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Liesman v. Weisberg

United States District Court, W.D. North Carolina, Charlotte Division

July 3, 2018

ROBERT M. LIESMAN, Plaintiff,
v.
AMY F. WEISBERG, Defendant.

          ORDER

          Max O. Cogburn Jr United States District Judge.

         THIS 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 following Order.

         I. BACKGROUND

         This is 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. Id.

         I. STANDARDS OF REVIEW

         A. Personal Jurisdiction

         Rule 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.

         When a 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).

         “[F]or 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.

         i. General Jurisdiction

         To be 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, 919 (2011).

         i. Specific Jurisdiction

         In the 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 omitted).

         A 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.

         B. Subject Matter Jurisdiction

         As a 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.

         The 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 different States.”

         Diversity 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).

         Where 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.

         C. Change of Venue

         28 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 ...

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