Opinion
No. 5:02-CV-641-BO(3)
November 22, 2002
ORDER
This matter is before the Court on Defendant's Motion to Dismiss pursuant to Rules 12(b)(2) and 12(b)(6) of the Federal Rules of Civil Procedure. The underlying claims in this case are for criminal conversation and alienation of affections. For the following reasons, Defendant's Motion to Dismiss will be GRANTED.
BACKGROUND
On January 10, 2002, Plaintiff Warren D. Grant ("Grant") filed a Complaint in Wake County Superior Court, asserting claims for criminal conversation and alienation of affections against Defendant Donald R. Shields ("Shields"). Grant is a resident of Wake County, North Carolina. Grant alleges that Shields, a resident of Huntington Station, New York, is having an affair with Grant's wife, Lisa Marie Grant. Specifically, Grant claims that his wife and Shields met in Philadelphia on or about December 7, 2000 through December 11, 2000. Grant also alleges that his wife has visited Shields in New York and that Grant's eight-year-old child accompanied his wife on this trip. Grant alleges that on December 14, 2000, his wife confessed that she was having an affair, and on January 26, 2001, she moved out of the home she shared with Grant. Grant claims to have learned that the affair between his wife and Shields has been ongoing for several years and alleges that Shields and Lisa Marie Grant continue to engage in sexual intercourse with each other at this time.
On September 6, 2002, Defendant filed a Notice of Removal based on diversity of citizenship. On September 17, 2002, Defendant filed a Motion to Dismiss pursuant to Rules 12(b)(2) and 12(b)(6), claiming that this Court lacks personal jurisdiction over Defendant and that Plaintiff has failed to state a claim upon which relief may be granted. Plaintiff has not filed a response to this motion.
ANALYSIS
"When a court's personal jurisdiction is properly challenged by motion under Federal Rule of Civil Procedure 12(b)(2), the jurisdictional question thereby raised is one for the judge, with the burden on the plaintiff ultimately to prove grounds for jurisdiction by a preponderance of the evidence." Mylan Lab., Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir. 1993). In order to survive a motion to dismiss pursuant to Rule 12(b)(2), the plaintiff must prove a prima facie case of personal jurisdiction. Id. When deciding whether the plaintiff has proven a prima facie case of personal jurisdiction, the court must resolve all factual disputes and draw all reasonable inferences in the plaintiff's favor.Id.
To determine if this Court has personal jurisdiction, the Court must undertake a two-fold inquiry: (1) whether the forum state long-arm statute confers jurisdiction, and (2) whether the exercise of that jurisdiction comports with due process requirements. See id. While North Carolina's long-arm statute has been construed to confer jurisdiction to the fill extent allowed by the due process clause see Dillon v. Numismatic Funding Corp., 231 S.E.2d 629, 630-31 (N.C. 1977), this Court has previously held that personal jurisdiction must nonetheless be grounded upon one of the enumerated bases in the long-arm statute. See Boon Partners v. Advanced Fin. Concepts, Inc., No. 5:95-CV-427-BO, 1998 U.S. Dist. LEXIS 7812, at *7 (E.D.N.C. Mar. 26, 1998).
North Carolina's long-arm statute, N.C. Gen. Stat. § 1-75.4, provides the statutory basis for jurisdiction over a nonresident defendant. Plaintiff's Complaint cites three potential bases of personal jurisdiction under this statute. First, Plaintiff claims that Defendant has engaged in substantial activity within North Carolina and thus falls within N.C. Gen. Stat. § 1-75.4(1)(d). Second, Plaintiff claims that jurisdiction is proper pursuant to N.C. Gen. Stat. § 1-75.4(3) because Defendant has injured Plaintiff by his actions within North Carolina. Finally, Plaintiff contends that Defendant has injured Plaintiff by his actions outside of North Carolina by soliciting Plaintiff's wife within North Carolina, establishing jurisdiction under to N.C. Gen. Stat. § 1-75.4(4)(a).
N.C. Gen. Stat. § 1-75.4(1)(d) provides that personal jurisdiction exists "[i]n any action, whether the claim arises within or without this State, in which a claim is asserted against a party who when service of process is made upon such party . . . [i]s engaged in substantial activity within this State, whether such activity is wholly interstate, intrastate, or otherwise." Defendant contends that he "does not visit, travel, reside, vacation or otherwise participate in any activity or engagement within the state of North Carolina." Mem. in Support of Defendant's Motion to Dismiss at 4-5. While Plaintiff states in his Complaint that Defendant has engaged in substantial activity within North Carolina, he provides no facts whatsoever in support of this claim. Furthermore, all contacts between Defendant and Plaintiff's wife alleged in Plaintiff's Complaint occurred outside of North Carolina. Because Plaintiff has presented no evidence suggesting that Defendant has engaged in substantial activity in North Carolina, personal jurisdiction does not exist pursuant to § 1-75.4(1)(d).
Plaintiff's second basis of jurisdiction, N.C. Gen. Stat. § 1-75.4(3), provides for personal jurisdiction "[i]n any action claiming injury to person or property or for wrongful death within or without this State arising out of an act or omission within this State by the defendant." In Golding v. Taylor, 198 S.E.2d 478 (N.C.Ct.App. 1973), the North Carolina Court of Appeals held that claims for alienation of affections and criminal conversation involve an "injury to person or property" for purposes of § 1-75.4(3). Id. at 479. However, in order to establish jurisdiction under this provision, Plaintiff must show that Defendant committed an act or omission within North Carolina. Again, Plaintiff's Complaint does not allege that any contacts between Defendant and Plaintiff's wife occurred in North Carolina. Instead, Plaintiff claims that the two met in Pennsylvania and New York. Because Plaintiff has not alleged any conduct by Defendant within North Carolina, personal jurisdiction over Defendant cannot be based on § 1-75.4(3).
Finally, Plaintiff claims that jurisdiction is proper under N.C. Gen. Stat. § 1-75.4(4)(a). This provision states that personal jurisdiction exists "[i]n any action claiming injury to person or property within this State arising out of an act or omission outside this State by the defendant, provided in addition that at or about the time of the injury . . . [s]olicitation or services activities were carried on within this State by or on behalf of the defendant." In Cooper v. Shealy, 537 S.E.2d 854 (N.C.Ct.App. 2000), the Court of Appeals found personal jurisdiction over a nonresident defendant based on § 1-75.4(4)(a) in a case involving alienation of affections and criminal conversation. In Cooper, the plaintiff alleged that the defendant had telephoned and emailed her husband in North Carolina in order to solicit his affections and entice him to leave his family. The court found that these phone calls and emails constituted "solicitations" within the meaning of § 1-75.4(4)(a). Id. at 857. The court therefore concluded that personal jurisdiction was authorized by North Carolina's long arm statute because the plaintiff's alleged injury occurred within North Carolina and was allegedly caused by defendant's solicitation of plaintiff's husband in North Carolina. Id. However, unlike Cooper, the Plaintiff in this case has not alleged that any telephone or email communications were made to his wife in North Carolina. Therefore, despite Plaintiff's statement that § 1-75.4(4)(a) applies, the Court finds that this provision does not confer personal jurisdiction over Defendant.
Even if North Carolina's long-arm statute authorized personal jurisdiction in this case, Plaintiff would still be required to show that the exercise of jurisdiction over Defendant satisfies the due process requirements of the Constitution. Jurisdiction is not proper unless the facts of this case indicate that Defendant has minimum contacts with North Carolina, such that maintenance of the suit does not offend "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). In order to satisfy the requirements of due process, Defendant's conduct and connection with the forum state must demonstrate that he has "purposefully availed" himself of the privilege of conducting activities within the state, Hanson v. Denckla, 357 U.S. 235, 253 (1958), and as a result, Defendant should "reasonably anticipate being haled into court there," World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
The United States Supreme Court has identified two types of long-arm jurisdiction — general and specific. A court may exercise general jurisdiction over a defendant in a matter unrelated to the defendant's activities within the state if the defendant's contacts with the state are substantial and continuous. See Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 415 (1984). In contrast, specific jurisdiction exists when a defendant has single or isolated contacts with the forum, but those contacts relate to the cause of action. See id. at 414; Occidental Fire Cas. Co. of North Carolina v. Continental Illinois Nat'l Bank Trust Co. of Chicago, 689 F. Supp. 564, 566-67 (E.D.N.C. 1988). Defendant argues that Plaintiff has not alleged facts sufficient to support either type of jurisdiction in this case. Plaintiff has presented no evidence that Defendant has the systematic and continuous contacts with North Carolina required for general jurisdiction. Moreover, none of the contacts that serve as the basis for Plaintiff's cause of action occurred within North Carolina, and therefore specific jurisdiction is not appropriate.
The only connection between Plaintiff's claim and the state of North Carolina is the fact that Plaintiff's injuries were allegedly suffered within North Carolina because Plaintiff resides there. The Fourth Circuit has addressed whether suffering injuries within the forum state is sufficient to establish personal jurisdiction over a nonresident defendant. In ESAB Group, Inc. v. Centricut Inc., 126 F.3d 617 (4th Cir. 1997), the court held that specific jurisdiction was not established where a nonresident defendant committed an intentional tort outside the forum state knowing that its action would impact the plaintiff within the forum state. The court stated that, "[a]lthough the place that the plaintiff feels the alleged injury is plainly relevant to the inquiry, it must ultimately be accompanied by the defendant's own contacts with the state if jurisdiction over the defendant is to be upheld." Id. at 626. Because the defendant's contacts were not constitutionally sufficient to support either specific or general jurisdiction, the court could not exercise personal jurisdiction over the defendant. Id.
The only case suggesting that the exercise of personal jurisdiction over Defendant would be consistent with the requirements of due process is Cooper v. Shealy, 537 S.E.2d 854 (N.C.Ct.App. 2000). Cooper involved a suit for alienation of affection and criminal conversation against a South Carolina defendant who had communicated with plaintiff's husband via telephone and email. The court considered five factors in determining whether defendant's activities were sufficient to establish minimum contacts: "(1) the quantity of the contacts; (2) the quality and nature of the contacts; (3) the source and connection of the cause of action to the contacts; (4) the interests of the forum state; and (5) the convenience to the parties." Id. at 858 (internal quotations omitted). Despite the fact that the defendant's contacts with North Carolina were uncertain, the court found that other factors supported the exercise of jurisdiction in Cooper. The interest of the forum state was significant because South Carolina did not recognize plaintiff's causes of action, and North Carolina was convenient for the parties because the travel burden on the defendant was minimal and several potential witnesses resided in North Carolina. Id. In this case, the only factor favoring jurisdiction is the interest of the forum state. Plaintiff has not alleged a single contact between Defendant and anyone or anything in North Carolina. In addition, while some witnesses relevant to Plaintiff's marriage and the destruction thereof may be located in North Carolina, the travel burden on Defendant would be significant in this case.
The torts of alienation of affections and criminal conversation have been abolished in Pennsylvania, Todd v. Powell, 6 Pa. D. C. 3d 766 (Pa. Com. Pl. 1978), New York, Hanfgarn v. Mark, 10 N.E.2d 556 (N.Y. 1937), and New Jersey, Blabkmon v. Iles, 71 A.2d 633 (N.J. 1950).
The Court finds that Plaintiff has not satisfied either prong of the personal jurisdiction analysis. Jurisdiction is not authorized by the North Carolina long-arm statute. Furthermore, the exercise of jurisdiction in this case would violate due process because Defendant does not have the necessary minimum contacts with the state of North Carolina. Therefore, Plaintiff's claim must be dismissed pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure.
Because Plaintiff's claim must be dismissed for lack of personal jurisdiction, the Court need not address Defendant's motion to dismiss pursuant to Rule 12(b)(6).
CONCLUSION
For the reasons stated above, Defendant's Motions to Dismiss will be GRANTED. This case is hereby dismissed in its entirety.SO ORDERED.