversity
jurisdiction, provides: “The district courts shall have
original jurisdiction of all civil actions where the matter
in controversy exceeds the sum or value of $75, 000,
exclusive of interest and costs, and is between: (1) citizens
of different states; (2) citizens of a State and citizens or
subjects of a foreign state, except that the district courts
shall not have original jurisdiction under this subsection of
an action between citizens of a State and citizens or
subjects of a foreign state who are lawfully admitted for
permanent residence in the United States and are domiciled in
the same State; (3) citizens of different States and in which
citizens or subjects of a foreign state are additional
parties; and (4) a foreign state, defined in section 1603(a)
of this title, as plaintiff and citizens of a State or of
jurisdiction is determined based on the state of the
pleadings at the time of removal. A plaintiff may not defeat
diversity jurisdiction by filing a post-removal amendment
which reduces the amount of damages requested by the
complaint below the amount in controversy required by 28
U.S.C. § 1332(a). Saint Paul Mercury Indem. Co. v.
Red Cab Co., 303 U.S. 283, 294 (1938). The Third and
Fifth Circuits, as well as district courts within the Fourth
Circuit, have held that plaintiffs in removal actions may
clarify the damages sought when state pleading requirements
did not permit him to do so in the original complaint.
See Angus v. Shiley, Inc., 989 F.2d 142, 145 n. 3
(3d Cir. 1993); Asociacion Nacional v. Dow Quimica,
988 F.2d 559, 565 (5thCir. 1993); Griffin v.
Holmes, 843 F.Supp. 81 (E.D. N.C. 1993). However, the
Fourth Circuit has not specifically addressed this issue.
See Woodward v. Newcourt Commer. Fin. Corp., 60
F.Supp.2d 530, 532 (D.S.C. 1999).
federal subject matter jurisdiction is at issue, the burden
of establishing diversity jurisdiction rests with the party
seeking to preserve removal. Mulcahey v. Columbia Organic
Chems. Co. Inc., 29 F.3d 148, 151 (4th Cir. 1994). The
burden thus rests on defendant to prove that diversity
jurisdiction exists. Id.
Change of Venue
U.S.C. § 1404(a) provides: “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.”
Id. For a motion to transfer, a movant's burden
is heavy. Datasouth Computer Corp. v. Three Dimensional
Technologies, Inc., 719 F.Supp. 446, 451 (W.D. N.C.
1989). A court's decision to grant a motion to transfer
venue under 28 U.S.C. § 1404(a) is largely
discretionary. 3A Composites USA, Inc. v. United Indus.,
Inc., 2014 WL 1471075, at *1 (W.D. N.C. Apr. 15, 2014)
(citing Landers v. Dawson Const. Plant Ltd., 201
F.3d 436 (4th Cir. 1999)). Factors to consider include:
1. The plaintiff's initial choice of forum;
2. The residence of the parties;
3. The relative ease of access of proof;
4. The availability of compulsory process for attendance of
witnesses and the costs of obtaining attendance of ...