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Emiabata v. BB&T

United States District Court, M.D. North Carolina

July 31, 2018

PHILIP EMIABATA, Plaintiff,
v.
BB&T (BRANCH BANKING AND TRUST CO.) AND JACQUE DOLOTINA, Defendants.

          MEMORANDUM ORDER

          Thomas D. Schroeder, United States District Judge.

         Plaintiff Philip Emiabata claims that following a banking transaction involving his wife, Defendants Branch Banking and Trust Company (“BB&T”) and Jacque Dolotina, a BB&T bank teller, slandered, libeled, and put him in a false light by claiming to police that he threatened over the telephone to “shoot, ” rather than “sue, ” employees of the bank. In a previous order (Doc. 19), the court permitted Emiabata to amend his complaint to properly allege diversity jurisdiction. Emiabata has since done so. (Doc. 20.) The case returns to the court on BB&T's renewed motion to dismiss (Doc. 9), Dolotina's motion to dismiss (Doc. 27), and Emiabata's motion for leave to amend the complaint yet again (Doc. 32). The motions have been fully briefed and are ready for decision. (Docs. 10, 15, [1] 16, 18, 28, 33, 34, 35, 38, 39, 40, 41, 42.)[2] For the reasons set forth below, BB&T's motion to dismiss will be granted in part and denied in part, Dolotina's motion to dismiss will be granted, and Emiabata's motion for leave to file an amended complaint will be denied.[3]

         I. BACKGROUND

         At a BB&T bank branch in Round Rock, Texas, on June 6, 2016, a bank employee precluded Emiabata's wife, Sylvia, from withdrawing funds from her account because it had been flagged for fraud. (Doc. 2 at 7-8.)[4] Sylvia called Emiabata to explain the situation. (Id.) When the phone was on “loudspeaker, ” Emiabata told Dolotina he “might have a legal action and that [he] might sue the bank for damages.” (Id. at 8.) Dolotina called the police, claiming that she heard Emiabata say he would “come to the bank and Shoot the bank.” (Id. at 7.)[5] As a result, BB&T wrote Emiabata a letter that banned him from the bank, and Emiabata was subjected to a criminal investigation. (Id. at 7-8.)

         II. ANALYSIS

         Emiabata proceeds pro se. “When reviewing a pro se complaint, federal courts should examine carefully the plaintiff's factual allegations, no matter how inartfully pleaded, to determine whether they could provide a basis for relief. In addition, in order to determine whether the claim of a pro se plaintiff can withstand a motion to dismiss, it is appropriate to look beyond the face of the complaint to allegations made in any additional materials filed by the plaintiff.” Armstrong v. Rolm A. Siemans Co., 129 F.3d 1258 (4th Cir. 1997) (citations omitted) (unpublished table decision). However, the liberal construction of a pro se plaintiff's pleading does not require the court to ignore clear defects in pleading, Bustos v. Chamberlain, No. 3:09-1760-HMH-JRM, 2009 WL 2782238, at *2 (D.S.C. Aug. 27, 2009), or to “conjure up questions never squarely presented in the complaint, ” Brice v. Jenkins, 489 F.Supp.2d 538, 541 (E.D. Va. 2007) (internal quotation marks and citation omitted). Nor does it require that the court become an advocate for the unrepresented party. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).

         Federal Rule of Civil Procedure 8(a)(2) provides that a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Under Federal Rule of Civil Procedure 12(b)(6), “a complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). A Rule 12(b)(6) motion to dismiss “challenges the legal sufficiency of a complaint considered with the assumption that the facts alleged are true.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir.2009) (internal citations omitted).

         A. Service and Jurisdictional Defects as to Dolotina

         The court finds that none of the claims against Dolotina can survive the motions to dismiss. In an affidavit accompanying her motion to dismiss, Dolotina states that she was never served the summons or the complaint. (Doc. 27; Doc. 27-1.) While Emiabata claims that Dolotina has been served on “three separate and acceptable” occasions, he has provided no evidence of this service to the court. (Doc. 34 at 6.) Instead, Emiabata has attempted to mail the complaint and summons to the addresses of homes or business with which Dolotina is no longer associated. (Id. at 6- 9.) This does not constitute proper service under the Federal Rules of Civil Procedure or under North Carolina law. As such, Emiabata did not properly serve Dolotina, and the claims against her should be dismissed.

         Further, Dolotina contends that this court does not have personal jurisdiction over her. She is correct. Jurisdiction may be general or specific. In short, if the party maintains “continuous and systematic” contacts with a state, the forum state has general personal jurisdiction over it, and the nonresident may be sued on any claim in that state. See Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 445-46 (1952). But where continuous and systematic contacts are absent, a court may assert specific personal jurisdiction over a defendant for any dispute arising from the defendant's contact with the forum state. See Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414 n.8 (1984). Specific personal jurisdiction “requires only that the relevant conduct have such a connection with the forum state that it is fair for the defendant to defend itself in that state.” CFA Inst. v. Inst. of Chartered Fin. Analysts of India, 551 F.3d 285, 292 n.15 (4th Cir. 2009).

         Here, the court need not engage in an extended analysis, because Dolotina is a citizen of Arizona, her only connection to North Carolina is that she may have driven through this state “several decades ago” when she lived in Georgia, and this case does not involve any action involving her that took place in North Carolina. (Doc. 27-1 ¶ 3.) As such, there are insufficient contacts between North Carolina and Dolotina for this court to have personal jurisdiction over her, and her claim is dismissed on this ground as well. Perdue Foods LLC v. BRF S.A., 814 F.3d 185, 189-92 (4th Cir. 2016) (affirming a district court's dismissal for lack of personal jurisdiction where the district court held that there were insufficient facts to establish that the defendant had the requisite minimum contacts with the forum state).

         B. Claims of False Light

         BB&T moves to dismiss Emiabata's claims that the Defendants put him in a false light. Given that the harm is alleged to have occurred in Texas, the lex loci rule dictates that Texas law apply. Sanatana, Inc. v. Levi Strauss and Co.,674 F.2d 269 (4th Cir. 1982) (discussing the lex loci rule for torts). Texas law does not recognized a cause of action for false light. Therefore, ...


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