United States District Court, N.D. Alabama, Southern Division
ELIA A. AGUNDIS, Plaintiff,
JOHN LEON RICE, Defendant.
E. OTT CHIEF UNITED STATES MAGISTRATE JUDGE
Elia Agundis, acting pro s e, has sued John Leon
Rice in his official and individual capacities for numerous
alleged intentional torts and criminal and civil rights
violations. (Doc. 68). This action was originally filed in the
Southern District of Alabama, but was transferred to this
court due to a lack of jurisdiction over the claims. (Doc.
62). Rice has filed two motions to dismiss the second amended
complaint on various grounds. (Docs. 76 & 78). Rice has
also filed a motion to strike Agundis's brief filed in
response to one of the motions to dismiss. (Doc. 89). For the
reasons stated below, the court finds that the motion to
strike is moot and the motions to dismiss are due to be
granted and this case dismissed.
STANDARD OF REVIEW
extent Rice challenges this court's personal jurisdiction
over him pursuant to Federal Rule of Civil Procedure
12(b)(2), the court must undertake a two-step inquiry. The
court is required to determine whether “the exercise of
jurisdiction (1) [is] appropriate under the state long-arm
statute and (2) does not violate the Due Process Clause of
the Fourteenth Amendment to the United States
Constitution.” United Techs. Corp. v. Mazer,
556 F.3d 1260, 1274 (11th Cir. 2009).
extent Rice challenges whether the second amended complaint
states a claim upon which relief can be granted pursuant to
Federal Rule of Civil Procedure Rule 12(b)(6), the
“issue is not whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer
evidence to support the claims.” Little v. City of
North Miami, 805 F.2d 962, 965 (11th Cir. 1986) (quoting
Scheur v. Rhodes, 416 U.S. 232, 236 (1974) (internal
quotation marks omitted)). In considering a motion to
dismiss, the court assumes the factual allegations in the
complaint are true and gives the plaintiff the benefit of all
reasonable factual inferences. Hazewood v. Foundation
Financial Group, LLC, 551 F.3d 1223, 1224 (11th Cir.
12(b)(6) is read in light of Rule 8(a)(2), which requires
“a short and plain statement of the claim showing that
the pleader is entitled to relief, ” in order to
“give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.” See Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)) (internal
quotation marks omitted). “While a complaint attacked
by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff's obligation to provide
the grounds of his entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at 555 (citations, brackets, and
internal quotation marks omitted). “Factual allegations
must be enough to raise a right to relief above the
speculative level....” Id. Thus, “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face, '” i.e., its “factual
content ... allows the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citations omitted). “The plausibility standard
is not akin to a ‘probability requirement,' but it
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id. (quoting
Twombly, 550 U.S. at 557).
alleges multiple claims against Rice in both his individual
and official capacities, including a conspiracy to commit
assault; assault and battery; trespass; “aggravated
cruelty to animals;” witness tampering; “crossing
state boundaries to [a] violate protection order;”
stalking, breaking and entering; rape; sexual assault;
intentional infliction of emotional distress; and outrage.
(Doc. 68). The events are alleged to have occurred while Rice
was a police officer with the City of Columbus, Mississippi
or while he was a deputy sheriff with the Oktibbeha County,
Mississippi Sheriff's Department. (Id. at ¶
1). Agundis appears to be seeking relief, at least in part,
pursuant to 42 U.S.C. § 1983. (Id. at 21).
Background Facts According to the Complaint
asserts that Rice broke into her Columbus, Mississippi home
between July 2012 and December 2013 on multiple occasions to
see Agundis's daughter and to steal food and money.
(Id. at ¶¶ 2, 6, 22-26 & 39-41). Rice
allegedly grew more violent as time went on, and Agundis
claims Rice killed her cat in July of 2012, assaulted her
(Agundis) various times from July to December 2012, and
sexually assaulted and impregnated her in December 2012.
(Id. at ¶¶ 4, 7, 8, 20-21, 27-28, 42-52).
According to Agundis, Rice returned to her residence in March
2013 as Agundis was going to a doctor's appointment. He
pushed her into her house and told Agundis she did not need a
doctor because “Africa[n] women don't use doctors
to have babies.” (Id. at ¶ 9). Agundis
alleges Rice came to the house in July 2013 with a bucket of
plaster and forced Agundis's daughter to plaster
Agundis's naked body. (Id. at ¶ 10).
Agundis further asserts that Rice also attempted to
“abduct” her new-born child in September 2013.
(Id. at ¶ 11).
failing to receive help from various law enforcement agencies
in Mississippi, Agundis moved to Gulf Shores, Alabama, in
December 2013. (Id. at ¶ 13). Thereafter, she
obtained a “Protection [From] Abuse Order” in an
Alabama court against Rice. (Id.) According to
Agundis, Rice actively avoided being served with the
Protection Order. (Id.)
alleges she received threatening text messages from Rice
subsequent to her move to Alabama. She also states that Rice
posted death threats directed at her on social media.
(Id. at ¶ 13).
December 21, 2015, Agundis was in Birmingham, Alabama to
attend a Protection from Abuse hearing. When she arrived at
the courthouse with her daughter, Agundis saw Rice and Regina
Sykes, another Oktibbeha County deputy sheriff. According to
Agundis, Rice identified her to Sykes and Rice had Sykes roll
up some “legal documents” and strike her
“in the abdomen, causing swelling and bruising.”
(Id. at ¶¶ 14 & 17). Agundis asserts
that this incident occurred after Rice had been served with a
copy of an “emergency protection order, forbidding him
or any third-party under his direction [from] contact[ing] or
communicat[ing] with [Agundis].” (Id. at
place the foregoing in context, it also is helpful to review
various proceedings in the state courts of Mississippi. After
Agundis had her child in December 2013, Rice filed suit in
the Chancery Court of Oktibbeha County, Mississippi against
Agundis, seeking to determine paternity, visitation and
custody. (Docs. 17-1; 44-1). Following a trial, the Chancery
Court determined Rice was the natural father of the child.
The court also awarded the parties joint legal custody of the
child, with physical custody remaining with Agundis;
visitation for Rice; and child support for the child. (Docs.
17-3 at 172-78; 44-3 at 172). After Agundis moved to Alabama
she filed numerous motions opposing the award of visitation
rights to Rice. She specifically attempted to have the
findings of the Chancery Court set aside. The decision of the
Chancery Court was affirmed by the Mississippi Court of
Appeals on June 28, 2016. See Adams v. Rice,
So.3d 1086 (Miss. Ct. App. 2016). Rice also filed a petition
for contempt and modification of child custody in November
2015, alleging that Agundis refused to allow him visitation
or contact with their then two-year old child. Adams v.
Rice, 2018 WL 2928703 (Miss. Ct. App. Jun. 12, 2018).
The Chancery Court found Agundis in contempt for failing to
allow Rice to see the child. It also ordered Rice to pay his
child support arrearage. Id. at *2-3. Agundis
challenged that decision in a pro se appeal. The
Mississippi Court of Appeals affirmed the Chancery Court
decision on June 12, 2018.
resigned from the City of Columbus Police Department on
February 14, 2013. (Doc. 76-1 at 2, ¶ 5).
federal action was filed while the child custody proceedings
were still pending in the Chancery Court. (See Docs.
17-3 at 179-245; 44-3 at 179-245). Agundis initially named
numerous other Mississippi defendants, including the Chancery
Court Judge. (Doc. 1 at 1). All the defendants except Rice
previously were dismissed in this action.
Agundis's Second Amended Complaint
second amended complaint is the operative pleading at this
juncture. Therein, she asserts thirteen separate claims
against Rice in his individual and official capacities as a
former police officer for the City of Columbus, Mississippi
(the “City”) and as a deputy sheriff for
Oktibbeha County, Mississippi (the “County”). She
asserts federal claims against Rice purportedly arising under
18 U.S.C. §§ 2261, 2262 and 2265 (doc. 68 at
¶¶ 17 & 34) and under 42 U.S.C. § 1983
(id. at 21). The claims include the following: (1)
conspiracy to commit assault (Count I); (2) assault and
battery (Count II); (3) trespass (Count III); (4) aggravated
cruelty to animals (Count IV); (5) witness tampering (Count
V); (6) crossing state boundaries to violate a protection
order (Count VI); (7) stalking (Count VII); (8) breaking and
entering (Count VIII); (9) rape (Count IX); (10) sexual
assault (Count X); (11) invasion of privacy (Count XI); (12)
intentional infliction of emotional distress (Count XII); and
(13) outrage (Count XIII). (Doc. 68).
responded to the second amended complaint with two motions to
dismiss. The first is advanced by Rice in his official
capacity as a former police officer of the City. (Doc. 76).
Therein, he alleges the amended complaint is due to be
dismissed because there is a lack of personal jurisdiction
and because the claims relate to the time he was a Columbus
police officer and, therefore, are barred by the statute of
limitations. (Id.) The second is advanced by Rice in
his individual capacity and his official capacity as a County
deputy sheriff. (Doc. 78). Specifically, he alleges the
amended complaint is due to be dismissed because (1) Agundis
has no private right of action arising under 18 U.S.C.
§§ 2262, 2262 or 2265; (2) of insufficient service;
(3) of the statute of limitations; (4) Agundis failed to
allege that Rice was acting under color of law; (5) Agundis
failed to allege that her injuries were the result of a
policy, practice, or custom of the public entity employing
Rice; (6) Agundis cannot bring a private action for purported
criminal acts; (7) the court should not exercise supplemental
jurisdiction if the federal claims are dismissed; (8) the
court lacks jurisdiction over the Mississippi-based state-law
claims; and (9) the court should abstain from or not exercise
jurisdiction over Agundis's claims. (Doc. 79 at
asserts that the claims against him in his official capacity
are due to be dismissed because the court lacks jurisdiction
over him in his official capacity. (Docs. 77 at 2-3 & 79
at 19- 24). The United States Supreme Court recently has
reiterated that “[a] court must have the power to
decide the claim before it (subject-matter jurisdiction) and
power over the parties before it (personal jurisdiction)
before it can resolve a case.” Lightfoot v. Cendant
Mortg. Corp., __ U.S. __, 137 S.Ct. 553, 562 (2017). It
also is well-settled in the Eleventh Circuit that a court
should address issues involving personal jurisdiction before
considering the merits of the remaining matters. See
Madara v. Hall, 916 F.2d 1501, 1513-14 (11th Cir. 1990).
In examining the issue of personal jurisdiction, the
following principles apply:
The plaintiff bears the burden of establishing personal
jurisdiction over a non-resident defendant. See S &
Davis Intern., Inc. v. The Republic of Yemen, 218 F.3d
1292, 1303 (11th Cir. 2000). When the issue of personal
jurisdiction is decided on the briefs and accompanying
evidence, but without a discretionary evidentiary hearing, a
plaintiff satisfies his or her burden by demonstrating a
“prima facie case of jurisdiction.”
Francosteel Corp, . Unimetal-Normandy v. M/V Charm, Tiki,
Mortensen & Lange, 19 F.3d 624, 626 (11th Cir.
1994); Madara v. Hall, 916 F.2d 1510, 1514 (11th
Cir. 1990). A plaintiff establishes a prima facie case by
submitting evidence sufficient to defeat a motion for
judgment notwithstanding the verdict. See DeLong Equip.
Co. v. Washington Mills Abrasive Co., 840 F.2d 843, 845
(11th Cir. 1988). [Consistent] with that standard of review,
the court construes the allegations in the complaint as true
if they are uncontroverted by affidavits or deposition
testimony. See Bracewell v. Nicholson Air Serv.,
Inc., 748 F.2d 1499, 1504 (11th Cir. 1984). The Eleventh
Circuit has explained on more than one occasion that,
“[i]f a plaintiff pleads sufficient material facts to
establish a basis for personal jurisdiction and a defendant
then submits affidavits controverting those allegations,
‘the burden traditionally shifts back to the plaintiff
to produce evidence supporting jurisdiction[, ] unless those
affidavits contain only conclusory assertions that the
defendant is not subject to jurisdiction.' ”
Whitney Information Network, Inc. v. Xcentric Venture,
LLC, Slip No. 06-11888, 2006 WL 2243041, *3 (11th Cir.
Aug.1, 2006) (quoting Meier v. Sun Int'l Hotels,
Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002)). If the
evidence conflicts, the court makes reasonable inferences in
favor of the plaintiff, particularly when the jurisdictional
questions are seemingly intertwined with the merits of the
case. See DeLong, 840 F.2d at 845.
Ashton v. Florala Memorial Hosp., 2006 WL 2864413,
*2 (M.D. Ala. Oct 5, 2006). Additionally, as previously noted
in this action by United States Magistrate Judge Sojna
In an action such as this, the court “undertakes a
two-step inquiry to determine whether personal jurisdiction
exists: the exercise of jurisdiction must (1) be appropriate
under the state long-arm statute, and (2) not violate the Due
Process Clause of the Fourteenth Amendment to the United
States Constitution.” United Techs. Corp. v.
Mazer, 556 F.3d 1260, 1274 (2009). As noted supra,
because Alabama's long-arm provision, Rule 4.2(a) of the
Alabama Rules of Civil Procedure, is coextensive with due
process requirements, see Waterproofing Co. v.
Hanby, 431 So.2d 141, 145 (Ala. 1983), the court need
only consider whether the exercise of jurisdiction satisfies
the requirements of due process. Oliver v. Merritt
Dredging Co., 979 F.2d 827, 830 (11th Cir. 1992). Due
process requires both that the defendant have “certain
minimum contacts” with the forum state, and if such
minimum contacts exist, that the exercise of jurisdiction
over the defendant “does not offend traditional notions
of fair play and substantial justice.” Burnham v.
Superior Court of Calif., 495 U.S. 604, 618, 110 S.Ct.
2105, 109 L.Ed.2d 631 (1990) (quoting Int'l Shoe Co.
v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95
(1945)). “This two-part test embodies the controlling
due process principle that a defendant must have ‘fair
warning' that a particular activity may subject it to the
jurisdiction of a foreign sovereign." Vermeulen v.
Renault, U.S.A., Inc., 985 F.2d 1534, 1545 (11th Cir.
There are two types of personal jurisdiction:
“general” and “specific.” There is
general personal jurisdiction over a party when” the
cause of action does not arise out of ... the [party's]
activities in the forum State, ” but there are
“continuous and systematic” business contacts
with the forum state. See Consolidated Development Corp.
v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th Cir. 2000);
see also Sloss Indus. Corp. v. Eurisol, 488 F.3d
922, 925 n.3 (11th Cir. 2007)(“general jurisdiction ...
can only be exercised if the defendant has ‘continuous
and systematic' contacts with the forum”);
Stubbs v. Wyndham Nassau Resort & Crystal Palace
Casino, 447 F.3d 1357, 1360 n.3 (11th Cir. 2006)
(“General jurisdiction arises from the defendant's
contacts with the forum that are not directly related to the
cause of action being litigated.”). The due process
requirements for general personal jurisdiction are more
stringent than for specific personal jurisdiction.
Consolidated Development Corp., 216 F.3d at 1292. On
the other hand, specific jurisdiction “arises out of a
party's activities in the forum that are related to the
cause of action alleged in the complaint.” Id.
at 1291; Helicopteros Nacionales De Colombia v.
Hall, 466 U.S. 408, 414 at n.8, 80 L.Ed.2d 404 (1983).
For specific personal jurisdiction, the contacts at issue
must satisfy the minimum-contacts test. “Minimum
contacts involve three criteria: First, the contacts must be
related to the plaintiff's cause of action or have given
rise to it. Second, the contacts must involve some purposeful
availment of the privilege of conducting activities within
the forum, thereby invoking the benefits and protections of
its laws. Third, the defendant's contacts within the
forum state must be such that [it] reasonably anticipate[s]
being haled into court there.” Sculptchair, Inc. v.
Century Arts, Ltd., 94 F.3d 623, 631 (11th Cir. 1996)
(Doc. 60 at 12-14). Finally, in Seiferth v. Helicopteros
Atuneros, Inc., the Fifth Circuit Court of Appeals held
that personal jurisdiction is claim specific, but where there
are “multiple claims that arise out of different forum
contacts, [the party asserting jurisdiction] must establish
specific jurisdiction for each claim.” 472 F.3d 266,
274 (5th Cir. 2006) (citing 5B Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure: Civil 3d
§ 1351, at 299 n.30 (2004) (“There is no such
thing as supplemental specific personal jurisdiction; if
separate claims are pled, specific personal jurisdiction must
independently exist for each claim and the existence of
personal jurisdiction for one claim will not provide the
basis for another claim.”)).
extent that Agundis's complaint alleges claims against
Rice in his official capacity while he was employed by the
City, the court finds there is insufficient contact within
the State of Alabama for the Court to exercise personal
jurisdiction over those claims. There is no allegation in
Agundis's pleadings that while acting as a Columbus
police officer Rice traveled to Alabama or interacted with
her while she was in Alabama. To the contrary, the record
demonstrates Rice left the Columbus Police Department in
March 2013 and Agundis did not move to Alabama until
December 2013. Accordingly, any claim premised on Rice's
official capacity as a police officer with the City is due to
be dismissed for lack of personal jurisdiction. This would
include all the claims advanced by Agundis in the Second
extent that Agundis alleges claims against Rice in his
official capacity while he was employed by the County, the
only contact Rice purportedly had with Agundis after she
moved to Alabama was occasional texts and personal
interaction with Rice and Sykes in Birmingham on December 21,
2015. Accordingly, any claims alleging liability premised on
Rice's conduct in an official capacity as an County
deputy sheriff for events that occurred in Columbus,
Mississippi are due to be dismissed for lack of personal
jurisdiction. This would include the assault and battery
claim (Count II); the trespass claim (Count III); the
aggravated cruelty to animals claim (Count IV); the stalking
claim (Count VII); the breaking and entering claim (Count
VIII); the rape claim (Count IX); the sexual assault claim
(Count X); and the invasion of privacy claim (Count XI). It
would also include the intentional infliction of emotional
distress (Count XII) and the outrage claims (Count XIII) to
the extent they are premised on conduct occurring in
Mississippi. Each of these claims involves actions in
Mississippi before Agundis moved to Alabama. Specifically,
the assault and battery is alleged to have occurred during
July 2012 and October 2013 at Agundis's home; the
trespass is alleged to have occurred from June 7, 2012, until
December 2013 at her residence; the aggravated cruelty to
animals is alleged to have occurred in September 2013; the
stalking is alleged to have occurred in Columbus from July
2012 until December 2013; the breaking and entering is
alleged to have occurred from July 2012 to December 2013 at
Agundis's residence; the rape is alleged to have occurred
on December 12, 2012; the sexual assault is alleged to have
occurred July 2013; the invasion of privacy is alleged to
have occurred while Rice was with the City; and the
intentional infliction ...