United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE
matter is before the Court on motions to dismiss filed by
defendants Helmsman Management Services
("Helmsman") and Joy Howard. (Docs. 6,
7).The parties have filed briefs and
evidentiary materials in support of their respective
positions, (Docs. 6, 7, 24, 29), and the motions are ripe for
careful consideration, the Court concludes that the motions
are due to be granted in part and denied in part.
to the pro se complaint, (Doc. 1-1 at 6-25), in May
2016 the plaintiff subscribed to Comcast/Xfinity for internet
and phone service. A technician dispatched to accomplish
installation permanently disabled the ethernet port on the
plaintiff's laptop. The plaintiff had various
difficulties seeking to rectify this situation, including
unpleasant encounters with representatives of the entity
defendants and unjustifiably high bills from Comcast/Xfinity.
and Howard assert that dismissal is appropriate under Rules
12(b)(5) and 12(b)(6); Howard additionally asserts that
dismissal is appropriate under Rule 12(b)(2).
defendant may move to dismiss based on "lack of personal
jurisdiction." Fed.R.Civ.P. 12(b)(2). "As a general
rule, courts should address issues relating to personal
jurisdiction before reaching the merits of a plaintiff's
claims." Republic of Panama v. BCCI Holdings
S.A., 119 F.3d 935, 940 (11th Cir. 1997).
plaintiff seeking to establish personal jurisdiction over a
nonresident defendant bears the initial burden of alleging in
the complaint sufficient facts to make out a prima facie case
of jurisdiction." Louis Vuitton Malletier, S.A. v.
Mosseri, 736 F.3d 1339, 1350 (11th Cir. 2013) (internal
quotes omitted). "When a defendant challenges personal
jurisdiction by submitting affidavit evidence in support of
its position, the burden traditionally shifts back to the
plaintiff to produce evidence supporting jurisdiction, "
unless "the defendant's affidavits contain only
conclusory assertions that the defendant is not subject to
jurisdiction." Id. (internal quotes omitted).
"Where the plaintiff's complaint and supporting
evidence conflict with the defendant's affidavits, the
court must construe all reasonable inferences in favor of the
plaintiff." Meier ex rel. Meier v. Sun International
Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002);
accord Diamond Crystal Brands, Inc. v. Food Movers
International, Inc., 593 F.3d 1249, 1257 (11th Cir.
federal court sitting in diversity may exercise jurisdiction
over a nonresident defendant to the same extent as a court of
that state." Ruiz de Molina v. Merritt & Furman
Insurance Agency, Inc., 207 F.3d 1351, 1355 (11th Cir.
2000). Alabama "extends the personal jurisdiction of
Alabama courts to the limits of due process under the federal
and state constitutions." Ex parte Fidelity
Bank, 893 So.2d 1116, 1121 (Ala. 2004); accord
Ala. R. Civ. P. 4.2(b). Due process under the Alabama
Constitution is in this respect co-extensive with that under
the federal Constitution. Ex parte Georgia Farm Bureau
Mutual Automobile Insurance Co., 889 So.2d 545, 550
jurisdiction can be either general or specific. "General
personal jurisdiction arises when a defendant maintains
continuous and systematic contacts with the forum state even
when the cause of action has no relation to those
contacts." HomeBingo Network, Inc. v.
Chayevsky, 428 F.Supp.2d 1232, 1241 (S.D. Ala. 2006)
(internal quotes omitted). Howard has testified by
declaration that she is not a resident of Alabama but of
Georgia, that she owns no real property in Alabama, that she
maintains no bank accounts in Alabama, that she conducts no
personal business in Alabama, that she has no mailing address
in Alabama, that she pays no taxes to the state of Alabama,
and that she has not been to Alabama since 2013. (Doc. 7-1 at
3). Howard's declaration carries her burden, shifting to
the plaintiff the burden to present evidence supporting
general jurisdiction. Because he has presented nothing in
this regard, it is clear that Howard is not subject to
general jurisdiction in this state.
jurisdiction refers to jurisdiction over causes of action
arising from or related to a defendant's actions within
the forum." PVC Windoors, Inc. v. Babbitbay Beach
Construction, N.V., 598 F.3d 802, 808 (11th Cir. 2010)
(internal quotes omitted). According to the complaint, Howard
contacted the plaintiff (an Alabama resident), attempted to
frustrate his pleas for relief, attempted to defraud him,
resorted to subterfuge in order to reduce the amount he would
be paid, dispatched an investigator to look at his laptop and
wiring, and did everything in her power to mislead the
plaintiff and to defeat his effort to obtain compensation,
her conduct constituting the tort of outrage/intentional
infliction of emotional distress. (Doc. 1-1 at 6, 8, 15-16,
Howard agrees that, from Georgia, she spoke with the
plaintiff over the phone and sent him e-mails and a letter,
all in connection with his claims regarding laptop damage and
service visits, but she denies ever visiting Alabama in
connection with the plaintiff's claims. All her contact
with the plaintiff was in her role as claims adjuster for
Liberty Mutual Insurance Company. (Doc. 7-1 at 2).
defendant is constitutionally amenable to a forum's
specific jurisdiction if it possesses sufficient minimum
contacts with the forum to satisfy due process requirements,
and if the forum's exercise of jurisdiction comports with
traditional notions of fair play and substantial
justice." Vermeulen v. Renault, U.S.A., Inc.,
985 F.2d 1534, 1545 (11th Cir. 1993) (internal quotes
omitted). "To constitute constitutionally minimum
contacts, the defendant's contacts with the applicable
forum must satisfy three criteria. First, the contacts must
be related to the plaintiff's cause of action or have
given rise to it." Id. at 1546. "Second,
the contacts must involve some act by which the defendant
purposefully avails itself of the privilege of conducting
activities within the forum ..., thus invoking the benefits
and protections of its laws." Id. (internal
quotes omitted). "Third, the defendant's contacts
with the forum must be such that [the defendant] should
reasonably anticipate being haled into court there."
Id. (internal quotes omitted).
(Doc. 7 at 6), correctly notes that she cannot be subjected
to personal jurisdiction in Alabama simply because her
employer might be subject to such jurisdiction. Ex parte
Kohlberg Kravis Roberts & Co., 78 So.3d 959, 974 (Ala.
2011); accord Calder v. Jones, 465 U.S. 783, 790
(1984) ("Petitioners are correct that their contacts
with California are not to be judged according to their
employer's activities there. ... Each defendant's
contacts with the forum State must be assessed
individually."). Of course, "[o]n the other hand,
[defendants'] status as employees does not somehow
insulate them from jurisdiction." Id.
relies on Pierce v. Heyman, 480 So.2d 1185 (Ala.
1985), to refute personal jurisdiction. In Pierce,
the plaintiff sued, inter alia, several employees of
the plaintiff's insurer. The claims asserted against the
non-resident individuals are not identified in the opinion,
but the Alabama Supreme Court noted that, from the
allegations of the complaint and its attached exhibits,
"it appears that they had valid justification to request
and obtain additional records and information as to the date
of what they alleged to be a second injury before paying the
claim." Id. at 1186. The defendants presented
affidavits stating that their communications with the
plaintiff were not for personal business but were made within
the scope of their employment in the claims department of the
insurer, which was not their alter ego. Id. at 1185.
The Pierce Court, relying on Thames v.
Gunter-Dunn, Inc., 373 So.2d 640 (Ala. 1979), concluded
that personal jurisdiction would not lie under these
circumstances. 480 So.2d at 1186-87.
reads Pierce for the proposition that "a claims
handler does not submit to personal jurisdiction in Alabama
merely by working on an Alabama-based insurance claim."
(Doc. 7 at 7). Courts construing Pierce and
Thames, however, have construed them differently.
The Supreme Court in Calder distinguished between
"untargeted negligence, " which will not support
personal jurisdiction, and "intentional, allegedly
tortious, actions ... expressly aimed at" the forum
state, which will. 465 U.S. at 789. The Alabama Supreme Court
has characterized Pierce and Thames as
involving only untargeted negligence; when the
defendant's alleged conduct is intentional, tortious and
directed specifically at an Alabama resident, personal
jurisdiction is warranted. Duke v. Young, 496 So.2d
37, 40 (Ala. 1986) (conspiracy to conceal a material fact
during negotiations with Alabama resident); accord Ex
parte Kohlberg, 76 So.3d at 975-76 (complicity in fraud
for purpose of acquiring Alabama corporation with physical
presence in Alabama); Sudduth v. Howard, 646 So.2d
664, 668-69 (Ala. 1994) (participation in scheme to defraud
and deceive potential Alabama investors); Lowry v.
Owens, 621 So.2d 1262, 1267 (Ala. 1993) (fraudulent
misrepresentations to an Alabama resident).
complaint alleges that Howard contacted the plaintiff in
Alabama (something she admits she did repeatedly). The
complaint alleges that Howard, through those contacts, misled
the plaintiff, attempted to defraud him, and engaged in
conduct amounting to the tort of outrage/intentional
infliction of emotional distress. Howard does not offer to
explain how such allegations could implicate only untargeted
negligence rather than intentional tortious conduct directed
specifically towards an Alabama resident, and the Court will
not cast about for such an explanation on her behalf. What
was said in Calder would appear to apply here:
"In this case, petitione[r] [is a] primary participan[t]
in an alleged wrongdoing intentionally directed at [an
Alabama resident], and jurisdiction over [her] is proper on
that basis." 465 U.S. at 790.
posits rather than demonstrates that the assumption of
personal jurisdiction over her, even if she has miminum
contacts with Alabama, would offend traditional notions of
fair play and substantial justice. (Doc. 7 at 9-10). Even if
it is possible for the assumption of personal jurisdiction
over a defendant who intentionally directs tortious activity
against a resident of another state to give such offense,
Howard has failed to show such offense in this case. Alabama
plainly has an interest in redressing torts against its
citizens, and resolving all the plaintiff's claims in a
single forum is clearly more convenient and effective. Howard
says she will be burdened by litigation in Alabama, but she
provides no specifics to bolster her position; that she is
represented by the same counsel as is Helmsman suggests that
she personally will bear little burden in this action.
See generally Coastal Builders, Inc. v. Ficon
Fabricators, Inc., 2005 WL 1005135 at *3-5 (S.D. Ala.
2005) (discussing the factors relevant to the inquiry and a
defendant's considerable burden in showing they disfavor
summary, Howard is not entitled to dismissal for want of
Sufficiency of Service.
defendant may move to dismiss based on "insufficient
service of process." Fed.R.Civ.P. 12(b)(5). Howard
argues that service on her was insufficient because the
plaintiff attempted to serve her by certified mail at
Helmsman's Boston office rather than on her personally or
at her dwelling, (Doc. 7 at 11), and she denies by
declaration that she has authorized anyone in Boston to
accept service on her behalf. (Doc. 7-1 at 3). The difficulty
is that Howard has identified no evidence regarding the
plaintiff's attempt to serve her. As this Court and
others have held, "the defendant first bears the burden
of producing affidavits that, in non-conclusory fashion,
demonstrate the absence of" good service. Because Howard
has not met her threshold burden, her motion to dismiss under
Rule 12(b)(5) must fail.
complaint was filed in state court on July 13, 2017, (Doc.
1-1 at 6), and the plaintiff attempted to serve Helmsman by
certified mail in September 2017, (Doc. 6-2 at 2-3), prior to
the October 11, 2017 removal of the action. When, as here,
service of process is attempted prior to removal from state
court, the sufficiency of service must be measured by state
law governing ...