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Velez v. Colon

United States District Court, M.D. North Carolina

September 30, 2019




         Before the court is Defendant Esther Rebeca Luzon Colon's Motion to Dismiss Plaintiff's Complaint for Lack of Personal Jurisdiction and Improper Venue and/or Motion to Transfer Venue under 28 U.S.C. § 1406(a). (Doc. 8.)[1] The motion was made pursuant to Fed.R.Civ.P. 12(b)(2). Plaintiff, appearing pro se, filed a response, (Doc. 15), to which Defendant filed a reply, (Doc. 16). The issue is now ripe for ruling.[2] For the reasons described below, the court will grant Defendant's Motion to Dismiss for Lack of Personal Jurisdiction.

         Plaintiff has moved to file a surreply, an amended complaint, and related requests for extensions. (Docs. 17, 21, 23, 29.) Defendant has responded by filing motions to strike and an objection to the filing of an amended complaint. (Docs. 18, 24, 30.) The proposed surreply fails to add facts sufficient to change the analysis set forth herein and will therefore be denied. Similarly, the proposed amended complaint fails to allege additional facts sufficient to establish personal jurisdiction as to Defendant and will also be denied.


         Plaintiff is a citizen and resident of North Carolina. (Complaint (“Compl.”) (Doc. 1) at 1.) Defendant is a citizen and resident of Mayaguez Mayaguez, Puerto Rico. (Id. at 2.) Defendant is an attorney and Notary Public in Puerto Rico. (Id.)

         Fed. R. Civ. P. 8 requires that a pleading contain “a short and plain statement of the grounds for the court's jurisdiction” and “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(1) and (2). Plaintiff has failed in that regard here, as Plaintiff's filings contain a number of extraneous allegations including both unrelated facts and unnecessary legal argument. Nevertheless, the core facts of Plaintiff's claim and Defendant's actions do not appear to be significantly disputed. (Compare Pl.'s Resp. (Doc. 15) at 3-4[3], with Def.'s Br. in Support of Motion to Dismiss (Def.'s Br.”) (Doc. 9) at 1-2.)

         Although confusingly pled by Plaintiff, it appears Defendant was appointed by Banco Popular of Puerto Rico (“BPPR”) to handle a mortgage modification involving Plaintiff's property in Puerto Rico, apparently as a part of a refinancing arrangement. (Compl. (Doc. 1) at 2, 9.) In anticipation of the closing, which took place on August 15, 2014, (Pl.'s Resp. (Doc. 15), Affidavit of Graciano Velez (“Velez Aff.”) (Doc. 15-1) at 1), Plaintiff appointed an attorney-in-fact to represent him at the closing in Puerto Rico, (Pl.'s Resp. (Doc. 15) at 9-10). Plaintiff alleges that Defendant communicated from Puerto Rico with him in North Carolina about how to complete a power of attorney for the purpose of concluding the transaction. (Pl.'s Resp. (Doc. 15) at 4.)[4] That power of attorney was completed in Alamance County, North Carolina, and filed with the Alamance County Register of Deeds. (Id.) Plaintiff claims that Defendant's instructions on the power of attorney were “used to initiate the transaction, ” (id.), though there are no other facts alleged showing that Defendant solicited or initiated this refinancing in any way.[5] In April 2017, almost three years after the transaction, Plaintiff initiated new correspondence with Defendant regarding Plaintiff's allegations as to discrepancies in the underlying transaction. (Velez Aff. (Doc 15-1) at 1.) These communications continued into 2018 and appear to discuss the same issues raised in this complaint. (Id. at 1-6.) Plaintiff's allegations as to the alleged wrongdoing by Defendant are not clearly pled, but it appears he alleges the following: that Defendant Colon violated the “Truth in Lending Act” by not ensuring a warning clause was included in the deed that alerted Plaintiff to his right to rescind the transaction. (Compl. (Doc. 1) at 6.) It appears this transaction was either a modification of a first mortgage or some other type transaction involving a consolidation of a first and second mortgage of a note or notes payable to BPPR on Plaintiff's real property located in Puerto Rico. (Id. at 9.) Plaintiff further alleges, in relation to that transaction, that Defendant failed to follow proper notary procedures under Puerto Rican law governing real estate closings, and that she continued to conceal “material facts” in the years that followed. (Id. at 6-7.) Plaintiff alleges he has suffered significant pecuniary loss as a result of Defendant Colon's “fraudulent concealment” of the right to rescind. (Id. at 6.)


         “Under Rule 12(b)(2), a defendant must affirmatively raise a personal jurisdiction challenge, but the plaintiff bears the burden of demonstrating personal jurisdiction at every stage following such a challenge.” Grayson v. Anderson, 816 F.3d 262, 267 (4th Cir. 2016); Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). Such a challenge may be resolved by the court as a preliminary matter. Grayson, 816 F.3d. at 267. While this burden varies depending on the procedural posture of the case,

when the court addresses the personal jurisdiction question by reviewing only the parties' motion papers, affidavits attached to the motion, supporting legal memoranda, and the allegations in the complaint, a plaintiff need only make a prima facie showing of personal jurisdiction to survive the jurisdictional challenge. When determining whether a plaintiff has made the requisite prima facie showing, the court must take the allegations and available evidence relating to personal jurisdiction in the light most favorable to the plaintiff.

Id. at 268 (citations omitted). “A 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.'” Debbie's Staffing Servs., Inc. v. Highpoint Risk Servs., LLC, No. 1:17CV657, 2018 WL 1918603, at *2 (M.D. N.C. Apr. 20, 2018) (citations omitted).

         “Where the defendant has provided evidence, however, that denies facts essential for jurisdiction, the plaintiff must present sufficient evidence to create a factual dispute on each jurisdictional element that has been denied by the defendant and on which the defendant has presented evidence.” Vogel v. Wolters Kluwer Health, Inc., 630 F.Supp.2d 585, 594 (M.D. N.C. 2008); see also Wolf v. Richmond Cty. Hosp. Auth., 745 F.2d 904, 908 (4th Cir. 1984) (“In ruling on a motion to dismiss for lack of personal jurisdiction, the allegations of the complaint, except insofar as controverted by the defendant's affidavit, must be taken as true.” (internal quotation marks omitted)).

         III. ANALYSIS

         A federal district court may only assert personal jurisdiction over a nonresident defendant when two conditions are satisfied: “First, the exercise of jurisdiction must be authorized by the long-arm statute of the forum state, and, second, the exercise of personal jurisdiction must also comport with Fourteenth Amendment[6] due process requirements.” Christian Sci. Bd. of Dirs. of First Church of Christ, Scientist v. Nolan, 259 F.3d 209, 215 (4th Cir. 2001) (citation omitted). North Carolina's long-arm statute, N.C. Gen. Stat. § 1-75.4(1)d, is construed “to extend jurisdiction over nonresident defendants to the full extent permitted by the Due Process Clause.” Id. (citing Century Data Sys., Inc. v. McDonald, 109 N.C.App. 425, 427, 428 S.E.2d 190, 191 (1993)). “Thus, the dual jurisdictional requirements collapse into a single inquiry as to whether the defendant has such ‘minimal contacts' with the forum state that ‘maintenance of the suit does not offend traditional notions of fair play and substantial justice.'” Christian Sci. Bd. of Dirs., 259 F.3d at 215 (quoting Int'l Shoe Co. v. State of Wash., Office of Unemp't Comp. & Placement, 326 U.S. 310, 316 (1945)).

         Minimum contacts sufficient to establish personal jurisdiction over a nonresident defendant may exist by virtue of either specific jurisdiction or general jurisdiction. See Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 397 (4th Cir. 2003). Specific jurisdiction considers instances where the nonresident defendant's “contacts with the forum also provide the basis for the suit” whereas general jurisdiction considers instances where the defendant's contacts with the forum are so “continuous and systematic” as to provide support for jurisdiction over any cause of action. See Id. (citation omitted). A defendant's conduct and connection to the forum must be “such that [it] should reasonably anticipate being haled into court there.” Universal Leather, LLC v. Koro AR, S.A., 773 F.3d 553, 559 (4th Cir. 2014).

         When determining if a defendant may be subject to the court's specific personal jurisdiction, [7] “[f]airness is the touchstone of the jurisdictional inquiry, ” Tire Eng'g & Distribution, LLC v. Shandong Linglong Rubber Co.,682 F.3d 292, 301 (4th Cir. 2012), and a three-part test is employed to determine whether exercise of jurisdiction comports with due process. This test requires analyzing: “(1) the extent to which the defendant purposefully availed itself of the privilege of conducting activities in the State; (2) whether the plaintiffs' claims arise out of those activities directed at the ...

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