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Smith v. Comcast Corp.

United States District Court, S.D. Alabama, Southern Division

February 8, 2018

COMCAST CORPORATION, et al., Defendants.



         This matter is before the Court on motions to dismiss filed by defendants Helmsman Management Services ("Helmsman")[1] and Joy Howard. (Docs. 6, 7).[2]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 resolution.

         After careful consideration, the Court concludes that the motions are due to be granted in part and denied in part.


         According 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.


         Helmsman 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).

         I. Personal Jurisdiction.

         A 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).

         "A 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. 2010).

         "A 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 (Ala. 2004).

         Personal 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.

         "Specific 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, 20).[3] 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).

         "A 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).

         Howard, (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.

         Howard 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.

         Howard 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).

         The 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.[4]

         Howard 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 personal jurisdiction).

         In summary, Howard is not entitled to dismissal for want of personal jurisdiction.

         II. Sufficiency of Service.

         A 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.[5] Because Howard has not met her threshold burden, her motion to dismiss under Rule 12(b)(5) must fail.

         The 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 ...

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