Opinion
C/A 8:23-cv-00505-TMC-JDA
06-16-2023
Matthew B. Kidder, Plaintiff, v. Min Ouyang, a/k/a OU Yangmin, Defendant.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin United States Magistrate Judge
Matthew B. Kidder (“Plaintiff”), proceeding pro se, bring this action against Min Ouyang (“Defendant”). [Docs. 1; 25.] Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), D.S.C., the undersigned Magistrate Judge is authorized to review the pleadings and submit findings and recommendations to the District Court. Upon review and in accordance with applicable law, the undersigned concludes that this action should be dismissed without issuance and service of process for the reasons below.
BACKGROUND
Procedural History
Plaintiff commenced this action by filing a Complaint, which was entered on February 6, 2023. [Doc. 1.] On February 10, 2023, the undersigned entered a Report, recommending the Complaint be summarily dismissed for lack of jurisdiction. [Doc. 6.]
On April 6, 2023, Plaintiff filed a motion to amend or correct the Complaint. [Doc. 22.] On June 13, 2023, the Honorable Timothy M. Cain entered an Order mooting Plaintiff's motion as he was permitted to amend his Complaint once as a matter of course prior to service. [Doc. 24.] Plaintiff's Amended Complaint was entered on the docket that same day. [Doc. 25.] Additionally, Judge Cain entered an Order declining to adopt the Report as moot and returned the case to the undersigned for a determination of whether the Amended Complaint cures the deficiencies identified in the Report. [Doc. 26.]
Ordinarily, an amended complaint replaces all prior complaints and should be complete in itself. See Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001) (“As a general rule, an amended pleading ordinarily supersedes the original and renders it of no legal effect.”) (citation and internal quotation marks omitted); see also 6 Charles Alan Wright et al., Federal Practice and Procedure § 1476 (3d ed. 2017) (“A pleading that has been amended under Rule 15(a) supersedes the pleading it modifies and remains in effect throughout the action unless it subsequently is modified. Once an amended pleading is interposed, the original pleading no longer performs any function in the case . . .”). However, out of an abundance of caution, the undersigned will consider the original Complaint and the Amended Complaint in evaluating the sufficiency of Plaintiff's allegations. Indeed, the factual allegations contained in both documents are nearly identical and Plaintiff simply tweaks his causes of action in the Amended Complaint.
Allegations from the Original Complaint
Plaintiff made the following allegations in his original Complaint. [Doc. 1.] In sum, Plaintiff asserted that Defendant, his ex-wife, abducted the parties' minor child, hid her in China, and is preventing Plaintiff from participating in her upbringing. [Id. at 5-8.] According to Plaintiff, the “main cause of action” in the Complaint was “International Parental Child Abduction” under 18 U.S.C. § 1204. [Id. at 5.] Plaintiff alleged Defendant has physically, verbally, financially, and emotionally abused Plaintiff and their child. [Id.]
In 2016, the parties and their child resided in California, but traveled back and forth frequently to China. [Id.] Plaintiff was the child's primary care giver. [Id.] Defendant spent 6 months in California in 2016 for the purpose of maintaining a U.S. residency as she was pursuing U.S. citizenship. [Id.] Then, in August 2016, the parties traveled to Beijing, China with the child, intending to return to the U.S. in December. [Id.] The parties signed a divorce agreement on October 1, 2016, “that ascribed joint custody.” [Id.] On October 23, Defendant physically attacked Plaintiff while he was sleeping and the two stopped cohabitating from that point forward. [Id.]
Then, on December 26, Defendant abducted the parties' child “with the sole intention to cause great psychological harm to [Plaintiff].” [Id.] Defendant hid the child in a Chinese village and made threats that the child would grow up without a father. [Id.] Plaintiff contends Defendant kept their child in China “because she was aware that she could do so with impunity” and that Plaintiff would not be able to enforce a custody order in China. [Id.]
Defendant refused to provide the address of the child's location and obstructed Plaintiff from having contact with his child. [Id. at 6.] In January 2017, Defendant “abandoned the child in Hengyang China” by leaving her in the care of her maternal grandparents. [Id.] Plaintiff contends that Defendant and her parents have conspired to conceal the child in order to deprive Plaintiff of his parental rights in violation of 18 U.S.C. §§ 241 and 242. [Id.] Plaintiff attempted to arrange visitation with his child, but he claims Defendant thwarted his efforts and “took extraordinary efforts to create a deception that she was not hiding the child and that the lack of contact was due to [Plaintiff's] lack of action.” [Id.] Plaintiff reported his child as a missing person to U.S. authorities. [Id.]
Defendant then filed a divorce action in the Chaoyang Family Court in Beijing, China. [Id.] Defendant informed Plaintiff that the Chinese courts do not give specific visitation rights and that she would be the only one to determine if and when Plaintiff would see his daughter. [Id.] Plaintiff alleged that the Chinese courts “do not adhere to U.S. jurisdictional standards, due process, [or the] protection of Civil or Human Rights” and also do not consider the welfare of the child. [Id.] A divorce hearing was held on May 2, 2017, in Haidian court. [Id.] According to Plaintiff, the court “did not look unfavorably on the fact that [Defendant] had abducted their child” and never conducted a hearing or any inquiry into the wellbeing of the child. [Id.] Instead, the judge presumed Defendant should “win custody from the first court date onward.” [Id.] Plaintiff alleged it was not possible for him to challenge custody “because [Defendant] had secured physical custody by kidnapping” the child. [Id.] Plaintiff noted that he “won specific visitation rights on paper” because the Haidian court “was moved by the special parent-child relationship between [Plaintiff] and his daughter and they let [Plaintiff] dictate a detailed visitation schedule.” [Id. at 6-7.] Nevertheless, Plaintiff has been unable to enforce his visitation rights through Chinese judicial channels. [Id. at 7.]
Plaintiff alleged that Defendant “drove [him] out of China in 2019 so that she could completely and fully block all contact between [him] and his daughter.” [Id.] Plaintiff alleged that Defendant made monetary payments to police officials in exchange for special treatment, used corrupt practices to force Plaintiff out of China, tried to have him thrown out of China on false charges, and tried to have him deported. [Id.] Plaintiff eventually left China out of fear for his safety. [Id.] Defendant threatened to have Plaintiff detained if he ever returned to China. [Id.] Defendant also denied Plaintiff any contact with his daughter via phone or video calls. [Id.]
Plaintiff requested the following relief. [Id. at 8.] First, Plaintiff sought a writ of habeas corpus and an order from the Court requiring Defendant to produce the minor child so the Court “can make a proper inquiry concerning her detention.” [Id.] Second, Plaintiff sought an order from the Court requiring Defendant to arrange weekly video calls between Plaintiff and the minor child and to allow the child to physically visit Plaintiff in the United States. [Id.] Third, Plaintiff asked that the Court refer this case for criminal prosecution under 18 U.S.C. § 1204 and for an award of money damages in the amount of $1,525,480. [Id.]
Allegations from the Amended Complaint
The allegations contained in the Amended Complaint are nearly identical to those in the original Complaint, and the Court only summarizes the pertinent allegations. [Doc. 25.] Plaintiff contends he is asserting claims for negligence, negligent infliction of emotional harm, and gross negligence “for unimaginable harm” that Defendant caused to Plaintiff. [Id. at 1.]
As to the basis for jurisdiction, Plaintiff contends that this Court has diversity jurisdiction as he is a citizen of South Carolina, Defendant is “a Chinese National of the State of Beijing China,” and the amount in controversy is $1,707,000. [Id. at 2.] Plaintiff further contends that Defendant “utilized network assets located in South Carolina in conducting part of her negligent actions that caused harm” and that Plaintiff's injuries were sustained in South Carolina. [Id.]
Plaintiff details various “facts most related to the causes of action” in the Amended Complaint, which are nearly identical to those facts alleged in the original Complaint as detailed above. [ Id. at 4-10.]
As to his causes of action, Plaintiff asserts as follows. Plaintiff's first cause of action is for negligence. [Id. at 10.] Plaintiff contends Defendant owed a duty of care to Plaintiff arising from the parent-child relationship, which he claims “is fundamental to the human experience.” [Id. at 11.] Specifically, Plaintiff contends Defendant had a “duty to not offend th[e] bond” between Plaintiff and his child, to maintain the physical and psychological well being of the child, to not cause harm to the child, to create reasonable expectations about when Plaintiff would have contact with his child, to keep scheduled meeting times, and to provide Plaintiff with the address of where the child is living and a working contact number. [Id.]
Plaintiff's second cause of action is for intentional infliction of emotional distress and his third cause of action is for gross negligence. [Id. at 12.] Plaintiff makes no specific allegations as to these two causes of action other than to point to the other facts already alleged. [Id.]
APPLICABLE LAW
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings. This Court possesses the inherent authority to review the pro se Complaint to ensure that subject matter jurisdiction exists and that the case is not frivolous. See Mallard v. U.S. Dist. Court, 490 U.S. 296, 307-08 (1989) (“Section 1915(d) . . . authorizes courts to dismiss a ‘frivolous or malicious' action, but there is little doubt they would have power to do so even in the absence of this statutory provision.”); Ross v. Baron, 493 Fed.Appx. 405, 406 (4th Cir. 2012) (unpublished) (“[F]rivolous complaints are subject to dismissal pursuant to the inherent authority of the court, even when the filing fee has been paid . . . [and] because a court lacks subject matter jurisdiction over an obviously frivolous complaint, dismissal prior to service of process is permitted.”) (citations omitted); see also Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) (“[D]istrict courts may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee[.]”); Ricketts v. Midwest Nat'l Bank, 874 F.2d 1177, 1181 (7th Cir. 1989) (“[A] district court's obligation to review its own jurisdiction is a matter that must be raised sua sponte, and it exists independent of the ‘defenses' a party might either make or waive under the Federal Rules.”); Franklin v. State of Or., State Welfare Div., 662 F.2d 1337, 1342 (9th Cir. 1981) (providing a judge may dismiss an action sua sponte for lack of subject matter jurisdiction without issuing a summons or following other procedural requirements).
Because Plaintiff is a pro se litigant, his pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, even under this less stringent standard, the pro se Complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which a plaintiff could prevail, it should do so, but a district court may not rewrite the pleadings to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct a plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411,417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
Although the Court must liberally construe the pro se pleadings and Plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in the Complaint, the Complaint “must contain sufficient factual matter, accepted as true, 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)); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (explaining that a plaintiff may proceed into the litigation process only when the complaint is justified by both law and fact). “A claim has ‘facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014).
DISCUSSION
At its core, the Amended Complaint, like the original Complaint, asserts claims arising from a custody dispute between Plaintiff and Defendant over their minor child. The allegations in the Amended Complaint, however, do not cure the deficiencies of the original Complaint. For the reasons below, the undersigned concludes that this Court lacks jurisdiction over this action.
Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction, “constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute.” In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Accordingly, a federal court is required to determine if a valid basis for its jurisdiction exists “and to dismiss the action if no such ground appears.” Id.; see also 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.”). There is no presumption that a federal court has jurisdiction over a case, Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999), and a plaintiff must allege facts essential to show jurisdiction in his pleadings, McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); see also Dracos v. Hellenic Lines, Ltd., 762 F.2d 348, 350 (4th Cir. 1985) (“[P]laintiffs must affirmatively plead the jurisdiction of the federal court.”). As such, Federal Rule of Civil Procedure 8(a)(1) requires that a complaint provide “a short and plain statement of the grounds for the court's jurisdiction[.]”
Generally, federal district courts have original jurisdiction over two types of cases, referred to as (1) federal question cases, pursuant to 28 U.S.C. § 1331, and (2) diversity cases, pursuant to 28 U.S.C. § 1332. As to cases involving a federal question, § 1331 provides that the “district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “[F]ederal question jurisdiction exists ‘only when a federal question is presented on the face of the plaintiff's properly-pleaded complaint.'” Burbage v. Richburg, 417 F.Supp.2d 746, 749 (D.S.C. 2006) (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987)). Diversity jurisdiction, on the other hand, requires (1) complete diversity of the parties and (2) an amount in controversy in excess of $75,000.00. See 28 U.S.C. § 1332(a). The parties are completely diverse only if no party on one side is a citizen of the same state as any party on the other side. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373-74 (1978).
Here, Plaintiff has failed to allege facts to demonstrate a valid basis for this Court to exercise jurisdiction under either federal question or diversity.
Federal Question Jurisdiction
First, unlike the original Complaint, the Amended Complaint does not appear to expressly invoke federal question jurisdiction. However, out of an abundance of caution, the undersigned briefly addresses this issue as Plaintiff again cites certain federal criminal statutes in support of his claims. [See, e.g., Doc. 25 at 11 (alleging Defendant violated her duty of care to Plaintiff by violating 18 U.S.C. § 1204 (criminal statute prohibiting international parental kidnapping)).] However, those statutes do not support a claim for relief or provide a basis for federal question jurisdiction.
In the original Complaint, Plaintiff purportedly asserted claims under (1) 18 U.S.C. § 1204 (criminal statute prohibiting international parental kidnapping), (2) 18 U.S.C. § 241 (criminal statute prohibiting conspiracy to violate civil rights), and (3) 18 U.S.C. § 242 (criminal statute prohibiting the deprivation of civil rights under color of law). [Doc. 1 at 3.]
Plaintiff's claims premised on any federal criminal statutes are frivolous, without merit, and subject to dismissal because none of the cited criminal statutes supports a private cause of action. See, e.g., Anderson v. Kata, No. 3:20-cv-3354-HMH-MHC, 2020 WL 8083881, at *2 (D.S.C. Dec. 17, 2020) (explaining that “[18 U.S.C.] §§ 241, 242, and 245 are criminal statutes that do not give rise to civil liability or authorize a private right of action”), Report and Recommendation adopted by 2021 WL 100810 (D.S.C. Jan. 12, 2021); Brown v. Culick, No. 3:20-cv-395-MGL-SVH, 2020 WL 1893290, at *2 (D.S.C. Mar. 3, 2020) (same), Report and Recommendation adopted by 2020 WL 1891928 (D.S.C. Apr. 16, 2020), aff'd, 834 Fed.Appx. 19 (4th Cir. 2021); Baylor v. Eto, No. 19-cv-280 (MJD/HB), 2019 WL 2718531, at *5 (D. Minn. Apr. 29, 2019) (noting 18 U.S.C. §§ 1204 and 241 are criminal statutes that do not provide for a private right of action), Report and Recommendation adopted by 2019 WL 2718380 (D. Minn. June 28, 2019). Criminal statutes are enforceable by the government and not by an individual citizen. See Lopez v. Robinson, 914 F.2d 486, 494 (4th Cir. 1990) (“No citizen has an enforceable right to institute a criminal prosecution.”). Therefore, Plaintiff, a private citizen, may not bring a private action under any of these federal criminal statutes. See, e.g., Brantley v. Nationstar Mortg. LLC, No. 9:19-cv-0490-BHH-BM, 2019 WL 8918793, at *5 (D.S.C. Oct. 8, 2019) (“[T]he Supreme Court historically has been loath to infer a private right of action from a bare criminal statute, because criminal statutes are usually couched in terms that afford protection to the general public instead of a discrete, well-defined group.”) (internal quotation marks omitted), Report and Recommendation adopted by 2020 WL 1181309 (D.S.C. Mar. 11, 2020). Further, “[t]o the extent Plaintiff requests the court order Defendants be prosecuted, the court is unable to provide the relief Plaintiff requests.” Brown v. Culick, No. 3:20-cv-395-MGL-SVH, 2020 WL 564574, at *4 (D.S.C. Feb. 4, 2020); see also Garcia v. Richland Cnty. Sheriff's Dep't, No. 3:19-cv-1934-JMC-SVH, 2019 WL 3067454, at *2 (D.S.C. July 12, 2019) (explaining an individual “does not have a constitutional right to, or a judicially-cognizable interest in, the criminal prosecution of another person”).
As one court has summarized:
The Supreme Court has made clear that the fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person. Federal rights of action, like substantive federal law, must be created by Congress. To create a private right of action, the Fourth Circuit has explained, Congress must speak with a clear voice and the statute must unambiguously express the intent to create not just a private right but also a private remedy. Where Congress is silent or ambiguous, courts may not find a cause of action no matter how desirable that might be as a policy matter. This holds true for federal criminal statutes.McKenzie-El v. IRS, No. ELH-cv-19-1956, 2020 WL 902546, at *14 (D. Md. Feb. 24, 2020) (cleaned up).
Additionally, Plaintiff has failed to cite to any other federal statute, treaty, or constitutional provision that is at issue in this case or that would provide any avenue of relief. The crux of this action is a dispute over Plaintiff's paternal custody and visitation rights. However, “federal courts are courts of limited jurisdiction and generally abstain from hearing child custody matters.” Cantor v. Cohen, 442 F.3d 196, 202 (4th Cir. 2006); see also Davis v. Mitchel, No. 5:12-cv-493-F, 2012 WL 8746406, at *2 (E.D. N.C. Aug. 31, 2012) (dismissing claims regarding child custody as frivolous), Report and Recommendation adopted in part by 2013 WL 4041855 (E.D. N.C. Aug. 8, 2013), aff'd, 553 Fed.Appx. 356 (4th Cir. 2014).
Notably, Plaintiff has not invoked jurisdiction pursuant to the Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) and the International Child Abduction Remedies Act (“ICARA”). “The district courts of the United States have been granted original jurisdiction over actions arising under the Hague Convention.” E. Sussex Child. Servs. v. Morris, 919 F.Supp.2d 721, 727 (N.D. W.Va. 2013) (citing 42 U.S.C. § 11603). To the extent the Court should construe any of Plaintiff's claims as arising under the Hague Convention and ICARA, any such claims would be without merit and/or subject to dismissal for a variety of reasons. For one, venue would not be proper in this Court as the pleadings allege the child is located in China. Id. at 727-78 (explaining that ICARA provides a Hague Convention petitioner can only bring a Hague Convention action in the place where the child is located). In any event, Plaintiff has failed to allege facts to demonstrate that this action asserts claims arising under the Hague Convention or ICARA. Further, China is not a participant in the Hague Convention. See U.S. Department of State, China Hague Convention Participation, available at https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction/ International-Parental-Child-Abduction-Country-Information/China.html; see also U.S. Department of State, U.S. Hague Convention Treaty Partners, available at https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction/ abductions/hague-abduction-country-list.html. As such, “the Convention does not apply to [Plaintiff's] claim.” Marks on Behalf of SM v. Hochhauser, 876 F.3d 416, 424 (2d Cir. 2017).
Diversity Jurisdiction
Likewise, Plaintiff has failed to satisfy the requirements of the diversity statute.Even assuming that Plaintiff's cursory assertions could satisfy the technical requirements of the diversity statute, including the amount in controversy, “the domestic relations exception to the diversity statute would preclude this court from addressing the ‘child custody' issues” presented in the Amended Complaint. Godfrey v. All Unknown Persons or Agents, No. 7:04-cv-0719-20BI, 2004 WL 4961016, at *3 (D.S.C. June 4, 2004), aff'd, 109 Fed.Appx. 578 (4th Cir. 2004); see also Thrower v. Cox, 425 F.Supp. 570, 571 (D.S.C. 1976) (“Although 28 U.S.C. § 1332 purports to grant jurisdiction to the district court in all cases involving diversity of citizenship and the requisite jurisdictional amount, it has long been recognized that cases in the field of domestic relations are an exception.”). “[T]he federal courts have long held that diversity jurisdiction does not include the power to . . . determine child custody rights.” Wasserman v. Wasserman, 671 F.2d 832, 834 (4th Cir. 1982). “This doctrine, referred to as the domestic relations exception, . . . [serves] as a limitation, in some form, on the exercise of diversity jurisdiction.” Id. “Reason and precedent both dictate that in this, a purely custodial case between private parties, that the federal courts not intervene.” Doe v. Doe, 660 F.2d 101, 106 (4th Cir. 1981) (footnote omitted) (finding a writ of habeas corpus is not an available remedy to contest child custody). Accordingly, “[a]s Plaintiff's [action] contains only issues related to domestic relations, it is not properly before this court” and should be dismissed for lack of subject matter jurisdiction. Robinson v. Baxter, No. 4:11-cv-2044-RBH-SVH, 2011 WL 4502096, at *2 (D.S.C. Aug. 31, 2011), Report and Recommendation adopted by 2011 WL 4502083 (D.S.C. Sept. 29, 2011).
As noted, the diversity statute requires the amount in controversy to exceed $75,000. Plaintiff contends that he is seeking an award of $1,707,000 in damages and explains that he derived this number based on his student loans, lost wages, lost workdays, lost wage differential, mental suffering, medical bills, lost lifetime satisfaction, and the loss of his child. [Doc. 25 at 2-3.] However, the Court questions whether Plaintiff's demand for money damages in excess of $1.7 million is legitimately supported by the facts alleged in the Complaint. Plaintiff does not allege facts concerning how the claims asserted in this case-namely Defendant's alleged abduction of the parties' child and the vindication of Plaintiff's custody rights-relate to the loss of his wages and repayment of his student loans. Nevertheless, because the domestic relations exception deprives the Court of diversity jurisdiction, the undersigned declines to address whether Plaintiff's claim for damages satisfies the amount-in-controversy requirement.
Personal Jurisdiction
Further, the undersigned concludes that the Court also lacks personal jurisdiction over the named Defendant as explained in the prior Report. The applicable law for evaluating this Court's personal jurisdiction standard is well-settled. As the Fourth Circuit has explained,
Under Federal Rule of Civil Procedure 4(k)(1)(A), a federal court may exercise personal jurisdiction over a defendant in the manner provided by state law. Thus, for 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. With regard to the first requirement, we must accept as binding the interpretation of [South Carolina's] long-arm statute . . . The [South Carolina] courts have consistently held that the state's long-arm statute is coextensive with the limits of personal jurisdiction set by the due process clause of the Constitution. Thus, our statutory inquiry merges with our constitutional inquiry.
A court's exercise of jurisdiction over a nonresident defendant comports with due process if the defendant has “minimum contacts” with the forum, such that to require the defendant to defend its interests in that state “does not offend traditional notions of fair play and substantial justice.”
The standard for determining the existence of personal jurisdiction over a nonresident defendant varies, depending on whether the defendant's contacts with the forum state also provide the basis for the suit. If those contacts form the basis for the suit, they may establish “specific jurisdiction.” In determining whether specific jurisdiction exists, we consider (1) the extent to which the defendant has 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 state; and (3) whether the exercise of personal jurisdiction would be constitutionally “reasonable.” If, however, the defendant's contacts with the state are not also the basis for the suit, then jurisdiction over the defendant must arise from the defendant's general, more persistent, but unrelated contacts with the state. To establish general jurisdiction, the defendant's activities in the state must have been “continuous and systematic.”Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396-97 (4th Cir. 2003) (internal citations omitted); see also Foster v. Arletty 3 Sarl, 278 F.3d 409, 414 (4th Cir. 2002) (“Because South Carolina has interpreted its long-arm statute to extend personal jurisdiction to the constitutional limits imposed by federal due process, . . . our inquiry must focus on due process.”).
The Amended Complaint, like the original Complaint, does not contain allegations to plausibly establish that Defendant has had contact of any kind with South Carolina. The sole allegation in the Amended Complaint as to Defendant's contacts with South Carolina is that she “utilized network assets located in South Carolina in conducting part of her negligent actions that cause harm to the Plaintiff.” [Doc. 25 at 2.] But Plaintiff fails to allege facts supporting this conclusory assertion.
Indeed, except for a period of six months in 2016 when the parties lived together in California, all of the relevant events giving rise to Plaintiff's claims occurred in China, where Defendant and the minor child presently reside and have resided since 2016. Neither Defendant, the parties' child, nor the events in giving rise to Plaintiff's claims appear to have any connection whatsoever to South Carolina. Thus, Plaintiff has not presented facts showing that this Court may properly exercise personal jurisdiction over Defendant. Accordingly, because “[t]here are no contacts, purposeful availment, or sufficient connection with the state of South Carolina by the Defendant[ she should] be dismissed without prejudice due to a lack of personal jurisdiction.” Juste v. Marie Brennan, No. 4:16-cv-3757-MGL-TER, 2016 WL 7669500, at *2 (D.S.C. Dec. 19, 2016) (dismissing the defendants for lack of personal jurisdiction in a case asserting claims for child custody and visitation), Report and Recommendation adopted by 2017 WL 86134 (D.S.C. Jan. 10, 2017).
The Court is mindful that Plaintiff seeks contact with his minor child. Nevertheless, however noble or legitimate Plaintiff's desire is, he must seek to vindicate his rights only through appropriate legal channels. Bringing this action in this Court is not the proper channel. See, e.g., Cantor, 442 F.3d at 202 (“With the exception of the limited matters of international child abduction or wrongful removal claims, which is expressly addressed by the [Hague] Convention and ICARA, other child custody matters, including access claims, would be better handled by the state courts which have the experience to deal with this specific area of the law.”).
CONCLUSION AND RECOMMENDATION
Accordingly, for the reasons explained above, this Court lacks jurisdiction, and it is therefore recommended that this action be summarily DISMISSED without issuance and service of process. It is further recommended that Plaintiff's motion [Doc. 2] for emergency review be DENIED as moot.
IT IS SO RECOMMENDED.
Plaintiff's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 250 East North Street, Suite 2300 Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).